Wednesday, 4 March 2009

ICC issues arrest warrant against Sudan president

The International Criminal Court (ICC) today issued an arrest warrant and charged the Sudanese head of state Omar al-Bashir with war crimes and crimes against humanity arising out of the conflict in Darfur. The judges dismissed the prosecution's most contentious charge of genocide which arose out of allegations that Bashir had tried to wipe out three non-Arab ethnic groups.This is the first time the ICC has issued an arrest warrant against a sitting head of state.An aide to President Bashir was quoted in the Guardian as describing the decision as “neo-colonialism”; whilst protesters took to the streets of the Sudanese capital, Khartoum.

The ICC, in its press release, reported that

“The Chamber found that Omar al Bashir, as the de jure and de facto President of Sudan and Commander-in-Chief of the Sudanese Armed Forces, is suspected of having coordinated the design and implementation of the counter-insurgency campaign. In the alternative, it also found that there are reasonable grounds to believe that he was in control of all branches of the “apparatus” of the State of Sudan and used such control to secure the implementation of the counter-insurgency campaign.”

Human rights groups, including Amnesty International and Human Rights Watch, welcomed the decision but there has been disquiet amongst those who have been trying to broker peace talks in the area. Arab states and the African Union had argued for a postponement of the charges to allow Bashir a final chance to end the Darfur conflict while not under duress.

Sudan does not recognise the ICC, and Bashir said the court could "eat" the arrest warrant, which he described as a western plot to hinder Sudan's development. Despite this, the case will raise questions about his political future.

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Friday, 13 June 2008

Primer on US Supreme Court decision on Constitutional Rights in Guantanamo Bay

On June 12th the U.S. Supreme Court handed down its judgment in the combined cases of Boumediene v Bush and Al Odah v United States (judgment). By a majority of 5-4 the Court held, in a judgment written by Kennedy J., that the Constitutional protection of habeas corpus applied to those detained in Guantánamo Bay who, as a result, are entitled to take habeas petitions in federal district courts. The Court further held that the review mechanisms currently operating in the base (i.e. Combatant Status Review Tribunals with limited federal appeal) are not adequate alternatives to habeas corpus and therefore do not preclude habeas petitions. Given the significance of the decision an unusually lengthy post follows on the decision of the Court. interested parties are strongly advised to read also the concurring and dissenting opinions, all of which are spirited and reveal the extent to which the Court is fundamentally divided on the question of executive detention of those identified as terrorists by the Executive branch.

As an initial matter the Court held that Congress has successfully stripped federal courts of jurisdiction to hear habeas corpus petitions brought by detainees in Guantánamo Bay under the statutory habeas provisions. As a result, if the petitioners are to be entitled to bring any habeas claim it must be on the basis of the constitution. [Interestingly the Court did not consider whether there was any basis for bringing such a claim reliant on customary international law or international human rights law treaties, which might have also been a viable (although necessarily weaker) basis for finding in the petitioners’ favour. These international legal arguments were never presented to the Court by counsel for the petitioners, a decision that I criticise in an article forthcoming in the Israel Law Review and available in unformatted form here].

Article I(9)(2) of the U.S. Constitution, known as the Suspension Clause, provides that the privilege of habeas corpus may not be suspended except where invasion or security requires it. This has been interpreted as enshrining a right to habeas in the Constitution (Ex parte Bollman). The main argument proposed by the Government was that this constitutional provision did not apply to the petitioners because they were located outside of the territorial jurisdiction of the United States. this argument was refuted on two bases – firstly the importance of habeas corpus as one of the few rights protected in the US Constitution in its original form, i.e. before the Bill of Rights was introduced (a point I made in the ICLJ and Panoptica in 2007), and secondly the historical meaning of the writ as one that extended to every situation of effective sovereignty even in the absence of formal sovereignty. In an important passage, on p. 15, Kennedy J. holds:

“In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary ill have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account…The separation-of powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.”


In the earlier case of Rasul v Bush Kennedy J. had indicated his belief that the Constitution might run to Guantánamo Bay because it was essentially an unincorporated territory of the United States. This reasoning, heavily influenced by The Insular Cases, arises in a much more central fashion in yesterday’s judgment. On pages 22 – 25 Kennedy J. held:

“Guantanamo Bay is not formally part of the United States… And under the terms of the lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.”…Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base…Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory”.


Building on both of these bases Kennedy J. hands down an extremely strongly worded passage on the extra-territorial application of the US Constitution on p.p. 35-36 that at once constrains notions that the Executive can act with impunity provided it acts extra-territorially and asserts the right of the federal courts to ensure the effective separation of powers no matter where the state may be acting:

“The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.”

Kennedy J. then goes on to identify the three key considerations in assessing whether the Constitutional right to habeas corpus applies in any particular instance of extra-territorial detention: (1) the citizenship and status of the detainee and the adequacy of the process by which a decision to detain was made, (2) the nature of the sites of apprehension and detention, (3) the practical difficulties involved in resolving the petitioner’s entitlement to the writ of habeas corpus (p.p. 36-37). By application of these criteria he held, at p. 41:

“It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting)”

Having held that the petitioners are entitled to habeas corpus or an adequate alternative the Court went on to consider the basic requirements of a review process in order to meet Constitutional requirements. Although Kennedy J. expressly states that the elements identified in the judgment are not exhaustive (p.p. 49-50) he outlines the following: (1) the review process must provide opportunity for the petitioner to make a meaningful case that his detention is unlawful, (2) the review body must have the capacity to order release although that is not the only remedy that might be provided in the occasion of a successful petition, (3) where a person is detained on the basis of executive, rather than court, order the review tribunal must be enabled to conduct a thorough and meaningful review in relation to whether due process has been accorded. In sum, he held, at p. 57:

“For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.”

And, at p. 58:

“[W]hen the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.”

The processes available to Guantanamo Bay detainees under the applicable statutes (i.e. Detainee Treatment Act 2005 and Military Commissions Act 2006) did not, the Court held, satisfy these requirements. The Court held that s. 7 of the Military Commissions Act 2006 is unconstitutional (p.66), and that the Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition (p. 66). In his closing passage Kennedy J. appears to try to placate those who will protest that this decision constitutes an unconscionable burden on the Executive in its attempts to secure the United States against the contemporary threat but nevertheless clearly asserts the Court’s conviction that it is entitled, if not obliged, to ensure that basic principles of the Rule of Law are maintained notwithstanding substantial security threats (p.p. 68-69). The passage, although lengthy, is worth quoting in full:

“In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches…Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not.

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.

Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.”

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Sunday, 27 April 2008

Legal Interpretations and Interrogation Techniques in the War on Terrorism

Today’s lead story in the New York Times reveals how the US Justice Department’s legal advice to CIA agents on acceptable interrogation techniques was worded following the Supreme Court’s decision in Hamdan (2006) that Common Article 3 of the Geneva Conventions applies to Guantánamo Bay detainees. According to the story:

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees.

While the Geneva Conventions prohibit “outrages upon personal dignity,” a letter sent by the Justice Department to Congress on March 5 makes clear that the administration has not drawn a precise line in deciding which interrogation methods would violate that standard, and is reserving the right to make case-by-case judgments.

….

The legal reasoning included in the latest Justice Department letters is less expansive than what department lawyers offered as recently as 2005 in defending the use of aggressive techniques. But they show that the Bush administration lawyers are citing the sometimes vague language of the Geneva Conventions to support the idea that interrogators should not be bound by ironclad rules.

The article is a (short) must-read for all those who are interested in the role that law and lawyers have played in the attempts by the United States to reshape international legal standards since 9/11. It also ties in nicely with the papers presented at last Wednesday’s CCJHR seminar entitled ‘How the US Can Lose the War on Terror’ (delivered by John D. Hutson) at which the discussion paper, which I presented, was about lawyers’ complicity. The seminar will soon be available for viewing on UCC Faculty of Law’s video archive, and my discussion paper can be accessed here.

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Thursday, 17 April 2008

How the US Can Lose the War on Terror - 23 April 2008

On 23 April 2008 the Centre for Criminal Justice and Human Rights will host a lecture from Dean John D. Hutson, President and Dean of Franklin Pierce Law Centre and Rear Admiral (Retired) of the US Navy entitled 'How the US Can Lose the War on Terror'. The discussant will be Fiona de Londras of the Centre for Criminal Justice and Human Rights.

The event will take place in the Council Room, North Wing, The Quad at 6pm and all are welcome. Further details are available here

Dean Hutson has been an outspoken critic of the treatment of detainees at Guantanamo Bay and of US policies on the ‘war on terror’. In 2004, Hutson and seven other retired officers wrote an open letter to President Bush expressing their concern over the number of allegations of abuse of prisoners in U.S. military custody. In 2005, Dean Hutson, along with Yale Law School dean Harold Koh, testified before the U.S. Senate Judiciary Committee in opposition to the appointment of Alberto Gonzales as attorney general of the United States, because of his alleged role in attempting to provide legal guidance to the U.S. military justifying abusive interrogation practices. Hutson has also testified before the Senate Armed Services Personnel Subcommittee, offering his opinion on the detention of "unlawful combatants". Hutson was one of a number of lawyers and retired navy officers interviewed for the HBO Documentary, ‘The Ghosts of Abu Ghraib’.

Fiona de Londras is a College Lecturer in the Faculty of Law and specialises on the detention of suspected terrorists in the 'War on Terrorism'. Her particular research interest relates to the behaviour of domestic and international human rights law in this context. She has published widely on the legal implications of the 'War on Terrorism' and, particularly, the US' policy in Guantánamo Bay.

Any queries should be directed to ccjhr[at]ucc.ie


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Wednesday, 23 January 2008

What happens the detainees when the War on Terrorism ends?

University of Pittsburgh’s excellent JURIST blog today reports on a draft bill before the Iraqi parliament which would allow for the release of approximately 5,000 current detainees in Iraq and provide those released with an amnesty. Although there are some quite severe difficulties with the Bill – not least the fact that excludes from its provisions all those in US custody and those imprisoned for, inter alia, adultery and homosexuality – and the fact that it is not targeted as a response to terrorism-related detentions, the Bill’s presentation does raise an important question: what will ‘we’ do with those detained on suspicion of terrorist activities when the ‘War on Terrorism’ ends?

To take Guantanamo Bay as an example, the United States has repeatedly asserted its desire to close the detention facility there but cites concerns about the destination and future conduct of detainees, including reluctance by ‘home states’ to have their citizens repatriated, as one of the major obstacles to closure. In addition, any detainees who may have been subjected to unlawful treatment in detention including torture clearly pose a litigation risk to the United States. To this end, some insurance policies may cover people against mistreatment claims (see NYT piece here). In addition, national security and separation of powers arguments may be successfully used to prevent litigation in US courts by those who claim to be the victims of such ill-treatment. For example, the DC Circuit court last week decided Rasul v Myers in which the court , finding that the claimant could not succeed in a damages claim against the government, held:

The present case involves the method of detaining and interrogating alleged enemy combatants during a war--a matter with grave national security implications. Permitting damages suits by detainees may allow our enemies to “obstruct the foreign policy of our government.” Moreover, dealing with foreign relations is primarily delegated to the executive and legislative branches, see...and creating a damages action could produce “multifarious pronouncements by various departments.” Nor does our government's unanimous condemnation of torture answer this concern, since where to draw that line is the subject of acrimonious debate between the executive and legislative branches. Treatment of detainees is inexorably linked to our effort to prevail in the terrorists' war against us, including our ability to work with foreign governments in capturing and detaining known and potential terrorists. Judicial involvement in this delicate area could undermine these military and diplomatic efforts and lead to “embarrassment of our government abroad.”

Notwithstanding these potential protections from liability, per se, the release of prisoners who claim torture or serious ill-treatment might well have a masive reputational impact on the United States. Writing about this issue in a piece entitled “United States Policy Towards Enemy Detainees in the ‘War on Terrorism’” published in the Human Rights Quarterly, the formidable scholar David Forsyth recently evoked the French-strategy following the Algerian war (i.e. of mass killings to prevent torture victims from speaking out) and wrote:



Accordingly, the democratic French, who had greatly contributed to the theory and practice of human rights, committed torture. And because the French had tortured, they could not put their enemies on trial; instead, they summarily executed them. Their efforts to sweep these atrocities under the rug for many years led to the loss of their self-respect, as well as the respect of many others, starting with the Arab-Islamic world. Torture may have helped the French win the battle of Algiers, but their policy of abuse led to many negatives, including increased domestic criticism and loss of reputation in the world; meanwhile their enemies failed to lessen their struggle. The Bush policy toward enemy detainees replicates much of this French experience.

….

US nationalism after 11 September 2001 has been less intolerant than some periods in US history; the Wilson and McCarthy eras quickly come to mind. But perhaps that is due to the lack of open, vigorous debate and dissent about Bush’s security policies. Given this lack of serious domestic debate, the Bush Administration has been able to sustain its policy of abusive interrogation, even if it has had to clean up detention practices in military facilities. International criticism has been much less important than domestic factors, although the role of the ICRC is not without importance.

The situation is not totally new, not only by comparison to France in Algeria. During the Cold War, the United States then too spoke of freedom and human rights and the rule of law but acted in the shadows to overthrow elected governments and back murderous allies, as in Chile and Guatemala. But to paraphrase Satre in the earlier quote, why should Americans go to such trouble to be patriots if their country in reality stands for torture and other serious violations of fundamental human rights? The French have much to say on the subject.



A law such as that proposed in Iraq is unlikely to solve the problems to be faced by the United States at the ‘cessation of hostilities’ when even its (shaky) IHL grounds for detention are gone, but it may well become time to start thinking about strategy. Although the candidates for presidential nominations from both the GOP and the Democratic party have address Guantanamo and the ‘War on Terrorism’ (for a useful summary of GOP hopefuls' approaches see here), none appear to have come up with a sustained strategy to avoid a repetition of what Forsyth might call ‘the French lesson’.

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Monday, 3 December 2007

Guantanamo Bay in the US Supreme Court this week

This Wednesday the US Supreme Court will hear arguments in the consolidated cases of Al-Odah v United States and Boumediene v Bush. The applicants in both cases are claiming that the US Constitution applies to them even though they are non-citizens detained in an area that is, strictly speaking, outside of the territory of the United States.

The action is a result of s. 7 of the Military Commissions Act 2006 which strips federal courts of their statutory right to hear habeas corpus applications from Guantanamo Bay detainees. ‘Jurisdiction stripping’ statutes of this kind are quite common and allowable in United States law (see, for example, Janet Alexander’s excellent piece in the Stanford Journal of Civil Rights and Civil Liberties here), but do not on their own disturb the Constitutional protection for habeas corpus found in Article I(9)(2) of the Constitution (known as the ‘Suspension Clause’). By virtue of this provision Congress may only suspend the writ of habeas corpus in times of invasion or emergency where such suspension is required. It is now well established that express words of suspension ought to be used in order for an act of Congress to suspend the writ and those express words are not present in s. 7. Thus the major question for the Court to decide appears to be whether the Constitutional protection of the writ applies to aliens held outside the state.

The case is potentially the sternest challenge that the US Supreme Court has faced in the ‘War on Terrorism’ and the academic focus is mainly on (a) whether they will find that the constitution does apply [which seems quite likely]; and (b) on what basis they will reach this decision [will they use domestic legal argumentation only or will the justices have recourse to principles of extra-territoriality developed in international human rights law?].

The excellent SCOTUSblog has provided useful summaries of the issues here and the Supreme Court has pledged to make the audio recording of the case available quickly on Wednesday. Once it’s released, the audio ought to be available here.

UPDATE The MP3 of the oral hearing is now available here.

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Wednesday, 28 November 2007

Bellinger on Geneva Conventions and Terrorism

US State Department Legal Advisor John Bellinger has called on the international community to ‘clarify’ the contents and scope of application of the Geneva Conventions (International Herald Tribune). In an address to reporters at the ICRC annual meeting, Bellinger claimed that the Conventions apply to conflicts between states and thus do not offer guidance as to how long one can hold people in conflicts with non-state actors. The view does seem somewhat at odds with the position of the US Supreme Court expressed in the Hamdan decision that Common Article 3 of the Conventions – applying to ‘non-international armed conflicts’ – could apply to conflicts between states and non-state actors (although it’s not necessarily the case that this is correct or that the court was sufficiently rigorous in its application of IHL: see Fionnuala Ni Aolain’s insightful critique in the Minnesota Law Review).

More interesting, however, is Bellinger’s contention that “[t]he United States is firmly committed to the law that applies. We're also committed to working with other countries around the world to develop new legal norms in cases where existing law does not give one the answers. But what we do think is problematic is to simply suggest that the Geneva Conventions provide all of the answers in fighting international terrorism, and that countries simply need to follow the Geneva Conventions and that is the end of the matter”. This appears to suggest that there is no law to govern detention of suspected terrorists, when in fact there clearly is: international human rights law.

Nobody suggests that the application of the Geneva Conventions is the end of the matter. The ICJ (in the Advisory Opinion on Nuclear Weapons) and many commentators have noted that international human rights law continues to apply in parallel with and through the prism of international humanitarian law. The United States, however, predominantly takes the position that IHRL does not apply in times of IHL-application. The root of the problem arguably lies not in deficiencies within the international legal code, but rather in the restricted view of applicable law on the part of the US authorities.

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Wednesday, 10 October 2007

Guantánamo Bay News

Two interesting developments in the US are worthy of note this morning.

First of all the Government has submitted a 74-page Merits Brief to the US Supreme Court in the Boumediene and Al Odah litigation, which concerns whether or not aliens detained in Guantánamo Bay have constitutional rights. According to the Brief there is a “long standing” constitutional rule that such detainees have no constitutional rights. It is unclear whether by this the Brief means that there is a rule that ‘enemy combatants’ have no such rights, or that ‘aliens’ have no such rights, or that people held in Guantánamo Bay have no such rights (or, indeed, all three). On either interpretation, however, the Brief can be rebutted. Firstly the mere status of ‘enemy combatant’ does not necessarily strip one of constitutional rights (Hamdi); secondly aliens who have a nexus to the US do have constitutional rights although they might not enjoy the full panoply thereof (INS v St Cyr); and thirdly Guantánamo Bay could be defined as an ‘unincorporated territory’ of the US resulting in constitutional rights for those detained there (The ‘Insular Cases’wiki with useful links). There are more expansive internationalist arguments to be made on the final point, but the Insular Cases offer a simple argument based on US precedent to immediately refute the ‘no rights’ claim.

The Brief goes on to argue that even if such detainees did have constitutional rights (and the right they are primarily seeking to exercise is the right to habeas corpus) those rights are not being breached. US constitutional jurisprudence clearly establishes that the constitutional right to habeas corpus can be satisfied by an “adequate alternative” and, according to the Brief, the Combatant Status Review Tribunals offer such an alternative.

The CSRTs were established by Congress in the Detainee Treatment Act but are marred by well-publicised criticisms including lack of equality of arms, admissibility of dubiously-acquired evidence, lack of adequate access to counsel etc that have been notably documented by Prof. Mark Denbeaux and a team of his students from Seton Hall Law School (reports collected here). Ultimately the US Supreme Court – if it finds constitutional rights (as seems likely) – will be required to consider the adequacy of the CSRTs.

The Brief, of course, contains argumentation on further points and can be accessed here, but the case promises to put the issue of constitutional habeas corpus front and centre (finally) in the ongoing Guantánamo litigation. A Reply brief is expected within a few weeks.

The second development of note is a decision in the District of Columbia District Court of Judge Gladys Kessler to block the transfer of a Guantánamo Bay detainee to Tunisia because of the fears that he would be subjected to torture there. The Court held that she would stay the transfer until the Supreme Court had clarified the rights of the Guantánamo Bay detainees.

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Friday, 28 September 2007

17th General Report of the Council for the Prevention of Torture (CPT)

The European Committee for the Prevention of Torture, Inhuman and Degrading Treatment and Punishment (COE) last week released its 17th Report on its General Activities in which secret detentions of suspected terrorists are a primary concern. The right to be free from arbitrary detention, which includes a right to challenge the lawfulness of detention, is provided for in Article 5 of the European Convention on Human Rights as well as in all other major international human rights treaties.

The Inter-American Court of Human Rights has held that the right to challenge the lawfulness of one's detention is a non-derogable right because of the risk posed to people held in detention, including the risk of being subjected to torture (Advisory Opinion on Habeas Corpus in Emergency Situations). The European Court of Human Rights has not to date expressly held that Article 5 rights have a similar non-derogable character, but the focus on detention in this report might suggest an attitudinal shift within the COE to that position. The following passage from the Preface of the Report is particularly interesting and echoes the UN Committee on Torture's conclusion last year that incommunicado detention in itself might be considered torture or inhuman and degrading treatment:

It is disturbing, at the beginning of the 21st century, to be obliged to recall basic principles long enshrined in both national and international law and which one had assumed would be inviolate. Deprivation of liberty must be based upon grounds and procedures established by law, be formally recorded, and be open to review by a judicial authority. Further, all persons deprived of their liberty by a public authority should be held in facilities which are officially recognised for this purpose and placed under the responsibility of a clearly identifiable entity. The practice of secret detention constitutes a complete repudiation of these principles.

Secret detention can certainly be considered to amount in itself to a form of ill-reatment, both for the person detained and for members of his or her family. Further, the removal of fundamental safeguards which secret detention entails - the lack of judicial control or of any other form of oversight by an external authority (such as the ICRC) and the absence of guarantees such as access to a lawyer - inevitably heightens the risk of resort to ill-treatment. And in the light of the information now in the public domain, there can be little doubt that the interrogation techniques applied in the CIA-run facilities concerned have led to violations of the prohibition of torture and inhuman or degrading treatment.

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