Neutral Citation No: [2002] ewca civ 1598 in the supreme court of judicature court of appeal



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Case No: C/2002/0617A; 0617B

Neutral Citation No: [2002] EWCA Civ 1598

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE AND DIVISIONAL COURT

The Hon. Mr Justice Richards

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 6th November, 2002

B e f o r e :



LORD PHILLIPS, MR

LORD JUSTICE WALLER

and


LORD JUSTICE CARNWATH

- - - - - - - - - - - - - - - - - - - - -



 

The Queen on the application of Abbasi & Anor.

Claimants

 

- and -

 

 

Secretary of State for Foreign and Commonwealth Affairs

& Secretary of State for the Home Department

Defendants

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -



Mr N Blake QC; Mr Philippe Sands and Mr Ben Cooper (instructed by Messrs Christian Fisher Khan for the Claimants)

Professor C Greenwood QC; Mr Philip Sales (instructed by The Treasury Solicitor for the Defendants)

Hearing Dates: 10, 11 and 12 September 2002

- - - - - - - - - - - - - - - - - - - - -

 JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)



INDEX

Abbasi and another

-v-

Secretary of State for Foreign and Commonwealth Affairs

& Secretary of State for the Home Department

Introduction

Paras. 1-2

Mr Abbasi’s predicament

Paras. 3-8

The position according to the United States Government and the United States Courts

Paras. 9-17

Expressions of concern

Paras. 18-21

The claimants’ complaint

Para. 22

The relief sought

Paras. 23-25

The issues

Para. 26

The submissions

Para. 27

Is the legitimacy of an action taken by a foreign sovereign state justiciable?

Paras. 28-36

Is executive action in the conduct of foreign affairs justiciable?

Paras. 37-50

Discussion

X

Is the legitimacy of executive action taken by a foreign state justiciable?

Paras. 51-57

Our view of Mr Abbasi’s predicament

Paras. 58-67

Is the conduct of the Secretary of State justiciable?

Paras. 68-106

Are the applicants entitled to relief in the present case?

Paras. 107-108



Lord Phillips:

This is the judgment of the Court to which all members have contributed.



 

Introduction

  1. Feroz Ali Abbasi, the first claimant, is a British national. He was captured by United States forces in Afghanistan. In January 2002 he was transported to Guantanamo Bay in Cuba, a naval base on territory held by the United States on long lease pursuant to a treaty with Cuba. By the time of the hearing before us he had been held captive for eight months without access to a court or any other form of tribunal or even to a lawyer. These proceedings, brought on his behalf by his mother, the second claimant, are founded on the contention that one of his fundamental human rights, the right not to be arbitrarily detained, is being infringed. They seek, by judicial review, to compel the Foreign Office to make representations on his behalf to the United States Government or to take other appropriate action or at least to give an explanation as to why this has not been done.

  2. On 15 March 2002 Richards J. refused the application for permission to seek judicial review. However, on 1 July 2002 this court granted that permission, retained the matter for itself, and directed that the substantive hearing commence on 10 September 2002. It did so because the unusual facts of this case raise important issues. To what extent, if at all, can the English court examine whether a foreign state is in breach of treaty obligations or public international law where fundamental human rights are engaged? To what extent, if at all, is a decision of the executive in the field of foreign relations justiciable in the English court? More particularly, are there any circumstances in which the court can properly seek to influence the conduct of the executive in a situation where this may impact on foreign relations? Finally, in the light of the answers to these questions, is any form of relief open to Mr Abbasi and his mother against the Secretary of State for Foreign and Commonwealth Affairs?

Mr Abbasi's predicament

  1. Mr Abbasi was one of a number of British citizens captured by American forces in Afghanistan. He was, with others, transferred to Guantanamo Bay. Those currently detained there include seven British citizens. As soon as she learned what had happened to her son, Mrs Abbasi made contact with the Foreign Office. Through lawyers, she pressed the Foreign Office to assist in ensuring that the conditions in which her son was detained were humane. She has also pressed the Foreign Office to procure from the United States authorities clarification of her son's status and of what is to be done with him in the future.

  2. Evidence of action taken by the United Kingdom Government in relation to Mr Abbasi and the other British detainees in Guantanamo Bay has been provided in a witness statement by Mr Fry, a Deputy Under-Secretary of State for Foreign and Commonwealth Affairs. He speaks of close contact between the United Kingdom Government and the United States Government about the situation of the detainees and their treatment and of the consistent endeavour of the government to secure their welfare and ensure their proper treatment. To that end, we are told, the circumstances of the British detainees have been the subject of regular representations by the British Embassy in Washington to the United States Government. They have also been the subject of direct discussions between the Foreign Secretary and the United States Secretary of State as well as 'numerous communications at official level'.

  3. The government was able to obtain permission from the United States Government to visit detainees at Guantanamo Bay on three occasions, between 19 and 20 January, between 26 February and 1 March and between 27 and 31 May. These visits were conducted by officials of the Foreign and Commonwealth Office and members of the security services. The former were able to assure themselves that the British prisoners, including Mr Abbasi, were being well treated and appeared in good physical health. By the time of the third visit, facilities had been purpose built to house detainees. Each was held in an individual cell with air ventilation, a washbasin and a toilet. It is not suggested by the claimants that Mr Abbasi is not being treated humanely.

  4. The members of the security services took advantage of these visits to question Mr Abbasi with a view to obtaining information about possible threats to the safety of the United Kingdom. Initially this was the subject of independent complaint by the claimants, but before us the argument has focussed on the allegation that the Foreign and Commonwealth Office is not reacting appropriately to the fact that Mr Abbasi is being arbitrarily detained in violation of his fundamental human rights.

  5. The position of the Foreign and Commonwealth Office is summarised by Mr Fry in the following terms:

"In cases that come to us with a request for assistance, Foreign and Commonwealth Ministers and Her Majesty's diplomatic and consular officers have to make an informed and considered judgement about the most appropriate way in which the interests of the British national may be protected, including the nature, manner and timing of any diplomatic representations to the country concerned. Assessments of when and how to press another State require very fine judgements to be made, based on experience and detailed information gathered in the course of diplomatic business.

In cases where a person is detained in connection with international terrorism, these judgements become particularly complex. As regards the issue of the detainees now at Guantanamo Bay, as well as satisfying the clear need to safeguard the welfare of British nationals, the conduct of United Kingdom international relations has had to take account of a range of factors, including the duty of the Government to gather information relevant to United Kingdom national security and which might be important in averting a possible attack against the United Kingdom or British nationals or our allies; and the objectives of handling the detainees securely and of bringing any terrorist suspects to justice."



  1. In or about February 2002 the claimants initiated habeas corpus proceedings in the District Court of Columbia. As we shall explain, rulings in proceedings brought by other detainees in a similar position demonstrate that Mr Abbasi's proceedings have, at present, no prospect of success.

The position according to the United States Government and the United States Courts

  1. On 2 July 2002 the First Secretary at the American Embassy in London wrote to solicitors acting for the claimants in the following terms:

"The United States Government believes that individuals detained at Guantanamo are enemy combatants, captured in connection with an on-going armed conflict. They are held in that capacity under the control of U.S. military authorities. Enemy combatants pose a serious threat to the United States and its coalition partners.

Detainees are being held in accordance with the laws and customs of war, which permit the United States to hold enemy combatants at least for the duration of hostilities. I can assure you that the United States is treating these individuals humanely and in a manner consistent with the principles of the Third Geneva Convention 1949. Representatives of the International Committee of the Red Cross are at Guantanamo Bay and meet with detainees individually and privately.

Under international humanitarian law, captured enemy combatants have no right of access to counsel or the courts to challenge their detention. If and when a detainee is charged with a crime, he would have the right to counsel and fundamental procedural safeguards."


  1. The Third Geneva Convention 1949 relates to Prisoners of War. The United States has not, however, accepted that prisoners held at Guantanamo have the status of prisoners of war. The position of the United States is made plain in the following passage of a statement made by the United States Press Secretary on 2 February 2002:

"Taliban detainees are not entitled to POW status ... they have not conducted their operations in accordance with the laws and customs of war ... al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are not entitled to POW status under the treaty."

The distinction between lawful and unlawful combatants is drawn in a passage in a Supreme Court decision ex parte Quirin (1942) 317 U.S. 1 30-31 (quoted at p.7 of A-G's response in proceedings in the United States District Court for the Eastern District of Virginia, Norfolk Division Hamdi v Rumsfeld of Bundle 2 to which we shall return):

"By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful combatants and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful."


  1. Mr Abbasi is, as we understand the position, detained pursuant to the executive authority entrusted to the President as Commander in Chief of the US Military. It is not clear whether he is detained pursuant to a Military Order issued by the United States President on 13 November 2001 relating to "Detention, treatment, and trial of certain non-citizens in the war against terrorism". We can summarise the effect of that Order as follows. The Order stipulates that it applies to any individual who is not a citizen of the United States with respect to whom the President has determined in writing that there is reason to believe (1) that such individual is a member of al-Qaeda or (2) that he was engaged in international terrorism, or (3) that it is in the interests of the United States that he should be subject to the order. The order provides that any such individual will be detained at an appropriate location and treated humanely. It provides that any individual "when tried" will be tried by a military tribunal, and contains extensive provisions relating to such trial. It further provides:

"With respect to any individual subject to this order ..... the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal."

There is no indication whether Mr Abbasi is going to be tried and thus whether the Order applies to him.



  1. On 19 February 2002 three prisoners detained at Guantanamo Bay, two British and one Australian, commenced a civil action in the District Court of Columbia – Rasul et al. v George Walker Bush et al. in which they petitioned for a writ of habeas corpus. The government moved to dismiss the action for want of jurisdiction. A similar motion was brought to dismiss an action brought by relatives of ten Korean citizens, who were also detained at Guantanamo Bay – Odah et al. v United States of America et al. The petitioners sought an order that the detainees be informed of the charges, if any, against them, be permitted to consult with counsel and have access to a court or other impartial tribunal. The Court treated this as an application for habeas corpus. After hearing argument the Court ruled that the military base at Guantanamo Bay was outside the sovereign territory of the United States and that, in consequence of this fact and the fact that the claimants were aliens, the Court had no jurisdiction to entertain their claims. The position would have been different had they been American subjects.

  2. In so holding, the District Court purported to follow a majority decision of the Supreme Court in Eisentrager v Forrestal (1949) 174 F.2d 961. That case concerned German citizens who had been convicted of espionage by a United States military commission after the surrender of Germany at the end of the Second World War and repatriated to Landsberg Prison in Germany to serve their sentences. The prison was under the control of the United States army. The prisoners petitioned for writs of habeas corpus. Giving the decision of the majority, Justice Robert Jackson held that a court was unable to extend the writ of habeas corpus to aliens held outside the territory of the United States. He distinguished between aliens and citizens, observing that "citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar".

  3. The District Court distinguished the position of aliens held at a port of entry into the United States and seeking immigration. They are entitled to a writ of habeas corpus to ascertain whether the restraint is lawful – Nishimura Ekiu v. United States (1892) 142 U.S. 651, 660.

  4. We are informed that the decision in Rasul is subject to appeal. We are further informed that regardless of the outcome of the appeal, a petition for certiorari is almost certain to be filed with the Supreme Court. In these circumstances we cannot proceed on the basis that the last word has been spoken by the United States courts on their jurisdiction to entertain a claim for habeas corpus on behalf of detainees at Guantanamo. On the face of it we find surprising the proposition that the writ of the United States courts does not run in respect of individuals held by the government on territory that the United States holds as lessee under a long term treaty.

  5. Mr Fry has placed before the court a pleading in a case, Hamdi v Donald Rumsfeld, concerning a national of Saudi Arabia, born in Louisiana and claiming to be an American citizen. He was captured in Afghanistan, held initially in Guantanamo Bay but then transferred to custody in Norfolk, Virginia. His father has petitioned on his behalf for habeas corpus in the District Court for the Eastern District of Virginia, Norfolk Division. No point has been taken on jurisdiction, no doubt because Mr Hamdi is detained on United States territory and claims American citizenship. The pleading in question is the response of the Attorney-General in what appears to be the final stages of the hearing at first instance. The material parts of this response can be summarised as follows:

    1. Hamdi's detention is lawful since he has been seized by the military and is detained as an enemy combatant;

    2. there is no obligation under the law and customs of war for captors to charge combatants with an offence;

    3. prisoners of war have no right to counsel;

    4. the military has properly determined that Hamdi was an enemy combatant, "the executives' determination that someone is an enemy combatant and should be detained as such [being] one of the most fundamental military judgments of all",

    5. the sworn declaration explaining the military's determination readily satisfies any constitutionally appropriate standard of judicial review.

Thus, in essence, the submission is that the war on terrorism is at least the equivalent to a conventional war, the military's judgment as to who is an enemy combatant should be upheld, and the rights available to citizens in relation to ordinary criminal prosecutions, e.g. the right to counsel, and the right to be brought before a court and charged within a reasonable time, are inapplicable.

  1. The Attorney-General's response indicates that his submissions accord with observations of the Court of Appeals of the Fourth Circuit in interlocutory hearings in the same proceedings. Once again it seems likely that these proceedings will, whatever their outcome, be subject to appeal and thus will not represent the last word on the extent to which the status of a person held as an enemy combatant is open to review by the courts.

Expressions of concern

  1. There have been widespread expressions of concern, both within and outside the United States, in respect of the stand taken by the United States government in cases such as Hamdi. On 16 January 2002 the United Nations High Commissioner for Human Rights issued a statement which included the following assertions

"All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949.

The legal status of the detainees, and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention."



  1. Submissions made in Hamdi seem, however, to entail that the decision of the military as to who is an enemy combatant is almost unchallengeable. Furthermore, whereas in a conventional war prisoners of war have to be released at the end of hostilities, there is the possibility that, by denying the detainees captured during the war against terrorism the status of prisoners of war, their detention may be indefinite. The position of the United States Administration was described in an article about two Australian detainees in the Sydney Morning Herald for 17 May 2002, entitled 'At the President's Pleasure', in this way:

"What received less attention until recently was the Administration's plan to detain the men for as long as it deemed they posed a threat to American security. The White House is upfront about its intention to change the established rules of war. "What the Administration is trying to do is create a new legal regime," the Deputy Assistant Attorney-General, John Yoo, said in a speech earlier this year.

The old legal regime is the Geneva Convention, designed to protect legitimate prisoners of war captured during conflicts. Under the convention, it is not a crime to be a member of an enemy's army, and POWs are free to go home after the end of hostilities unless they are charged with a war crime or a crime against humanity."



  1. In her 8th Witness statement Miss Christian suggests that countries other than the United Kingdom are also concerned about their citizens being held without due process. One matter of particular concern relates to the length of detention. As Miss Christian points out, a citizen of the United States has the right to go before a court to challenge the legality of his detention. That right at the very least compels the US military to say whether the particular individual is being held as an enemy combatant. In practice, it enables that individual to argue the points of concern and challenge the response of the US government exemplified by the A-G's response in Hamdi. Thus Miss Christian submits that there is serious discrimination between US citizens and non-US citizens held as enemy combatants.

  2. The Inter-American Commission on Human Rights is an organ of the Organisation of American States, of which the United States is a member. By letter dated 12 March 2001 the Commission requested that the United States:

"take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent Tribunal."

The United States response was delivered under cover of a letter dated 11 April, the letter stating:

"The United States wishes to inform the Commission that the legal status of the detainees is clear, that the Commission does not have jurisdictional competence to apply international humanitarian law, that the precautionary measures are neither necessary nor appropriate in this case, and that the Commission lacks authority to request precautionary measures of the United States."

The Commission made observations on 13 May 2002, and the US further responded on 15 July. Following this the Commission reasserted its authority requesting precautionary measures by letter dated 23 July 2002. Two paragraphs of that decision are worth quoting:

"In this connection, the Commission must emphasize the importance of ensuring the availability of effective and fair mechanisms for determining the status of individuals falling under the authority and control of a state, as it is upon the determination of this status that the rights and protections under domestic and international law to which those persons may be entitled depend. This fundamental prerequisite is reflected in the provisions of numerous international instruments, including Article 5 of the Third Geneva Convention and Article XVIII of the American Declaration, which must be interpreted and applied so as to be given practical effect. Partly for this reason, human rights supervisory bodies such as this Commission may raise doubts concerning the status of persons detained in the course of an armed conflict, as it has in the present matter, and require that such status be clarified to the extent that such clarification is essential to determine whether their human rights are being respected. In light of the principle of efficacy, it is not sufficient for a detaining power to simply assert its view as to the status of a detainee to the exclusion of any proper or effectual procedure for verifying that status.

Notwithstanding this basic precept which underlies the Commission's present request for precautionary measures, the United States has not provided the Commission with any information concerning steps that have been taken to clarify the legal status of each of the detainees at Guantanamo Bay. Rather, it has reiterated the view asserted by the United States prior to the adoption of the Commission's measures, namely that the legal status of the detainees is clear because the Executive Branch of the US government considers that neither the Taliban nor the al Qaeda detainees meet the criteria applicable to lawful combatants under the Third Geneva Convention. The Commission has already determined, however, that doubts continue to exist concerning the legal status of the detainees, and that it remains entirely unclear from their treatment by the United States what minimum rights under international human rights and humanitarian law the detainees are entitled to. The United States has only said that it "is treating and will continue to treat all of the individual detained at Guantanamo Bay humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the [Geneva Convention]." While the Commission is encouraged that the United States intends to treat the detainees humanely, this statement appears to confirm the Commission's previous finding that, in the State's view, the nature and extent of rights afforded to the detainees remain entirely at the discretion of the US government. And as indicated by the Commission in its initial request, this is not sufficient to comply with the United States' international obligations."





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