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Published online by Cambridge University Press: 17 January 2008
The most powerful democracy is detaining hundreds of suspected foot soldiers of the Taliban in a legal black hole at the United States naval base at Guantanamo Bay, where they await trial on capital charges by military tribunals. This episode must be put in context. Democracies must defend themselves. Democracies are entitled to try officers and soldiers of enemy forces for war crimes. But it is a recurring theme in history that in times of war, armed conflict, or perceived national danger, even liberal democracies adopt measures infringing human rights in ways that are wholly disproportionate to the crisis. One tool at hand is detention without charge or trial, that is, executive detention. Ill-conceived rushed legislation is passed granting excessive powers to executive governments which compromise the rights and liberties of individuals beyond the exigencies of the situation. Often the loss of liberty is permanent. Executive branches of government, faced with a perceived emergency, often resort to excessive measures. The litany of grave abuses of power by liberal democratic governments is too long to recount, but in order to understand and to hold governments to account, we do well to take intoaccount the circles of history.
1 This is the text of the Twenty-Seventh FA Mann Lecture, organized by the British Institute of International and Comparative Law and Herbert Smith and held in Lincoln's Inn Old Hall, 25 November 2003 with Sir Lawrence Collins in the chair.Google Scholar
4 Jowell, J, QC, ‘Judicial Deference: Servility, Civility or Institutional Capacity?’ ‘2003’ PL 592. I deal with this point in my recent lecture Dynamic Interpretation Amidst an Orgy of Statues, The Brian Dickson Memorial Lecture, Ottawa, 2 10 2003.Google Scholar
6 332 US 214.
8 At 1420.
9 317 US 1.
13 Greenwood, C, ‘International Law and the “War Against Terrorism’”, International Affairs 78, 2 (2002) 307, at 315.Google Scholar
14 T, Meron, Human Rights and Humanitarian Norms of Customary Law (Oxford Clarendon Press 1989), at 62–9.Google Scholar
16 The International Criminal Tribunal for Rwanda was created by Security Council resolution 955 of 8 11 1994; The International Criminal Tribunal for the former Yugoslavia (‘ICTY”) was established by resolution 827 of 25 May 1993 and the case of Milosevic was transferred to the ICTY on 29 June 2001.Google Scholar
17 ‘Is The Growth of International Criminal Law A Threat to State Sovereignty?’ Segal, Irving R. Lecture, University of Pennsylvania, Philadelphia PA, 24 09 2003.Google Scholar
18 Proc 7463 ‘Declaration of National Emergency by Reason of Certain Terrorist Attacks’.Google Scholar
20 ‘Authorization for Use of Military Force’ Public Law 107–40, 115 Stat 224 18 09 2001.Google Scholar
21 Military Order of 13 11 2001, ‘Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism‘ 66 FR 57833 (16 Nov 2001) ‘The Presidential Order’.Google Scholar
22 Trials Under Military Order: A Guide to the Final Rules for Military Commissions, Lawyers Committee for Human Rights Briefing Paper, 07 2003.Google Scholar
23 United States of America, The Threat of a Bad Example: Undermining international standards as ‘war on terror’ continues, Amnesty International, 19 08 2003, at 21.Google Scholar
24 Call for release of ‘low-level’ Guantanamo inmates, Borger, J, The Guardian, 20 08 2002.Google Scholar
25 Aldrich, George H, The Taliban, Al-Qaeda, and The Determination of Illegal Combatants, 96 AJIL 891.Google Scholar
26 C Girod quoted in La Vigilance inquiète de la Croix-Rouge à Guantanamo, P Jarreau, LeMonde, 18 10 2003.Google Scholar
27 ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities. D Priest and B Gellman, Washington Post, 26 12 2002.Google Scholar
29 Interrogation or torture: Blurred line?, Van Natta, D Jr, New York Times, 8 03 2003.Google Scholar
30 The Amnesty report ited above, at 23.
31 Presidential Order s 4(3).
32 I am indebted to Lord Bingham of Cornhill for this reference. See his Romanes Lecture given on 15 10 2002 in Oxford, 52 ICLQ 2003, at 841–58.Google Scholar
34 ‘The Supreme Court Goes to War: The Meaning and Implications of the Nazi Saboteur case’ Military Law Review, vol 89, 59, at 95.Google Scholar
37 The order reads as follows: ‘The petitions for writs of certiorari are granted limited to the following Question: Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba.’ A powerful amicus curiae brief signed, inter alia, by Sir Sydney Kentridge QC, Colin Nicholls QC, and Timothy Otty on the law of habeas corpus has been placed before the United States Supreme Court.
41 D Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. 2003, at 42.Google Scholar
42 (As n 37).
43 Hamdi v Rumsfeld (ED Va 11 June 2002) (No 02 CV 439); (4th Cir 12 July 2002) (No 02–6895); (ED Va 16 Aug 2002) (No 2: 02 CV 439); (4th Cir 8 Jan 2003) (No 02–7338); (4th Cir 9July 2003) (No 02–7228).
45 Un-American Activities, , Anthony Lewis, New York Review of Books, Vol L, No 16,23 10 2003, at 19.Google Scholar
51 The citation relies on the magisterial essay of President Aharon Barak, ‘A Judge on Judging: The Role of a Supreme Court in a Democracy’, Harvard LR vol 116, no 111 2002, at 148.Google Scholar
52 I have been greatly helped in preparing this lecture by my wife, Susan, by Laura Johnson, my judicial assistant, and by Alex Glassbrook, my son-in-law.
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