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Casting light on the legal black hole: International law and detentions abroad in the “war on terror”

Published online by Cambridge University Press:  27 April 2010

Silvia Borelli
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Abstract

Thousands of individuals have been detained abroad in the context of the “war on terror”, both during the armed conflicts in Afghanistan and in Iraq and as a result of transnational law-enforcement operations. This paper argues that, notwithstanding contrary positions expounded by some States, the protections of international humanitarian law and/or international human rights law remain applicable to these individuals, wherever detained, and examines recent decisions of domestic courts and international bodies which appear to reveal a reassertion of international standards.

Type
Detention
Information
International Review of the Red Cross , Volume 87 , Issue 857: Detention , March 2005 , pp. 39 - 68
Copyright
Copyright © International Committee of the Red Cross 2005

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References

1 E.g. the strike by an unmanned aircraft in Yemen which killed six suspected terrorists: Risen, J. and Miller, J., “U.S. is reported to kill al Qaeda leader in Yemen”, New York Times, 5 November 2002Google Scholar. It seems that Yemen had given its prior consent to this action and was cooperating with it, although reports were nuanced: see e.g. Pincus, W., “Missile strike carried out with Yemeni cooperation”, Washington Post, 6 November 2002Google Scholar.

2 In this respect, the definition is by no means limited to the detention of convicted criminals or of suspects pending trial, but is wide enough to cover any form of deprivation of liberty, including the detention of prisoners of war during an armed conflict, internment during a belligerent occupation, and administrative detention (for instance of illegal immigrants pending expulsion), as well as other forms of de facto detention which may not be easily fitted into any of these traditional categories. It is also sufficiently wide to cover the situation of arrest and detention outside national territory by agents of the State, whether or not with the consent and cooperation of the territorial State.

3 In particular the protections for persons deprived of their liberty contained in the Third Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, UNTS, Vol. 75, p. 135 (hereinafter GC III); the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, Vol. 75, p. 287 (hereinafter GC IV); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS, Vol. 3, entered into force 7 December 1978 (hereinafter P I).

4 The focus is on general instruments of international human rights law, or on regional instruments which are particularly pertinent because of their applicability to one of the main protagonists: International Covenant on Civil and Political Rights, New York, 16 December 1966, UNTS, Vol. 999, p. 171 (hereinafter ICCPR); European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, ETS No. 5 (hereinafter ECHR); American Convention of Human Rights, San José, 22 November 1969, OAS Treaty Series, No. 36 (hereinafter ACHR); United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment, New York, 10 December 1984, UNTS, Vol. 1465, 85 (hereinafter CAT).

5 International Committee of the Red Cross, “ICRC reactions to the Schlesinger Panel Report”, 8 September 2004Google Scholar, para. I (A), available at <http://www.icrc.org> (last visited 10 February 2005).

6 See the English Court of Appeal in R (on the application of Ferroz Abbasi and another) v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ. 1598, which expressed its concern (at para. 64) as to the manner in which the applicant was detained at Guant´namo Bay, noting that “in apparent contravention of fundamental principles recognised by [US and English] jurisdictions and by international law, Mr. Abbasi is at present arbitrarily detained in a ‘legal black-hole’”. See also Steyn, Johan, “Guantánamo Bay: The legal black hole” (the 27th FA Mann Lecture, 25 November 2003), reprinted in International and Comparative Law Quarterly, Vol. 53, 2004, p. 1CrossRefGoogle Scholar.

7 For a more detailed examination of substantive guarantees, see Borelli, S., “The treatment of terrorist suspects captured abroad: Human rights and humanitarian law” in Bianchi, A. (ed.), Enforcing International Law Norms against International Terrorism, Hart Publishing, Oxford, 2004, p. 39Google Scholar.

8 “Final report of the independent panel to review DoD detention operations”, 24 August 2004, available at <http://news.findlaw.com/wp/docs/dod/abughraibrpt.pdf>, p. 11 (last visited 10 February 2005).

9 See Amnesty International, Report 2004, “United States of America”, available at <www.amnesty.org>; see also Human Rights First, “Ending secret detentions”, June 2004, pp. 3–4Google Scholar available at <www.humanrightsfirst.org/us_law/PDF/EndingSecretDetentions_web.pdf>, (last visited 10 February 2005), listing a large number of disclosed and suspected facilities both in Afghanistan and elsewhere. A recent report from an independent human rights organization stated that, in addition to the notorious situation of detentions at Guantánamo Bay, “the United States is also believed to be holding detainees at some 39 other overseas prisons, in Afghanistan, Iraq, and elsewhere”: see Human Rights Watch, “The United States' ‘disappeared’. The CIA's long-term ‘ghost detainees’”, Briefing Paper, October 2004, p. 4Google Scholar.

10 See “Press briefing by White House Counsel Judge Alberto Gonzales …”, Office of the Press Secretary of the White House, 22 June 2004, available at <http://www.whitehouse.gov/news/releases/2004/06/20040622-14.html> (last visited 10 February 2005). Since 11 January 2002, when the first group of prisoners was transferred, more than 750 people have been detained in the US naval base at Guantánamo Bay.

11 See Graham, B., “Offensives create surge of detainees”, Washington Post, 27 November 2004Google Scholar.

12 See “Remarks by the President from the USS Abraham Lincoln…” 1 May 2003, available at <www.whitehouse.gov> (last visited 10 February 2005).

13 See Human Rights Watch, “Iraq: Background on US detention facilities in Iraq”, 7 May 2004, available at <http://hrw.org/english/docs/2004/05/07/iraq8560.htm>. The report lists ten major facilities and “a number of other detention facilities located in US military compounds, used as temporary facilities for initial or secondary interrogation”. See also Human Rights First, “Ending secret detentions”, op. cit. (note 9).

14 During the recent examination of the UK report before the Committee against Torture, the UK delegation described detention operations carried out by the UK in Iraq and in Afghanistan as follows: “Initially in Iraq individuals detained by British Forces were housed in the US detention facility at camp Bucca. (…) Since 15 December 2003, British held internees have been housed in the UK-run Divisional Temporary Facility at Shaibah in Southern Iraq. This is the only detention facility in Iraq and houses all British held internees”; “Although UK internees at one time numbered in the hundreds we have regularly reviewed their cases and released individuals that no longer pose a threat to us. As at 14 November 2004, there were only 10 internees held at Shaibah”; “In Afghanistan we have one small temporary holding facility at Camp Souter in Kabul which is currently empty. This facility has been used on less than fifteen occasions since its construction.” Opening address, 17 November 2004, available at <http://www.ohchr.org/english/bodies/cat/docs/UKopening.pdf>, paras. 93; 96–97 (last visited 10 February 2005).

15 At the end of January 2003, in his Address on the State of the Union, the US President declared that “more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Put it this way, they're no longer a problem to the United States and our friends and allies.” See Bush, G.W., “State of the Union Address”, 28 January 2003Google Scholar, available at <http://www.whitehouse.gov/news/releases/2003/01/20030128-19.html> (last visited 10 February 2005).

16 According to news reports, shortly after the attacks of 11 September the President of the United States signed a secret order authorizing the CIA to set up a network of secret detention and interrogation centres outside the United States where high value prisoners could be subjected to interrogation tactics which would be prohibited under US law. The US government negotiated “status of forces” agreements with several foreign governments allowing the US to set up CIA-run interrogation facilities and granting immunity to US personnel and private contractors; see Barry, J., Hirsh, M. and Isikoff, M., “The roots of torture”, Newsweek, 24 May 2004Google Scholar; Priest, D. and Stephens, J., “Secret world of US interrogation: Long history of tactics in overseas prisons is coming to light”, Washington Post, 11 May 2004Google Scholar. See also Priest, D. and Higham, S. “At Guantänamo, a prison within a prison”, Washington Post, 17 December 2004Google Scholar: “The CIA is believed to be holding about three dozen al Qaeda leaders in undisclosed locations (…) CIA detention facilities have been located on an off-limits corner of the Bagram airbase in Afghanistan, on ships at sea and on Britain's Diego Garcia island in the Indian Ocean”, in addition to a separate section at Guantánamo Bay.

17 See e.g. Priest, D., “Top justice aide approved sending suspect to Syria”, Washington Post, 19 November 2003Google Scholar, reporting the case of a Syrian-born Canadian citizen who was detained whilst making a connection at a US airport, and transferred via Jordan to Syria, where he alleges he was tortured.

18 See Priest, D. and Gellman, B., “US decries abuse but defends interrogations: Stress and duress tactics used on terrorism suspects held in secret overseas facilities”, Washington Post, 26 December 2002Google Scholar; see also Amnesty International, op. cit. (note 9).

19 These countries include e.g. Egypt, Syria, Jordan, Saudi Arabia and Morocco. See Chandrasekaran, R. and Finn, P., “US behind secret transfer of terror suspects”, Washington Post, 11 March 2002Google Scholar.

20 See e.g. Whitlock, C., “A secret deportation of terror suspects”, Washington Post, 25 July 2004Google Scholar, describing the rendition of two individuals suspected of links to al Qaeda who were arrested in Sweden, and then irregularly transferred into the custody of CIA agents, and thence to Egypt, where it is suspected that they were tortured. See also van Natta, D. and Mekhennet, S., “German's claim of kidnapping brings investigation of US link”, New York Times, 9 January 2005Google Scholar, describing the alleged arrest and detention of a German citizen in Macedonia who was then handed over to US agents and taken to Afghanistan for interrogation, where he alleges that he was tortured.

21 See Human Rights Watch, loc. cit. (note 9). See also Priest and Higham, op. cit. (note 16).

22 The principal motivation for transferring prisoners to Guantánamo Bay was apparently that it was “the legal equivalent of outer space”; see Barry, Hirsh and Isikoff, op. cit. (note 16) (quoting an administration official). An internal memorandum dated 28 December 2001 from the Office of the Legal Counsel of the Justice Department expressed the view that the US domestic courts had no jurisdiction to review the legality of detention of prisoners held at Guantánamo Bay, or to hear complaints relating to their ill-treatment (ibid.). There have also been news reports to the effect that other unreleased memoranda exist which advised that if “government officials (…) are contemplating procedures that may put them in violation of American statutes that prohibit torture, degrading treatment or the Geneva Conventions, they will not be responsible if it can be argued that the detainees are formally in the custody of another country.” The apparent basis for this advice was that “it would be the responsibility of the other country”: see Risen, J., Johnston, D. and Lewis, N.A., “Harsh CIA methods cited in top al Qaeda interrogations”, New York Times, 13 May 2004Google Scholar.

23 The question of the legal character of the “war on terror” has been the object of much debate in the academic community: see e.g. Fitzpatrick, J., “Jurisdiction of military commissions and the ambiguous war on terrorism”, American Journal of International Law, Vol. 96, 2002, p. 345CrossRefGoogle Scholar, in particular pp. 346–350; Greenwood, C. D., “International law and the ‘war against terrorism’”, International Affairs, Vol. 78, 2002, p. 301CrossRefGoogle Scholar; Abi-Saab, G., “Introduction: The proper role of international law in combating terrorism” in Bianchi, A. (ed.), Enforcing International Law Norms Against International Terrorism, Hart Publishing, Oxford, 2004, p. xiiiGoogle Scholar.

24 The concept of “war” has been abandoned for some time in the context of IHL, being replaced by the concept of “armed conflict”, whether internal or international. See Article 2 common to the Geneva Conventions, and Greenwood, C.D., “The concept of war in modern international law”, International and Comparative Law Quarterly, Vol. 36, 1987, p. 283CrossRefGoogle Scholar.

25 The renewed efforts against international terrorism which started after 9/11 cannot be characterized as a whole as an armed conflict within the meaning that contemporary international law gives to that concept: the transnational nature of the operations carried out in the context of the global “war on terror”, coupled with the fact that an international coalition is currently involved in those operations, directly excludes the possibility of qualifying that “war” as an internal armed conflict. Nor can it be characterized as an international armed conflict, since it is generally accepted that international law does not recognize the possibility of an international armed conflict arising between a State (or group of States) and a private non-State organization, see e.g. Greenwood, op. cit. (note 23), and G. Abi-Saab, op. cit. (note 23), p. xvi: “‘War’ or ‘armed conflict’, in the sense of international law, necessarily involves internationally recognisable entities which are capable of being territorially defined…”. See also Cassese, A. “Terrorism is also disrupting some crucial legal categories of international law“, European Journal of International Law, Vol. 12, 2001, p. 993CrossRefGoogle Scholar.

26 In relation to the conflict in Afghanistan, see Borelli, op. cit. (note 7), pp. 40–41. Note, however, that not all commentators characterize the conflict in Afghanistan as international; some have referred to it as an “internationalized” armed conflict; see Roberts, A., “Counter-terrorism, armed force and the laws of war”, Survival, Vol. 44, 2002, p. 7CrossRefGoogle Scholar. On that concept see Gasser, H-P., “Internationalized non-international armed conflicts: Case studies of Afghanistan, Kampuchea and Lebanon”, American University Law Review, Vol. 33, No. 1, Fall 1983, pp. 145–61Google Scholar, and Stewart, J.G., “Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict”, International Review of the Red Cross, Vol. 85, 2003, p. 313CrossRefGoogle Scholar.

27 Compare Greenwood, CD., “The law of war (international humanitarian law), in Evans, M.D. (ed.) International Law, Oxford University Press, Oxford, 2003, p. 793Google Scholar, who speaks of “an underground terrorist movement whose recourse to violence is criminal”.

28 In this regard it may be noted that despite continued references to the “war on terror”, there are now no ongoing purely international armed conflicts: that in Afghanistan has ended (although no formal declaration to this effect was ever made); similarly major combat operations in Iraq were declared to have ended on 1 May 2003, and the occupation ended when authority was formally transferred to the Iraqi Interim Government on 28 June 2004. See op. cit. (note 12) and Council Resolution 1546 (2004). Note also that prisoners of war must be released “without delay” upon the close of active hostilities (GC III, Art. 118(1)) unless they have been indicted for criminal offences (Art. 119(5)). Similarly, protected persons under GC IV who have been interned during the conflict should be released as soon as possible after the close of hostilities (Art. 133); however, those who continue to be detained after the end of the armed conflict retain the protections of GC IV until their release (GC IV, Art. 6(4)).

29 Although the protections of individuals under IHL are inapplicable, certain rights given to States (e.g. to detain without charge or intern until the end of hostilities) also are not applicable.

30 Subject to the possibility of derogation in accordance with the terms of the instrument in question. See below, “Applicability of international human rights law during armed conflict or states of emergency”.

31 For the status of ratification of the Geneva Conventions, see <www.icrc.org>.

32 Although it takes the view that the Conventions ceased to apply to Iraq at the moment when authority in Iraq was transferred to the Interim Government on 28 June 2004; in particular, see the written answer provided by Mr. Hoon, 1 July 2004, 423 HC Deb. (2003–2004), 419w.

33 George W. Bush, Memorandum on ‘Humane treatment of Taliban and al-Qaeda detainees’, 7 February 2002, para. 2(b); available at <http://pegc.no-ip.info/archive/White_House/bush_memo_20020207_ed.pdf>.

34 ibid., para. 2 (d).

35 Ibid, para. 2 (a).

36 Ibid, para. 2 (d). See also A. Gonzales, “Decision reapplication of the Geneva Convention on prisoners of war to the conflict with al Qaeda and the Taliban, Memorandum for the President”, 25 January 2002, available at <http://pegc.no-ip.info/archive/White_House/gonzales_memo_20020125.pdf>.

37 In current US military manuals two terms with apparently identical meaning, “unlawful combatants” and “illegal combatants”, are used to refer to those who are viewed as not being members of the armed forces of a party to the conflict and not having the right to engage in hostilities against an opposing party. US Army, Operational Law Handbook, JA 422, pp. 18–19; and US Navy, Commander's Handbook of the Law of Naval Operations, NWP 1–14M, paragraph 12.7.1.

38 Secretary of Defense, News Briefing, 11 January 2002, available at <http://www.defenselink.mil/news/Jan2002/briefings.html>. (last visited 10 February 2005).

39 See e.g. Press briefing by Gonzales, Haynes, Dell'Orto and Alexander, 22 June 2004, available at <http://www.whitehouse.gov/news/releases/2004/06/20040622-14.html> (last visited 10 February 2005). The position adopted was that “it was automatic that Geneva would apply” to the conflict, since it was a “traditional war”, “a conflict between two states that are parties to the Geneva Conventions” (ibid.). In a statement made in April 2003, the US government gave assurances that it intended to comply with Article 5 of GC III by treating all belligerents captured in Iraq as prisoners of war unless and until a competent tribunal determined that they were not entitled to POW status: see e.g. “Briefing on Geneva Convention, EPW and War Crimes”, 7 April 2003, available at <www.defenselink.mil/transcripts/2003/t04072003_t407genv.html>.

40 See J. Goldsmith, Assistant Attorney General, “(Draft) memorandum to Alberto R. Gonzales, Counsel to the President, re: Possibility of relocating certain ‘protected persons’ from occupied Iraq”, 19 March 2004, available at <http://pegc.no-ip.info/archive/DOJ/20040319_goldsmith_memo.pdf>. (last visited 10 February 2005). An earlier memorandum entitled “The President's power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations” (22 March 2002) has not been released and its full contents are not known.

41 See Senate Judiciary Committee confirmation hearing on the nomination of Alberto R. Gonzales to be Attorney-General, 6 January 2005, transcript available at <www.nytimes.com/2005/01/06/politics/06TEXT-GONZALES.html> (last visited 10 February 2005). For earlier reports of application of the policy, see Jehl, D., “Prisoners: US action bars right of some captured in Iraq”, New York Times, 26 October 2004Google Scholar; Priest, D., “Memo lets CIA take detainees out of Iraq”, Washington Post, 23 October 2004Google Scholar, reporting that “as many as a dozen detainees [had been transferred] out of Iraq in the last six months”.

42 Uhler, O. and Coursier, H. (eds.), Geneva Convention relative to the Protection of Civilian Persons in Time of War: Commentary, ICRC, Geneva, 1950, Commentary to Art. 4, p. 51Google Scholar.

43 Note however the evolution of the conditions for qualification as a combatant contained in P I, Art. 44 (3).

44 According to the US authorities, the justification for the decision to deny the status of prisoners of war to those individuals was that “The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the al Qaeda”; Fleischer, A., “Special White House announcement re: Application of Geneva Conventions in Afghanistan”, 7 February 2002Google Scholar. See also “White House Fact Sheet: Status of detainees at Guantánamo”, 7 February 2002, both available at <www.whitehouse.gov> (last visited 10 February 2005). For criticism, see Aldrich, G.H., “The Taliban, al Qaeda, and the determination of illegal combatants”, American Journal of International Law, Vol. 96, 2002, p. 894CrossRefGoogle Scholar; or see R. Wedgwood, “Al Qaeda, terrorism, and military commissions”, ibid., p. 335, arguing that “these ‘material characteristics’ [listed in Art. 4Ab] are prerequisite to even qualifying as ‘armed forces’ and ‘regular armed forces’”.

45 As noted in this respect by one commentator, “[p] roviding sanctuary to Al Qaeda and sympathizing with it are wrongs, but they are not the same as failing to conduct their own military operations in accordance with the laws of war.” Aldrich, op. cit. (note 44), p. 895. See also Goldman, R.K. and Tittemore, B.D., “Unprivileged combatants and the hostilities in Afghanistan: Their status and rights under international humanitarian and human rights law”, ASIL Task Force on Terrorism Paper, December 2002Google Scholar; available at <www.asil.org> (last visited 10 February 2005), pp. 8–14; or see Wedgwood, op. cit. (note 44), p. 335.

46 Note that the Combatant Status Review Tribunals established by the US Department of Defense in response to the decision of the Supreme Court in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004) in order to decide whether the detainees qualify as “enemy combatants”, and consisting of three “neutral officers”; see “Order Establishing Combatant Status Review Tribunals”, 7 July 2004, available at <http://www.defenselink.mil/news/Jul2004/d20040707review.pdf> (last visited 10 February 2005), are not sufficient for these purposes, as recognized in Hamdan v. Rumsfeld, 8 November 2004 (Memorandum Opinion) (D.Ct., D.C.) (available at <www.findlaw.com>), pp.17–19.

47 To this effect, see the decision in Hamdan v. Rumsfeld, op. cit. (note 46).

48 Art. 4, defining the scope of application of GC IV, states that it protects “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”.

49 See, in general, Baxter, R., “So-called ‘unprivileged belligerency’: Spies, guerrillas and saboteurs”, British Yearbook of International Law, Vol. 28, 1951, p. 323Google Scholar; see also Dörmann, K., “The legal situation of ‘unlawful/unprivileged combatants‘”, International Review of the Red Cross, Vol. 85, 2003, p. 45CrossRefGoogle Scholar.

50 See e.g. Goldman and Tittemore, op cit. (note 45), pp. 4–5.

51 GC IV, Art. 49; note that violation of this prohibition is a “grave breach” under Art. 147 of GC IV. On the prohibition and the narrow exceptions to it, see Gasser, H.-P., “Protection of the civilian population”, in Fleck, D. (ed.), The Handbook of Humanitarian Law in Armed Conflict, Oxford University Press, Oxford, 1999, p. 209, at 252–254Google Scholar.

52 Art. 4 also expressly excludes from the protection of the Convention those persons who, although in principle covered by the definition in the first paragraph, are entitled to protection under one of the other three Geneva Conventions (para. 4). In addition, nationals of a State which is not bound by the Convention are not protected by it (para. 2).

53 On this point see Dörmann, op. cit. (note 49), p. 49. The reasoning behind the exclusion can clearly be traced back to the assumption that those persons would be protected more efficiently by their national State through diplomatic protection. Although in the current political context such an assumption may not be particularly sound, the United Kingdom at least has been partially successful in securing the release of some ot its citizens who were detained at Guantánamo Bay, while other governments have obtained the release of their nationals on condition that they prosecute them upon their return, or have obtained guarantees that the death penalty will not be sought for their citizens if put on trial.

54 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1986, p. 114, para. 218.

55 P I, Art. 75, applies to any person finding themselves in the power of a party to the conflict, insofar as they do not benefit from more favourable treatment under the Conventions or under the Protocol itself. Although the US is not a party to Protocol I, it has declared that it will consider itself bound by those rules contained in it which reflect customary international law, and has long recognized the customary nature of its Art. 75. See Matheson, M. J., “The United States position on the relation of customary international law to the 1977 Protocols Additional to the 1949 Geneva Conventions”, American University Journal of International Law and Policy, Vol. 2, 1987, pp. 419 ff.Google Scholar, in particular pp. 420 and 427; more recently, see Taft, W.H. IV (Legal Adviser to the US Department of State), “The law of armed conflict after 9/11: Some salient features”, Yale Journal of International Law, Vol. 28, 2003, pp. 321–322Google Scholar.

56 See above, text accompanying note 35.

57 See op. cit. (note 77).

58 See e.g. the position adopted by the US before the Inter-American Commission on Human Rights in Coard et al. v. United States, Case No. 10.951, Report No. 109/99, Annual Report of the IACHR 1999, para. 38.

59 See “Additional response of the United States to request for precautionary measures on behalf of the detainees in Guantánamo Bay”, 15 July 2002, in relation to applicability during armed conflict, and see US Department of Defense, “Working group report on detainees interrogations in the global war on terrorism: Assessment of legal, historical, policy, and operational considerations”, 6 March 2003, in relation to both points.

60 See e.g. the written answers provided by Mr. Straw on 17 May 2004, 421 HC Deb. (2003–2004), col. 674w-675w, and 19 May 2004, 421 HC Deb. (2003–2004), col. 1084w.

61 Including the United States (see note 77 below), and notably Israel (see note 80 below).

62 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996(1), p. 240, para. 25.

63 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004 (hereinafter “The Wall”), para. 106.

64 Coard, op. cit. (note 58), para. 35.

65 ibid., para. 39 (footnotes omitted). The principle of the continued applicability of human rights obligations in times of armed conflict had previously been recognized by the monitoring organs of the American Convention. See e.g. the Commission's decision in Abella v. Argentina, Case No. 11.137, Report No. 5/97, Annual Report of the IACHR 1997, paras. 158–161; IACHR, Third Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.102 doc. 9 rev. 1, 26 February 1999.

66 E.g. ECHR, Art. 15(1), and ACHR, Art. 27(1). Although the corresponding provision (Art. 4) of the ICCPR does not expressly mention “war” or “armed conflict”, it is undisputed that the reference therein to “state of emergency” includes situations of armed conflict. See Human Rights Committee, General Comment No. 29, States of Emergency (Article 4), UN Doc. CCPRC/21/Rev. 1/Add.11 (2001), para. 3; see also General Comment No. 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev. 1/Add.13 (2004), para. 11.

67 The vast majority of these rights are effectively paralleled by the minimum standards of IHL. See e.g. Boreili, op. cit. (note 7).

68 In all human rights treaties, derogation is achieved through the lodging of a declaration or communication to that effect with the competent body, usually the depositary (see e.g. ECHR, Art. 15(3); ICCPR, Art. 4(3); ACHR, Art. 27(3)). Whilst some States involved in the “war on terror” have made the appropriate declarations, e.g. the derogations made by the UK in relation to Art. 5(1) of the ECHR and Art. 9(4) of the ICCPR (available at <www.conventions.coe.int> and <www.ohchr.org>, respectively) on 18 December 2001 with regard to detention of non-national terrorist suspects under the Anti-Terrorism, Crime and Security Act 2001), the US has made no such declaration in relation to any of the international human rights instruments by which it is bound.

69 Nuclear Weapons, op. cit. (note 62), p. 240, para. 25. See also The Wall, op. cit. (note 63), para. 106; Coard, op. cit. (note 58), para. 39; and Human Rights Committee, General Comment No. 29, op. cit. (note 66), para. 3.

70 For instance, the right to an independent and impartial tribunal and the presumption of innocence. See Human Rights Committee, General Comment No. 29, op. cit. (note 66), para. 16; also Habeas Corpus in Emergency Situations (Articles 27(2), 25(1) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87, Inter-Am.Ct.H.R., Series A, No. 8 (1987); Judicial Guarantees in States of Emergency (Articles 27(2), 25 and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87, Inter-Am.Ct.H.R., Series A, No. 9 (1987).

71 See e.g., in relation to POWs, GC III, Arts. 99–107. In relation to persons who have taken part in hostilities, but are not entitled to POW status, see P I, Arts. 45(3) and 75.

72 E.g. ACHR, Art. 1(1), and ECHR, Art. 1. An exception to this pattern is Art. 2(1) of the ICCPR, whereby each State undertakes to ensure the rights contained in the Covenant to persons “within its territory and subject to its jurisdiction”, which appears to impose a cumulative test. Such an interpretation has been firmly rejected by both the Human Rights Committee and the ICJ. See Human Rights Committee, General Comment No. 31, op. cit. (note 66), para. 10; The Wall, op. cit. (note 63), paras. 108–113, in particular para. 109.

73 See, in general, de Sena, P., La nozione di giurisdizione statale nei trattati sui diritti dell'uomo, Giappichelli, Turin, 2002Google Scholar.

74 European Commission of Human Rights, Cyprus v. Turkey, Decision on Admissibility, 26 May 1975, reproduced in European Human Rights Reports, Vol. 4, 1982, p. 586, para. 8Google Scholar.

75 Coard, op. cit. (note 58), para. 37.

76 In relation to the ECHR, see e.g. the judgments of the Grand Chamber in Loizidou v. Turkey, Merits, ECHR Reports 1996-VI, para. 52, Cyprus v. Turkey, Merits, ECHR Reports 2001-IV, para. 77, Banković v. Belgium and 16 Other Contracting States, Decision on Admissibility, ECHR Reports 2001-XII, para. 59, and Ilaşcu v. Moldova and Russia, Judgment of 8 July 2004, para. 314. See most recently the decision of the Court in Issa v. Turkey, Merits, Judgment of 16 November 2004.

77 In relation to the ICCPR, see e.g. the Comment of the Committee on the Report of the United States, where the Committee stated that “… the view expressed by the government that the Covenant lacks extraterritorial reach under all circumstances (…) is contrary to the consistent interpretation of the Committee on this subject, that, in special circumstances, persons may fall under the subject matter jurisdiction of a State party even when outside that state territory”; UN Doc. CCPR/C/79/Add 50 (1995), para. 19. See also General Comment No. 31, op. cit. (note 66), and the decisions in the cases relating to the responsibility of Uruguay under the Covenant for violations committed by its agents on foreign territory, discussed below (text accompanying note 98).

78 The definition of occupation contained in Article 42 of the Hague Regulations respecting the Laws and Customs of War on Land (annex to Convention (IV) Respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Martens Nouveau, Vol. 3, Series 3, p. 461, speaks in terms of whether the territory is “actually placed under the authority” of the occupying force, and “occupation” is expressly limited to those areas “where such authority has been established and can be exercised”.

79 The Wall, op. cit. (note 63), para. 111, in relation to the ICCPR. See also ibid., para. 112, in relation to the International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, UNTS, Vol. 993, 3), and para. 113 in relation to the Convention on the Rights of the Child, New York, 20 November 1989, UNTS, Vol. 1577, 44.

80 See e.g. the Committee's Observations on Israel's initial report, in which the Committee stated its deep concern about the fact that “Israel continues to deny its responsibility to fully apply the Covenant in the occupied territories”, UN Doc. A/53/40 (1998), para. 306. The Committee reiterated its position when commenting on the latest Israeli report as follows: “… in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party's authorities or agents in those territories that affects the enjoyment of rights enshrined in the Covenant and falls within the ambit of State responsibility of Israel under the principles of public international law”; UN Doc. CCPR/CO/78/ISR (2003), para. 11. Note also the comments made in 1991 when considering Iraq's third report, in which the Committee expressed its “particular concern” for the fact that the report did not address events in Kuwait after 2 August 1990, “given Iraq's clear responsibility under international law for the observance of human rights during its occupation of that country”; UN Doc. A/46/40 (1991), para. 652.

81 Loizidou Merits, op. cit. (note 76), para. 52 (citing Loizidou v. Turkey, Preliminary Objections, ECHR Series A, No. 310 (1995), para. 62).

82 ibid., para. 56 (emphasis added).

83 llaşcu, op. cit. (note 76), para. 316 (referring to the passage from Cyprus v. Turkey, op. cit. (note 76), quoted below in note 84). Compare, however, the apparently more restrictive approach taken by the Court in Banković, op. cit. (note 76), para. 71.

84 See e.g. Cyprus v. Turkey, Merits, op. cit. (note 76), para. 77: “Having effective overall control over northern Cyprus, [Turkey's] responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, in terms of Article 1 of the Convention, Turkey's “jurisdiction” must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey” (emphasis added), and ibid., paras. 131–136.

85 Inter-American Commission on Human Rights, Precautionary Measures in Guantánamo Bay, 12 May 2002, ILM, Vol. 41 (2002), 532.

86 Agreement between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations, 16/23 February 1903, 6 Bevans 1113, Art. III. See also the supplemental agreement of 2 July/2 October 1903, 6 Bevans 1120; the lease was rendered perpetual by the Treaty on Relations with Cuba, Washington, 29 May 1934, 48 Stat 1682, Art. III.

87 See e.g. Precautionary Measures in Guantànamo Bay op. cit. (note 85), where the Inter-American Commission granted precautionary measures on the basis that the detainees at Guantánamo Bay “remain wholly within the authority and control of the United States government”, and affirmed that “determination of a state's responsibility for violations of the international human rights of a particular individual turns not on that individual's nationality or presence within a particular geographic area, but rather on whether, under the specific circumstances, that person fell within the state's authority and control” (ibid., fn. 7).

88 See e.g. in relation to the positive duty deriving from ECHR, Art. 2, McCann and Others v. United Kingdom, ECHR, Series A, No. 324 (1995).

89 Even if responsibility due to control over the area is not established in such a case, it may still exist because of physical control over the person of the individual, as discussed in the following paragraphs.

90 Banković, op. cit. (note 76).

91 ibid., para. 79.

92 ibid., para. 80 (emphasis in original).

93 ibid., para. 80.

94 Issa Merits, op. cit. (note 76).

95 Rather, the Court decided the case on the basis that at the relevant time, Turkey did not exercise “effective overall control” of the entire area of northern Iraq (ibid., para. 75), and it was not satisfied to the required standard of proof that Turkish troops had conducted operations in the area in question (ibid., para. 81).

96 ibid., para. 74.

97 As for example in the particular instances briefly described above in note 20.

98 Lopez Burgos v. Uruguay (Comm. No. 52/1979), UN Doc. CCPR/C/13/D/52/1979 (1981), para. 12.3; Celiberti de Casanego v. Uruguay (Comm. No. 56/1979), UN Doc. CCPR/C/13/D/56/1979 (1981), para. 10.3. In relation to its jurisdiction to hear the complaints under the Optional Protocol, which also speaks of “individuals subject to its jurisdiction”, the Committee held that “The reference in article 1 of the Optional Protocol to ‘individuals subject to its jurisdiction’ (…) is not to the place where the violation occurred, but rather to the relationship between the individual and the State in relation to a violation of any of the rights set forth in the Covenant, wherever they occurred”; see Lopez Burgos, para. 12.2; Celiberti de Casariego, para. 10.2.

99 Stocké v. Federal Republic of Germany, ECHR Series A, No. 199, Opinion of the European Commission, p. 24, para. 166.

100 No attempt has been made to define the level of control sufficient to justify responsibility. It may be noted that all the cases in which de facto control has been found seem to have involved actual custody of the person in question; see e.g. Öcalan v. Turkey, Merits, 12 March 2003, para. 93 (NB: the case is currently before the Grand Chamber). It should also be noted that in Öcalan the Court did not appear to see any contradiction between its finding that the applicant was within the “jurisdiction” of Turkey even when in Kenya, and the “espace juridique” principle enunciated in Banković.

101 Note however, the decision of the English Court of Appeal in Al Skeini, op. cit. (note 124), where it was held that the fact that an individual had died in the custody of British forces in Iraq had the consequence that the UK was required to carry out an effective investigation into the circumstances of his death.

102 Ilascu and Others v. Moldova and Russia, judgment of 4 July 2004, para. 317 (citing Soering v. United Kingdom Series A, No. 161 (1989), paras. 88–91).

103 See Soering, op. cit. (note 102), para. 88; Cruz Varas v. Sweden, Merits, ECHR Series A, No. 201 (1991), paras. 75–76; see also Vilvarajah and Others v. United Kingdom, ECHR Series A, No. 215 (1991), paras. 107–108, 111. See, in general, Gilbert, G., Aspects of Extradition Law, Kluwer, Dordrecht, 1991, pp. 79–90Google Scholar; Van den Wyngaert, C., “Applying the European Convention of Human Rights to extradition: Opening Pandora's box?” International and Comparative Law Quarterly, Vol. 39, 1990, p. 757CrossRefGoogle Scholar; Dugard, C.J.R. and Van den Wyngaert, C., “Reconciling extradition with human rights”, American Journal of International Law, Vol. 92, 1998, p. 187CrossRefGoogle Scholar; Borelli, S., “The rendition of terrorist suspects to the United States: Human rights and the limits of international cooperation”, in Bianchi, A. (ed.), Enforcing International Law Norms Against International Terrorism, Hart Publishing, Oxford, 2004, p. 331Google Scholar.

104 Kindler v. Canada (Comm. No. 470/1991), UN Doc. CCPR/C/48/D/470/1991 (1993), para. 6.2.

105 CAT, Art. 3; and see Mutombo v. Switzerland (Comm. No. 13/1993), Report of the Committee against Torture, UN. GAOR, 49th Sess., Supp. No. 44, Annex 5, at 45, UN. Doc. A/49/44 (1994); Khan v. Canada (Comm. No. 15/1994), Report of the Committee against Torture, UN. GAOR, 50th Sess., Supp. No. 44, Annex 5, at 46, UN. Doc. A/49/44 (1994). The European Court of Human Rights has consistently held that expulsion or deportation is precluded “where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to [torture]” (see e.g. Ahmed v. Austria, Merits, ECHR Reports 1996-VI, para. 39), as well as other potential violations of Art. 3 of the European Convention: see D. v. United Kingdom, ECHR Reports 1997-III. The Human Rights Committee has also expanded the prohibition to cover some situations involving the death penalty, see e.g. Ng v. Canada (Comm. No. 469/1991), UN Doc. CCPR/C/49/D/469/1991 (1993), but also Kindler v. Canada, op. cit. (note 104).

106 See Soering, op. cit. (note 102), para. 113. See also Art. 3(f) of the UN Model Treaty on Extradition, which provides that extradition is barred if the person whose extradition is requested “has not received or would not receive the minimum guarantees in criminal proceedings, as contained in the International Covenant on Civil and Political Rights, Article 14”.

107 See e.g. the European Commission of Human Rights in Dehwari v. Netherlands, Report of the Commission of 29 October 1998, European Human Rights Reports, Vol. 29 (2000), 74, paraGoogle Scholar. 61, and of the European Court in Gonzalez v. Spain, judgment of 29 June 1999, para. 4 (where the case failed on the facts, although the Court did not rule out the possibility of relying upon Art. 2 in this way).

108 In the European system, this is now an absolute prohibition: see Protocols 6 and 13 and Ocalan Merits, op. cit. (note 100), paras. 196 and 198. Within other systems for the protection of human rights, a similar prohibition has been derived from the prohibition of refoulement of individuals at risk of being subject to torture or cruel, inhuman or degrading treatment; see e.g. the decision of the Human Rights Committee in Ngv. Canada, op. cit. (note 105).

109 The principle originates in Article 33 of the Convention relating to the Status of Refugees, Geneva, 28 July 1951, UNTS, Vol. 189, p. 150.

110 See e.g. Article 3 of the CAT; Art. 33 of the Refugee Convention, op. cit. (note 109).

111 See e.g. Soering, op. cit. (note 102), paras. 88–91; Ngv. Canada, op. cit. (note 105).

112 Human Rights Committee, General Comment No. 31, op. cit. (note 66), para. 12.

113 See e.g. de Sena, La nozione di giurisdizione statale nei trattati sui diritti dell'uomo, op. cit. (note 73), pp. 24–30.

114 See e.g. Cruz Varas, op. cit. (note 103), para. 70.

115 See e.g. in relation to a risk of torture: Chahal v. United Kingdom, Merits, ECHR Reports 1996-V, para. 80: “the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration” and Ahmedv. Austria, Merits, op. cit. (note 105), para. 41.

116 This logical corollary of the principle of non-refoulement has been clearly recognized by the Committee against Torture in the following terms: “the phrase ‘another State’ in article 3 refers to the State to which the individual concerned is being expelled, returned or extradited, as well as to any State to which the author may subsequently be expelled, returned or extradited” (Committee against Torture, General Comment No. 1, Implementation of Article 3 of the Convention in the Context of Article 22 (1996), UN Doc. A/53/44, annex IX, para. 2). See also: Mutombo v. Switzerland, op. cit. (note 105), para. 10; Korban v. Sweden (Comm. No. 88/1997), UN Doc. CAT/C/21/D/88/1997 (1998), para. 7. See also Human Rights Committee, General Comment No. 31, op. cit. (note 66), para. 12 (quoted above, note 112).

117 United Kingdom, “Responses to list of issues”, p. 22, available at <http://www.ohchr.org/english/bodies/cat/docs/UKresponses.pdf> (last visited 10 February 2005). Conversely, the UK made clear that in Iraq, where prisoners were transferred temporarily to the custody of the US, it retained responsibility, pursuant to a memorandum of understanding with the US, as the detaining power under the Geneva Conventions, ibid., pp. 24–25.

118 “Conclusions and recommendations of the Committee against Torture: United Kingdom”, UN Doc.CAT/C/CR/33/3, 25 November 2004, para. 4(b).

119 Ibid, para. 5(e).

120 Hamdan v. Rumsfeld, op. cit. (note 46); the case concerned a habeas petition presented on behalf of a man accused of being Osama bin Laden's driver and bodyguard, and who was standing trial before a military commission set up under the Presidential Military Order of 11 November 2001.

121 ibid., p. 15.

122 ibid., p. 18.

123 Inter-American Commission on Human Rights, Precautionary Measures in Guantánamo Bay, op. cit. (note 85).

124 [2004] EWHC 2911 (Adm.), 14 December 2004 (Rix LJ and Forbes J sitting as a Divisional Court of the Queen's Bench Division of the High Court).

125 ibid., paras. 117–222.

126 ibid., para. 286.

127 ibid., para. 281.

128 See also Resolution 1386 (2004) entitled “The Council of Europe's contribution to the settlement of the situation in Iraq”, adopted on 24 June 2004, para. 18.

129 See e.g. Al Odah v. United States, 321 F 3d 1134 (D.C. Cir., 2003), where the Court held that US courts had no jurisdiction to entertain habeas corpus petitions brought on behalf of non-US citizens detained at Guantánamo Bay, on the basis that the substantive rights enshrined in the US constitution did not apply to non-US nationals outside the sovereign territory of the United States. But see Gherebi v. Bush, 352 F.3d 1278 (9th Cir. Cal., 2003), where the opposite conclusion was reached on the ground that the US exercises “territorial jurisdiction over Guantánamo” (at 1289–1290). The decision was amended in the light of the Supreme Court's decision in Rasul and in Rumsfeld v. Padilla (124 S. Ct. 2711); see 374 F.3d 727 (9th Cir. Cal. 2004).

130 Rasul v. Bush; Al Odah v. United States, 124 S Ct. 2686 (28 June 2004).

131 Precautionary Measures in Guantánamo Bay, op. cit. (note 85).

132 Abu Ali v. Ashcroft (DCt, D.C., 16 December 2004), available at <www.dcd.uscourts.gov/04-1258.pdf> (last visited 10 February 2005).

133 ibid., pp. 1–2.

134 Ibid., p. 19.