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Guantanamo Bay: The Legal Black Hole1

  • Johan Steyn

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.

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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.

2 [1942] AC 206.

3 Nakkuda Ali v Jayaratne [1951] AC 66.

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.

5 The Civil Liberties Act 1988.

6 332 US 214.

7 Korematsuv United States, 584 F Supp (1984), at 1406 (ND Cal 1984).

8 At 1420.

9 317 US 1.

10 M Kerr As Far As I Remember (Oxford Hart 2002).

11 Oxford Clarendon Press 1994.

12 1977’ 1 WLR 766, at 783.

13 Greenwood, C, ‘International Law and the “War Against Terrorism’”, International Affairs 78, 2 (2002) 307, at 315.

14 T, Meron, Human Rights and Humanitarian Norms of Customary Law (Oxford Clarendon Press 1989), at 62–9.

15 R v Bow Street Stipendiary Magistrate, Ex P Pinochet (No 3) [2000] 1 AC 147.

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.

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.

18 Proc 7463 ‘Declaration of National Emergency by Reason of Certain Terrorist Attacks’.

19 USA PATRIOT Act 2001.

20 ‘Authorization for Use of Military Force’ Public Law 107–40, 115 Stat 224 18 09 2001.

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’.

22 Trials Under Military Order: A Guide to the Final Rules for Military Commissions, Lawyers Committee for Human Rights Briefing Paper, 07 2003.

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.

24 Call for release of ‘low-level’ Guantanamo inmates, Borger, J, The Guardian, 20 08 2002.

25 Aldrich, George H, The Taliban, Al-Qaeda, and The Determination of Illegal Combatants, 96 AJIL 891.

26 C Girod quoted in La Vigilance inquiète de la Croix-Rouge à Guantanamo, P Jarreau, LeMonde, 18 10 2003.

27 ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities. D Priest and B Gellman, Washington Post, 26 12 2002.

28 Suicide Attempts at Guantanamo Reach 32, Associated Press, 26 09 2003.

29 Interrogation or torture: Blurred line?, Van Natta, D Jr, New York Times, 8 03 2003.

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.

33 Gilbert, M, Winston S. Churchill, Vol VII, Road to Victory, 19411945, at 1201–2.

34 The Supreme Court Goes to War: The Meaning and Implications of the Nazi Saboteur caseMilitary Law Review, vol 89, 59, at 95.

35 The Saboteurs' case, Journal of Supreme Court History, vol 1, 6182.

36 Al Odah v US 321 F 3d 1124 (2003).

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.

38 R (Abbasi) v The Secretary of State for Foreign Affairs [2002] EWCA Civ 1598.

39 1982 4 EHRR 482, at 586, para 8.

40 Questioning Terror Suspects in a Surreal World, Van Natta, D Jr, New York Times, 16 03 2003.Wake-Up call to UK government on torture, Amnesty International, 7 03 2003.

41 D Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. 2003, at 42.

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).

44 Padilla v Bush (SDNY 4 12 2002) (No 01 Civ 4445 (MBM)).

45 Un-American Activities, , Anthony Lewis, New York Review of Books, Vol L, No 16,23 10 2003, at 19.

46 The Threat to Patriotism, New York Review of Books, 28 11 2002, 44.

47 The Times, 25 03 2003, Law 4.

48 2006 2002,122 Supreme Ct 2242 (2002).

49 478 US 186 (1986).

50 The United States and Human Rights, 11 2003, London.

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.

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.

* A Lord of Appeal in Ordinary.

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