Afghanistan Analysts Network – English

War and Peace

The ‘Other Guantanamo’ (11): More transfers, a court’s scrutiny and possible redress

Kate Clark 7 min

The United States military spokesman has confirmed to AAN that another detainee has left the detention facility on Bagram Airbase, a ‘German-Moroccan’, Muhammad Abdullawi. A Russian detainee, named by the US military as Irek Hamidullan, has also been flown out – to the US to appear in a federal court on terrorism charges; the first foreign combatant captured in Afghanistan to do so. Meanwhile, in London, the High Court has given permission for two claims, one for redress, the other for accountability against the British state. As AAN’s Kate Clark reports, it will mean the alleged wrong-doings of both US and UK troops – illegal detention, torture and rendition – will come under the legal and public scrutiny.

The High Court in London allows claims by two former Bagram detainees, both Pakistanis, to go ahead, writes Kate Clark; both were detained for a decade. The screenshot of one of the organisations gathering their details (The Rendition Project) shows one of them: Yunus Rahmatullah. He spoke about having been subjected to severe assaults, incommunicado detention, exposure to extremes of temperature and sound, tear gas and long periods of darkness.

This is an update of an earlier dispatch which gives more detail on who is being held at Bagram, who has been transferred in the last year and what international law says about detention.

Moroccan and a Russian leave Bagram…

There are now ten foreigners being held at the detention centre on Bagram airbase, the US military spokesman told AAN. The US has been working hard to clear the centre of detainees ahead of the 31 December deadline when, according to the US-Afghan Bilateral Security Agreement (see AAN reporting here), all US detention facilities on Afghan soil must close. (1) When AAN last reported on Bagram in mid-October, the spokesman said there were then 13 detainees. Three, then, have been transferred out.

We know of two recent transfers, a Moroccan, Muhammad Abdullawi, and a Russian, Irek Hamidullah. The US military spokesman has confirmed to AAN that Abdullawi has left Bagram, and leaked documents on negotiations between the US and Morocco from 2 July 2014 suggest the plan was to repatriate him. However, that is not confirmed.

Abdullawi was detained on 8 May 2011 in Ghazi Kelay, near Qalat in Zabul during a joint ISAF-Afghan operation reported by ISAF and the Afghan authorities. The latter described him as a “Germany-based Moroccan al Qaeda foreign fighter facilitator.”  Der Spiegel reported that he was 30 years old at the time of his capture and was living in Germany until 2010 when his temporary right of residency had run out. After leaving Germany, he went to Turkey, where he was arrested and then released; he then carried on his way to Pakistan from where he entered Afghanistan. A leaked ISAF report, State of the Taliban, quoted him talking about choosing whether to fight a ‘jihad’ in Afghanistan or Chechnya.

The other detainee who is confirmed to have left Bagram is Irek Hamidullan (as named by US officials) or, the more plausible Irek Khamidullin (according to the Russian media). He was flown to the US and appeared in a federal court in Virginia on 2 November. “[S]hackled and heavily guarded by federal agents,” reported the Associated Press, “[he] said little during his initial appearance” as he faced 12 terrorism charges, including providing material support to terrorists, conspiracy and attempting to destroy an aircraft of the US armed forces, and conspiracy to use a weapon of mass destruction. Officials, however, told The New York Times he is “not believed to be a major terrorist.”

The US version of events is that Hamidullan, a veteran of the 1980s Soviet occupation of Afghanistan and a man now in his mid to late 50s, had deserted, converted to Islam, fought with the mujahedin against his former comrades and then ended up fighting US forces after the 9/11 attacks. A different story has appeared in the Russian media which described ‘Irek Khamidullin’ as an ethnic Tatar Muslim, a tank specialist who completed his active duty inside the Soviet Union, not Afghanistan. After a failed attempt at jihad in Chechnya in 1999 (pro-Russian Chechens executed most of his comrades), he was detained in 2004 by Pakistani forces while trying to cross into Afghanistan (the first of two failed attempts to do so, see here) and deported back to Russia.

American officials have said he was captured after being wounded during an assault on an Afghan border post in 2009 and is suspected of involvement in several attacks in which American troops were wounded or killed.

… and two Pakistanis get the chance for legal redress

 Meanwhile, the High Court in London has given permission for two claims by two Pakistanis to go ahead: both were captured by British forces in Iraq in early 2004, handed over to US forces and rendered to Bagram where they were detained for a decade. Yunus Rahmatullah was finally repatriated to Pakistan in May 2014 and Amanatullah Ali in September. In Rahmatullah’s case, the US military review board had deemed him suitable for release in 2010 and, according to his family, Ali in 2011. Neither was ever charged with any crime.

Legal charities (also see here) have said Amanatullah Ali (who is now 50) was a rice exporter who regularly made business trips to Iran and had crossed the border to visit the holy Shia cities of Najaf and Karbala, when he was detained by UK forces in February 2004. They say his compatriot, Yunus Rahmatullah (now 32), who is from Baluchistan, had been working in real estate in Iraq. According to Rahmatullah’s legal statement, the two men had been planning to go into business together, exporting rice to Iraq (Rahmatullah, who grew up in the Gulf, is an Arabic speaker) and were living in the same building in Baghdad when it was stormed by British soldiers. The UK accused the two of belonging to the Sunni-sectarian Pakistani group Lashkar-e Tayba – which was particularly curious in Ali’s case since he is Shia.

The two were quickly handed over to US forces who rendered them to Bagram. Because, so far, it is generally Rahmatullah claims that have come to court, we have most detail about what he alleged happened to him. However, as their situations are similar, the legal judgements, including the one on 14 November, also apply to Ali. The allegations are extremely serious: unlawful detention, torture and inhuman or degrading treatment by both US and UK forces. Some of the allegations were summed up in the November 2014 judgment:

Mr Rahmatullah alleges that, while in detention, he was subjected to torture and other serious mistreatment including severe assaults, incommunicado detention, exposure to extremes of temperature and sound, tear gas and long periods of darkness, being placed in a tiny ‘air lock’ cell, being kept naked with other detainees, being beaten on the soles of his feet with rubber flex, and being immersed upside down into tanks of water.

Breach of the Geneva Conventions

Uncovering what happened to the two men (who to their friends and family had simply disappeared in 2004) was extremely difficult. Then, as now, the US refuses to identify those it holds at Bagram. As for the British government, it wrongly told Parliament in 2004 that all those detained by UK forces in Iraq and transferred to US custody were still in Iraq. Eventually, in 2009, it had to admit it had given “inaccurate information on this particular issue.” It was only in 2010 that the legal charity, Reprieve, following painstaking investigations, was able to publically name the two men and, in May 2011, it sued the British government for denying Rahmatullah’s habeas corpus rights. This is an ancient right in English law protecting people against arbitrary detention, and means detention has to be justified in a court of law – or the detainee must be released.

In December 2011, the Court of Appeals ordered the government to issue a writ of habeas corpus, requesting the US military to release Rahmatullah. The basis of this request was a 2003 Memorandum of Understanding signed by the UK, US and Australia which said that:

Any prisoners of war, civilian internees and civilian detainees transferred by a detaining power [in this case, the UK] will be returned by the accepting power [the US] to the detaining power without delay upon request by the detaining power.

However, the US refused to comply, saying it had no obligations under international law to return the two men to the UK. The British government backed down and the Court of Appeals cancelled the writ. Lawyers then took the case to the Supreme Court. This was in October 2012, while both men were still in Bagram.

The UK Supreme Court ruled that there was “clear prima facie evidence that [Rahmatullah] is detained unlawfully under the Geneva Convention,” which, it said, “forbids the forcible transfer of protected persons from the occupied territory, in this case Iraq… stipulates that internment should cease as soon as possible after the close of hostilities… [and] requires [that] every interned person must be released by the detaining power as soon as the reasons which necessitated his internment no longer exist” (italics in original judgment (for a shorter version, see the press summary here). The UK, the judgement said, had a duty to “ensure [Rahmatullah] was not being held in breach of the Geneva Conventions or request his return.” However, in a split judgement (5:2), the court decided the British government had done all it could to secure the men’s release.

The new ruling

On 19 November 2014, the High Court in London made a legal ruling which permits two claims to proceed. Rahmatullah and Ali now have permission for a judicial review. The two men are seeking an order requiring the British government, in the words of the judgment, to “conduct an investigation into the circumstances of their transfer into US custody and of the UK’s failure to demand their return or to take any steps to prevent their transfer to Afghanistan.”

Rahmatullah can also now go ahead with a civil claim for damages, which was started in March 2013, from the British state. This relates to his alleged illegal detention and torture suffered at the hands of UK and US troops. As the relevant points of law have now been ruled on, Ali will also now be able to sue the British government. (2)

The Ministry of Defence had argued it should not face the courts because the alleged unlawful behaviour had also been conducted by US forces. It also said British courts had no jurisdiction over the acts of a foreign state, ie the US, and also that Britain had ‘state immunity.’ Rahmatullah’s lawyers argued that UK forces transferred him into US custody knowing he was likely to be subject to unlawful detention and torture, and that it should share joint liability for the treatment of the men. The court rejected the government’s arguments, saying “it would be failing in its duty” if it did not hear claims of unlawful detention and torture made against UK forces.

What all this means is that there should now be a public picking over of the grave allegations of illegal detention and torture made against both British and American forces. The actions of the US and UK have frequently been shrouded in secrecy – the British government had to be forced to admit UK forces had detained the two men and had to be sued before publically identifying them, and the US still refuses to say who it holds at Bagram (although AAN, sifting through the multiple publically available and leaked sources, has put together as complete a list as is possible). Such secrecy encourages miscarriages of justice, including, in this case, violations of the Geneva Conventions. As it is also much more difficult to get such cases into the American courts, the fact that US actions will be scrutinised in Britain is also significant. If all goes well, a strong light will be shone into the murky circumstances in which Yunus Rahmatullah and Amanatullah Ali came to lose ten years of their lives in Bagram.

 

(1) In earlier dispatches, we reported that with the US combat operation coming to an end on 31 December, its authority to detain became questionable. It now seems the US combat operation may be continuing on a limited basis. However, spokesmen have been adamant Bagram is to close, something also mandated in the BSA.

(2) The legal ruling also covers three Iraqis who were also handed over by UK to US forces in Iraq and allegedly suffered abuse can also now go ahead with their claims. They include one man who has he alleged suffered severe sexual abuse at the Abu Ghraib prison in Baghdad.

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Taleban Detention US Bagram Torture Taliban UK Jihad illegal detention prisoners of war rendition

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