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Published online by Cambridge University Press: 19 March 2012
The policies of the U.S.—developed in response to the threat of terroism have been criticized. This is of importance, not only because of the harm it does to the United States own reputation, but because of the influence such measures have on other countries with less commitment to the protection of human rights than the United States has historically had. It is, however, a crucial issue because of the impact that such policies can have on the political will of the international community to respect and promote half a century of endeavor to build an international human rights culture, and on attitudes and behavior in countries affected by such measures. The exception becomes the rule; the temporary becomes permanent; and fairness and due process cease to have the meaning they once had. This Article's remarks are directed to the right to a fair hearing which must be seen, however, in a broader context as a concern about a discourse which, whilst retaining the label, seeks to change the content of established principles of human rights.
1 Henkin, Louis, Rights American and Human, 79 Colum. L. Rev. 405, 415 (1979)CrossRefGoogle Scholar.
2 U.S. Department of State, Bureau of Democracy, Human Rights and Labor, available at http://www.state.gov/g/drl.
3 Eur. Parl. Ass. Resolution no. 1507/06. Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe member states, 17th sees., Doc No. 10957 (June 27 2006) [hereinafter Eur. Par. Ass. Res. 1507/06].
4 U.N. Econ. Soc. Council [ECOSOC], Commission on Human Rights, Working Group on Arbitrary Detentions, Working Paper: Civil and Political Rights, Including the Question of Torture and Detention, U.N. Doc. E/CN.4/2003/8 of 16 (Dec. 2002)Google Scholar.
5 U.N. ECOSOC, Commission on Human Rights, Report on: Situation of Detainees at Guantánamo Bay, U.N. Doc. E/CN.4/2006/120 (Feb. 2006)Google Scholar.
6 U.N. OHCHR, Commission Against Torture, Concluding Observations on the United States of America, U.N. Doc. CAT/C/USA/CO/2 (May 18 2006)Google Scholar.
7 U.N. URC, Concluding Observations of the Human Rights Committee on the Second and Third U.S. Reports to the Committee, U.N. Doc. CCPR/C/USA/CO/3/Rev 1 (July 28, 2006)Google Scholar.
8 Inter-Am. C.H.R, Resolution No. 1/06 on Guantánamo Bay, OAS/Ser.L/V/II.127 (July 17-21, 2006)Google Scholar [hereinafter Observation of HRC on the US].
9 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
10 Eur. Par. Ass. Res. 1507/06, supra note 3, ¶ 5.
11 Id. ¶ 8.
12 Greaty, Conor, Can Human Rights Survive, The Hamlyn Lectures 136 (2005)Google Scholar.
13 S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sep. 28, 2001).
14 S.C. Res. 1624, U.N. Doc. S/RES/624 (Sep. 14, 2005).
15 GA. Res. 57/219, U.N. Doc. A/RES/59/219, (Dec. 18 2002); G.A. Res. 58/187, U.N. Doc A/RES/58/187, (Mar. 22, 2004); G.A. Res. 59/191, U.N. Doc. A/RES/59/191; G.A. Res. 60/288, U.N. Doc. A/RES/60/288 (Sep. 8, 2006).
16 Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 10, U.N. Doc. A/810 at 71 (1948); European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6, Sept. 3, 1953, 213 U.N.T.S. 222; Organization of American States, American Convention on Human Rights, art. 8, Nov. 22, 1969, O.A.S.T.S. 36, 1144 U.N.T.S.; The African [Banjul] Charter on Human and Peoples' Rights, art. 7, OAU Doc. CAB/LEG/67/3 rev. 5, reprinted in 21 I.L.M. 58 (1982).
17 U.N. Human Rights Committee, General Comment 29 States of Emergency (article 4), ¶¶ 11 & 16, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001)Google Scholar; Henckarets, Jean-Marie, 1 Customary International Humanitarian Law: Rules, Rule 100 (2005)Google Scholar.
18 See the European Court of Human Rights in Helmers v. Sweden, 212 Eur. Ct. H.R. (Ser. A), at ¶ 33 (1991).
19 Kostovski v. Netherlands, App. No.166, 12 Eur. H.R. Rep. 434, ¶ (44 (1990).
20 R v. H & C [2003] UKHL 3, [2004] A.C., ¶ 11 (appeal taken from Eng.) [hereinafter R v. H & C].
21 R v. Horseferry Road M, Ex p Bennett [1994] 1 AC 42, 68; R v. H & C, supra note 20, ¶ 10.
22 Montgomery v. HM Advocate [2003] 1 AC 641, 673 referring to the jurisprudence of the European Court of Human Rights.
23 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc. A/6316 (Dec. 16, 1966), art. 4, Dec. 16, 1966, 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter ICCPR)]; see also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977. art. 75 (4)(d), 1125 U.N.T.S. 3 [hereinafter Protocol I].
24 ICCPR, supra note 23, art. 14(1); Protocol 1, supra note 23, art. 75 (1).
25 ICCPR, supra note 23, art. 14(1); Protocol 1, supra note 23, art. 75 (4).
26 ICCPR, supra note 23, art. 14 (3) (d); Protocol 1, supra note 23, art. 75 (4) (e), (g).
27 ICCPR, supra note 23, art. 14 (3) (e); Protocol 1, supra note 23, art. 75 (4) (e).
28 Military Order of Nov. 13, 2001: The Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, Fed. Reg. 57831-57836; Section 1 (f) states that it is “not practicable to apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States District Courts” [hereinafter Military Order].
29 Observation of HRC on the US, supra note 8, ¶ 10. Israel apparently takes a similar position concerning the application of the ICCPR and other treaties to which it is party. This is contrary to the opinion in the joint report of five experts holding mandates of special procedures of the Commission on Human Rights, (Feb. 15, 2006) [hereinafter The Joint Report]; citing the General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add. 13 (May 26, 2004), that obligations under ICCPR require state parties to “respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State party, even if not situated within the territory of that state party”, and the finding of the International Court of Justice that the ICCPR extends to “acts done by a state in the exercise of its jurisdiction outside of its own territory” Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131 (July 9) [hereinafter Wall Advisory Opinion].
30 S.J. Res 23, 107th Cong. (Sep. 18, 2001).
31 Military Order, supra note 28, sect. 2.
32 Id. sect. 3.
33 Id. sect. 4.
34 Id.
35 Id. sect. 2, 4 A (1).
36 Id. sect. 4 (c) (8).
37 Id. sect. 7(b).
38 Department of Defense Military Commission Order No 1 (Mar. 21, 2002) [hereinafter Military Commission Order].
39 Id. ¶¶ 6 D(1), 6 D(2)(b).
40 Id. ¶ 4A(3-4).
41 Rasul v. Bush, 542 U.S. 466 (2004).
42 Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
43 Deputy Secretary of Defense Order of July 7, 2004.
44 In December 2005 Congress, at the instance of Senator McCain, passed The Detainee Treatment Act of 2005, Pub. L. No. 109-148 §§ 1001-1006 (2005) [hereinafter DTA]; DTA sought to prohibit cruel, inhuman, or degrading treatment of any person in the custody or under the physical control of the United States. However, DTA stripped U.S. Courts of habeas jurisdiction in respect of Guantánamo detainees. In Hamdan v. Rumsfeld, supra note 42, the U.S. Supreme Court held that the exclusion of habeas did not apply to cases pending at the time the Detainee Treatment Act was passed. The Military Commissions Act attempted to close this gap. The validity of this provision is presently the subject of a constitutional challenge. See also infra note 59.
45 Military Commission Act of 2006, Pub. L. No. 109-306 (Oct. 17, 2006) [hereinafter MCA]. It does so by introducing a new Chapter 47A into Title 10 of the US Code. The references that follow are to paragraphs of the new Chapter 47A.
46 MCA, Id. ¶ 948b. The term “unlawful enemy combatant” is defined in paragraph 948a(1).
47 Id. ¶ 948h.
48 Id ¶ 948a(1)(ii).
49 See DTA, supra note 44.
50 MCA, supra note 45, ¶¶ 948r, 949a.
51 Congressional Research Service Report for Congress, Order Code RS22173, (Updated July 20, 2005), notes that the status of all detainees had been determined by Combat Status Review Tribunals. Five hundred and twenty had been determined to be enemy combatants and 38 had been determined not to be enemy combatants. Of those, 23 had already been returned to their home states. See also The Joint Report, supra note 29, which confirms that all persons being held at Guantánamo Bay as at October 2005 had already had their status determined by such tribunals.
52 In re Guantánamo Detainee Cases, 355 F. Supp.2d 443 (D.C. Cir. 2005) (Jan. 31, 2005) [hereinafter Guantánamo Detainees cases].
53 Id. at 11.
54 MCA, supra note 45, at 7.
55 Id. § 5.
56 Pejic, Jelena, Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence, 87 Int'l Rev. Red Cross, 375, 377-79 & 386 (June 2005)Google Scholar.
57 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
58 Boumediene v. Bush, 549 U. S.__ (2007).
59 Id. (Decision of June 29, 2007).
60 Guantánamo Detainees cases, supra note 52, at 3-4
61 Denbeaux, Mark et al. , Report on Guantánamo Detainee: A Profile of 517 Detainees through Analysis of Department of Defense Data (2006)Google Scholar.
62 See the preliminary findings of the United Nations Special Rapporteur on Promotion and Protection of Human Rights while Countering Terrorism: Mission to the United States of America (May 13, 2007)Google Scholar, U.N. Doc. A/HRC/6/17/Add.3; The Joint Report, supra note 29, ¶¶ 25-26.
63 Guantánamo Detainees cases, supra note 52, at 12.
64 Pejic, supra note 56, at 382.
64a The decision has now been given. In Boumediene v. Bush, 553 U.S.__(2008) a majority of the Supreme Court held that Guantánamo Bay detainees have a right to habeas corpus, and that the exclusion of that right by the Military Commissions Act was unconstitutional.
65 Forcese, Craig & Waldman, Lorne, Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of “Special Advocates” in National Security Proceedings (2007)Google Scholar, a study undertaken as part of a larger project with the Federal Court of Canada on the administration of justice and security in democracies.
66 R v. H & C, supra note 20, ¶ 21.
67 Roberts v. Parole Board [2005] UKHL 45 [2005], ¶¶ 26-31.
68 Special Immigration Appeals Commission Act 1997, ch. 68, and rule 7 of its rules of procedure (U.K.).
69 North Ireland Act 1998, ch. 47, §§ 91 (7) & (8) (U.K.).
70 Terrorism Act 2000, ch. 11, § 5 (U.K.).
71 Anti-Terrorism, Crime and Security Act, 2001, ch. 24, § 70 (U.K.).
72 Northern Ireland (Sentences) Act 1998, ch. 35, schedule 2, ¶ 7(2) (U.K.).
73 The Life Sentences (Northern Ireland Consequential Amendments) Order 2001, Schedule 2, § 6.
74 See the examples given in Roberts v. Parole Board, supra note 67.
75 Whits, Michael, Prisoners of Public Opinion, The Guardian, Aug. 28, 2007Google Scholar. According to the report in the Guardian it is expected that the orders would apply to 300-450 offenders a year including teenagers as young as 16.
76 A v. Secretary of State for the Home Office [2004] UKHL 56 [2004].
77 Secretary of State for the Home Department v. MB [2006] EWCA Civ 1140, ¶ 43; Secretary of State for the Home Department v E and Another [2007] UKHL 47 ¶¶ 14-17.
78 See Secretary of State for the Home Department v. JJ [2007] UKHL 45 [2007], in which the control orders on six individuals confined each of them to a small flat for 18 hours a day, during which they would only be entitled to receive visitors authorized by the Home Office to which name, address, date of birth and photographic identity had to be supplied. The residences would be subject to spot searches by the police. During the six hours of “freedom” the “controlees” were confined to restricted urban areas and were prohibited from meeting anyone by pre-arrangement who did not have the required Home Office clearance. The control orders were set aside on the grounds that they constituted a deprivation of liberty contrary to Article 5 of the European Convention. It is apparent from the judgments that a lesser period of “house arrest” would not necessarily have been beyond the powers of the Home Secretary.
79 This calls for an “objective” enquiry by the court to determine whether “reasonable grounds” exist for suspecting that the person concerned was involved in a terrorist related activity. See the judgment of the Court of Appeal in Secretary of State for the Home Department v. MB [2007] UKHL 46, [2007], ¶¶ 58-60. As to the measures to be imposed if such suspicion is established, the court will scrutinize the decision showing deference to the Home Secretary who has the responsibility of deciding what is necessary.
80 Secretary of State for the Home Department v. E and Another; supra note 77, ¶¶ 17-21.
81 S. of Home Dep. v. MB, supra note 79, ¶ 24.
82 See S. of Home Dep. v. JJ, supra note 78, for a discussion as to when there will have been a deprivation of liberty within the meaning of the European Convention.
83 Professor Andrew Ashworth has questioned whether the procedure is compatible with Article 6 of the European Convention. See Ashworth, Andrew: Four Threats to the Presumption of Innocence, 123(1) S. A. L. J. 63, 95 (2006)Google Scholar; but see the judgments of the House of Lords in S. of Home Dep. v. MB, supra note 79, and in S. of Home Dep. v. JJ, supra note 78.
84 S. of Home Dep. v. MB, supra note 79, ¶ 23.
85 Id. ¶ 72.
86 Id. ¶ 135.
87 Forcese & Waldman, supra note 65, at 44-45; Roberts v. Parole Board, supra note 67, ¶¶ 57 & 72.
88 In re K (infants) 1963, ch. 381, 405-06, cited by Lord Bingham in Roberts v. Parole Board, supra note 67, as being the ordinary principle governing the conduct of judicial proceedings in the United Kingdom.
89 Arar v. Ashcroft, 414 F. Supp 2d 250, U.S. D.C. Cir. For the Eastern Dis. (Feb. 16 2006). In a case raising similar issues, El Masri v. United States, 479 f. 3d 296, 4th Cir. (Mar. 2, 2007), the government was able to block the litigation on the grounds that it would infringe the state secrecy doctrine. An application for certiorari to the U.S. Supreme Court was refused.
90 Charkaoui v. Canada, [2007] S.C.R. 9.
91 1985 Immigration Reform and Control Act, S. 1200, section 40.1 (repealed in 2002). This function was previously exercised by the Federal Court under the Immigration Act in respect of non-permanent residents.
92 Charkoui v. Canada, supra note 90.
93 Id. ¶ 81.
94 Id. ¶ 61.
95 Cahal v. United Kingdom, 23 Eur. Ct. H.R. 413 (1996).
96 Id. ¶¶ 131 & 144. The Court refers to the appointment of special counsel by the court in terms of the Canadian 1976 Immigration Act. This may be a reference to procedures followed prior to the introduction of the SIRC procedure under the 1985 Act. Under SIRC the “special counsel” was either employees of or appointed by SIRC.
97 Doorson v. The Netherlands, Eur. Ct. H.R. 14 (1996); see also the discussion of decisions of the European Court of Human Rights on this issue in S. of Home Dep. v. MB, supra note 79, ¶ 62.
98 Roberts v. Parole Board, supra note 67.
99 Id. ¶ 77.
100 Per Lord Bingham in S. of Home Dep. v. MB, supra note 79, ¶ 36. See also Baroness Hale, ¶ 72, Lord Carswell, ¶ 85, and Lord Brown, ¶ 90.
101 Forcese & Waldman, supra note 65.
102 HCJ 5100/94 The Public Committee against Torture in Israel v. The State of Israel [1999] IsrSC 53(4) 817, 845.
103 Lord Johan Steyn, Guantánamo Bay: The Legal Black Hole, 27th F.A. Mann Lecture, Nov. 2003.
104 Dyzenhaus, David, The Constitution of Law: Legality in a Time of Emergency 2–3 (2006)CrossRefGoogle Scholar.
105 Maitland, F.W., The Constitutional History of England 263 (Fisher, H.A.L. ed., Cambridge University Press, 1926, 1908)Google Scholar.
106 S. of Home Dep. v. MB, supra note 79, ¶ 89.