GUANTANAMO BAY

 Shining a ray of light into legal black hole

ON 7 October 2001 the United States launched a military attack on Afghanistan in response to the attacks on the US on 9 September 2001. As a result of the conflict several hundred 'fighters' were detained by the US military in Afghanistan. On 10 January 2002 the US began the transportation of alleged members of the Taliban and Al Qaida to the US Naval Station at Guantanamo Bay, Cuba. There are no exact figures in the public domain as to how many people are currently detained at Guantanamo Bay; reported figures vary from 384 to 660 detainees from more than 40 different countries.

Human rights violations

There are a number of legal concerns relating to the circumstances in which the detainees are held. There is uncertainty with regard to the legal basis of detention and the exact legal status of individual prisoners. The detainees have been called "enemy combatants", but it is unclear whether this means they are detained as quasi 'prisoners of war', 'war criminals', 'terrorists', under administrative detention, or something else. To date, none of the detainees held at Guantanamo Bay have been formally charged with any crime and it is still uncertain if and when the US authorities intend to do so and on what legal basis. The length of their detention is therefore at the moment indefinite.

There are also concerns over potential violations of international human rights norms and articles of the International Covenant on Civil and Political Rights (ICCPR); such as, Article 7 (prohibition against torture), Article 9 (right to liberty), Article 10 (right to humane treatment), Article 14 (right to a fair trial) and Article 26 (equality before the law). In March 2003, 18 detainees were released and returned to Afghanistan, in addition to three prisoners released in October 2002. The released detainees allege that they were sometimes hooded and handcuffed, and held during their detention in "two-metre by two-metre cages". The ICRC has been given access, but as usual their findings are confidential.

Right to habeas corpus

In the circumstances the protection of Article 9(4) of the ICCPR is crucial; that is, the writ of habeas corpus or amparo. The remedy which permits a detained individual to take proceedings before a court to determine the lawfulness or otherwise of detention, and to order release if detention is not lawful. This is also the legal vehicle by which alleged breaches of international human rights law can be aired and tested. The US courts have so far, however, denied the remedy of habeas corpus to the Guantanamo Bay detainees.

The US Courts

A handful of cases have come before the US District Courts on this issue. The leading case is that of the US Court of Appeal (District of Columbia) in the case of Odah (March 2003). In Odah the relatives of a number of detainees brought claims relating to the lawfulness of detention. In rejecting the claims the Court upheld a 1950 US Supreme Court ruling that the US courts do not have jurisdiction to issue writs of habeas corpus for alien nationals detained outside the "sovereign territory" of the US. The status of Guantanamo Bay in international law is unusual - although by no means unique - in that it was leased from Cuba by the US in 1903. The Lease provides that Cuba keeps "sovereignty" over the territory, but that the US has "complete jurisdiction and control". The US Courts have interpreted this to mean that they have no jurisdiction over aliens held at Guantanamo Bay because whilst the US authorities have "jurisdiction and control" under international law the territory belongs to Cuba. A technical point, maybe, but, unless there is a successful appeal to the US Supreme Court, under US Constitutional law the detainees do not have access to any US court or tribunal to review the lawfulness of their detention.

International human rights law

The approach of the US courts, to providing access to habeas corpus to foreign nationals under their control on foreign territory, differs from well established principles of international human rights law; in particular, the practice of the UN Human Rights Committee (HRC), the Inter-American Commission on Human Rights (IACHR), the European Commission on Human Rights (the European Commission), and the European Court of Human Rights (ECHR).

On the issue of jurisdiction, Article 2(1) of ICCPR provides that each State Party "undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized" in the Covenant.  (see box)

With regard to the writ of habeas corpus itself, even if the US Courts found jurisdiction it is likely to be argued that the President's Military Order of 13 November 2001 (Military Order) has suspended the prisoners' right to seek habeas corpus. Article 7(b)(2) of the Military Order provides that "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…". However, the US Constitution states that: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." And it is worth noting that the writ of habeas corpus has been suspended only twice in US history; first, by Lincoln during the American Civil War and, second, in Hawaii during the Second World War. Thus, there may be doubts whether the gravity of the existing threat to US security permits a suspension of habeas corpus under US Constitutional law.

In the context of international human rights law, the HRC have confirmed that the right to habeas corpus "applies to all persons deprived of their liberty by arrest or detention" (General Comment 8/16, 1982) and that this includes proceedings before a military court (Vuolanne v Finland, HRC Doc A/44/40). Individuals are entitled to this right "without delay" regardless of the reasons for their detention. Moreover, the HRC has stated that: "The Committee is satisfied that States parties generally understand that the right to habeas corpus and amparo should not be limited in situations of emergency." (General Comment 29/1950, 2001). In particular, the right to habeas corpus cannot be derogated from in states of emergency in respect of those rights that are non-derogable (e.g. the prohibition of torture). This is a view also shared by the IACHR. Most recently in the case of Ocalan v Turkey (March 2003), the ECHR found a violation of the European Convention on Human Rights because of the lack of a remedy for the applicant to have the lawfulness of his detention decided and the failure to bring the applicant before a judge within at least seven days of arrest. By way of contrast, the Guantanamo Bay detainees have been held for up to 450 days without access to a court to determine the lawfulness of their detention.

Thus, if the US Courts were to apply international human rights law, rather than exclusively relying on US Constitutional law, the detainees at Guantanamo Bay should have the right of access to habeas corpus, regardless of the existence of a declared state of emergency in the US.

The legal 'black hole'

But, if the US Courts are unable to act, what other court or tribunal can hear the detainees' allegations of human rights violations? The answer is, apparently, none.

First, the US has not ratified the First Optional Protocol to the ICCPR, thus, the detainees have no basis on which to submit a complaint to the HRC. Secondly, on 13 March 2002, the IACHR ordered the US to "take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal. The US, however, rejected the IAHCR's decision, arguing that the IACHR does not have jurisdiction to make such an order.

Thirdly, the relatives of some detainees have tried to bring cases in other jurisdictions to put pressure on foreign governments to use diplomatic channels to invoke their rights. For example, in the English Court of Appeal case of Abassi (Nov 2002), Feroz ali Abassi, a British national caught by US forces in Afghanistan and held at Guantanamo Bay, sought judicial review to compel the UK Secretary of State to make representations on his behalf to the US government. The Court of Appeal rejected Mr Abassi's case, although it was not unsympathetic to his cause, saying: "We have made clear our deep concern that, in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal."

None of these alternatives works. Thus, as one commentator has put it, the detainees at Guantanamo Bay are in a "legal black hole".

The CHR context

In response to the decision of the US Court of Appeal in Odah, the Special Rapporteur on the independence of judges and lawyers, Dato' Param Cumaraswamy, said: "By such conduct, the Government of the United States, in this case, will be seen as systematically evading application of domestic and international law so as to deny these suspects their legal rights. Detention without trial offends the first principle of the rule of law" and he added, "can set a dangerous precedent". He further added: "The war on terrorism cannot possibly be won by denial of legal rights, including fundamental principles of due process of those merely suspected of terrorism". He called on the US Government to comply with the General Assembly Resolution on Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (A/RES/57/219, 16 December 2002). A resolution that affirmed that states must ensure that any measure taken to combat terrorism complies with their obligations under international human rights law.

In its last report to the HRC (CCPR/C/81/Add.4, August 1994), the US stated that "the fundamental rights and freedoms protected by the Covenant are already guaranteed as a matter of U.S. law, either by virtue of constitutional protections or enacted statutes, and can be effectively asserted and enforced by individuals in the judicial system". In the case of the detainees at Guantanamo Bay, however, this is clearly not the case.

In the High Level Segment of the 59th session, Jeanne J. Kirkpatrick on behalf of the US, quoting from the preamble to the Universal Declaration of Human Rights, said that "human rights should be protected by the rule of law" and that "human rights can be realised only through good faith compliance and enforcement by governments".

A "good faith" application of the provisions of Article 9 does require the provision of security to US citizens, but equally it requires the State to respect and ensure the human rights and fundamental freedoms of detainees as provided in international law, which includes the remedy of habeas corpus. The international law dimension was recognised by the US District Court of Columbia and the US government in the case of Rasul et al (2002) when the Court expressed its "serious concern" that the court's decision would leave the prisoners without any rights, and recorded the government's recognition that "these aliens fall within the protections of certain provisions of international law and that diplomatic channels remain an ongoing and viable means to address the claims raised by these aliens". The US government therefore appears to be aware of its obligations, but reluctant to act upon them.

Filling the 'black hole'?

In the case of the detainees at Guantanamo Bay there is a gap between the application of US Constitutional law by US Courts and the applicable international human rights law in relation to access to habeas corpus for alien detainees under the control of the US authorities on foreign territory.

This gap is unlikely to be bridged until either the US fully implements the ICCPR, by making it 'self-executing' and therefore making its provisions directly enforceable in its domestic law, or ratifies the complaints mechanism contained in the First Optional Protocol.

The US is by no means alone in having failed to take these two measures, but it is not unreasonable to suggest that such steps are an integral part of good faith compliance and the protection of human rights in accordance with the rule of law.

Moreover, states that wish to hold themselves out as leaders of civil and political rights, but wish to avoid accusations of "double standards", must be prepared to consistently, and not selectively, apply international human rights obligations.

In the meantime, several hundred prisoners - no doubt some guilty, but some innocent - remain detained at Guantanamo Bay, and also in Afghanistan, where they have been for over one year without any immediate hope of release or access to legal review.