The ‘war on terror’ has led to grave human rights violations and, in response, to a growing volume of human rights litigation. This article provides an overview of litigation that has unfolded in recent years in relation to issues such as arbitrary detention, torture and ill-treatment, extraordinary rendition, extraterritorial application of human rights norms and the creeping reach of the ‘terrorism’ label. These cases provide a prism through which are displayed key characteristics of the war on terror as it affects human rights, and enables us to begin to ask questions regarding the role of the courts and the impact of human rights litigation in this area.
1 This note focuses on select human rights cases against state violations brought before national or, to a lesser extent, regional and international human rights bodies. In many of the cases cited in this survey, INTERIGHTS was involved as representative or third party/amicus curiae intervener. It is noted that cases that serve human rights ends can take many other forms, from civil cases against corporations to criminal cases against individual members of intelligence agencies or – on the basis of universal jurisdiction – against high government officials. There are examples of such cases being brought in the relation to the GWOT but these are not addressed here.
2 As regards US responsibility under the American Declaration of the Rights and Duties of Man, see Inter-American Commission on Human Rights, Precautionary Measures in Guantánamo Bay, 13 March 2002. Another line of litigation has concerned the role of other states in transferring or failing to support nationals detained in Guantánamo: see, e.g., ECtHR, Boumediene and others v. Bosnia and Herzegovina, Application Nos. 38703/06, 40123/06, 43301/06, 43302/06, 2131/07 and 2141/07 found inadmissable by the ECtHR on 18 November 2008 before the European Court of Human Rights (ECHR=Convention), or England and Wales Court of Appeal, R (Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs,  EWCA Civ 1598.
3 Two of the three groups of cases concerned US nationals detained in the United States or outside, and the third (affecting the vast majority of detainees) concerned non-nationals detained beyond US soil. The first of these cases – Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003) – is less relevant, as it concerned a US citizen who was ultimately transferred to the regular criminal justice system within the United States, charged with conspiracy and found guilty before a federal court.
4 US Supreme Court, Yaser Esam Hamdi and Esam Fouad Hamdi as next friend of Yaser Esam Hamdi, Petitioners v. Donald H. Rumsfeld, Secretary of Defense, et al., 542 US 507 (2004) decided June 28 2004.
5 Ibid., 536.
6 US Supreme Court, Shafiq Rasul, et al., Petitioners v. George W. Bush, President of the United States, et al.; Fawzi Khalid Abdullah Fahad al Odah, et al., Petitioners v. United States, et al., 542 US 466, decided June 28 2004.
8 For an analysis of the operation of the Combatant Status Review Tribunals, where detainees lack access to the evidence against them, see Mark Denbeaux et al., No-Hearing Hearings: CSRT: The Modern Habeas Corpus?, available at http://law.shu.edu/news/final_no_hearing_hearings_report.pdf (last visited 15 October 2008).
9 US Supreme Court, Salim Ahmed Hamdan, Petitioner v. Donald H. Rumsfeld & Others, 548 US 557 (2006).
10 Uniform Code of Military Justice, UCMJ, 64 Stat. 109, 10 USC ch.47.
11 MCA, s.7(1)(e):
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 USC 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
12 Little clarity was provided by lower courts. In two cases – Al Odah and Boumediene – the district courts reached completely different outcomes and, on 20 February 2007, the DC Circuit Court of Appeals ruled 2–1 that the Guantánamo detainees have no constitutional right to habeas corpus review of their detentions in federal court.
13 US Supreme Court, Lakhdar Boumediene, et al., Petitioners v. George W. Bush, President of the United States, et al., 553 US.
14 While President Bush's immediate response to the judgment was equivocal, US President Barak Obama indicated shortly upon taking office that the Guantanamo facility would be closed. ‘Obama plans executive order to close Guantanamo Bay’ CNN on-line, 22 January 2009, http://edition.cnn.com/2009/POLITICS/01/21/guantanamo.hearings/index.html.
15 This was graphically demonstrated by the tone and content of some of the dissents, notably Scalia J's assertion of the ‘disastrous conse-quences’ of the majority judgment which he claimed ‘will almost certainly cause more Ameri-cans to be killed’. Boumediene, above note 13, Dissenting Judgment of Scalia J, p. 2.
16 E.g., as noted above, Congress reacted to the Hamdan judgment by divesting the courts of jurisdiction and of ‘inconvenient’ sources of law, rather than taking the judicial lead and bringing policy into line with law.
17 Munaf et al. v. Geren, Secretary of the Army, et al., Certiorari to the United States Court of Appeals for the District of Columbia circuit, No. 06–1666. Argued March 25, 2008 – Decided 12 June 2008.
18 UK House of Lords Appellate Committee, A and Others v. Secretary of State for the Home Department, X and another v. Secretary of State for the Home Department  UKHL 56 (A & Ors (Derogation)).
19 See sections 21–32 of the United Kingdom's Anti-terrorism, Crime and Security Act, 2001, which ‘allow[s] the detention of those the Secretary of State has certified as threats to national security and who are suspected of being international terrorists where their removal is not possible at the present time. These provisions change the current law, which allows detention with a view to removal only where removal is a realistic option within a reasonable period of time … ’.
20 Controversial rules related to, for example, access to counsel and to evidence. See, e.g., the report of the United Kingdom's Parliamentary Constitutional Affairs Committee ‘The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates’, report of session 2004/5, HC 323-II, available at www.parliament.the-stationery-office.co.uk/pa/cm200405/cmselect/cmconst/323/323ii.pdf (last visited 15 October 2008). See also, e.g., ‘Ian Macdonald QC resigns from SIAC’, 1 November 2004, available at www.gardencourtchambers.co.uk/news/news_detail.cfm?iNewsID=268 (last visited 20 April 2008).
21 A & Ors (Derogation), above note 17, Lord Bingham, para. 132: ‘I would hold that the indefinite detention of foreign nationals without trial has not been shown to be strictly required, as the same threat from British nationals whom the government is unable or unwilling to prosecute is being met by other measures which do not require them to be detained indefinitely without trial. The distinction which the government seeks to draw between these two groups – British nationals and foreign nationals – raises an issue of discrimination. But, as the distinction is irrational, it goes to the heart of the issue about proportionality also. It proceeds on the misconception that it is a sufficient answer to the question whether the derogation is strictly required that the two groups have different rights in the immigration context. So they do. But the derogation is from the right to liberty. The right to liberty is the same for each group. If derogation is not strictly required in the case of one group, it cannot be strictly required in the case of the other group that presents the same threat.’
22 Only in relation to certain rights in limited circumstances – notably relating to political life – are rights enjoyed only or to a greater degree by a state's own citizens. See, e.g., UN Human Rights Committee General Comment No. 15, The position of aliens under the Covenant , in UN Doc. HRI/GEN/1/Rev.6 (2003), p. 140. Also note the IACHR comment in relation to Guantánamo detainees: ‘[t]he determination of a state's responsibility for violations of the international human rights of a particular individual turns not on the individual's nationality … ’. Inter-American Commission on Human Rights, Precautionary Measures in Guantánamo Bay, Cuba, 13 March 2002.
23 On control orders authorized by the Prevention of Terrorism Act 2005 and their operation, see the statement made by Tony McNulty, Minister for Security, Counter-Terrorism, Crime and Policing (The Rt Hon Tony McNulty) to Parliament: ‘Control Orders Update (11 March 2008–10 June 2008)’, 12 June 2008, available at http://security.homeoffice.gov.uk/news-publications/news-speeches/control-orders-update-0608 (last visited 15 October 2008). The Act authorized both derogating control orders, where the government recognized that derogation from the ECHR would be required, and non-derogating orders, where, in the government's view, it would not.
24 UK House of Lords, Secretary of State for the Home Department (Appellant) v. JJ and others (FC) (Respondents),  UKHL 45, decided 31 October 2007. On control order litigation in Australian courts, see High Court of Australia, Thomas v. Mowbray  HCA 33, 2 August 2007, available at www.austlii.edu.au/au/cases/cth/HCA/2007/33.html (last visited 15 October 2008), where, in a 5:2 decision, the High Court of Australia upheld the constitutionality of a criminal anti-terror law under which a federal magistrate issued an interim control order.
25 Human rights bodies have long considered the extraterritorial application to depend on whether the state exercised ‘effective control’ abroad. See, e.g., International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, which, following earlier Human Rights Committee decisions, noted that it is unconscionable to permit states to do abroad what they are prohibited from doing at home. A stricter approach, at least as regards the ECHR, was apparent when the European Court of Human Rights suggested in the Bankovic v. Belgium case that control over territory, and not just control over individuals or situations by agents acting abroad, may be required for the Convention obligations to apply. See, e.g., Helen Duffy, The War on Terror and the Framework of International Law, Cambridge University Press, Cambridge, 2005, pp. 282–9, 332–7.
26 See IACHR Guantanamo Bay Precautionary Measures, above note 21.
27 UK House of Lords, Al-Skeini v. Secretary of State for Defence,  UKHL 26, 13 June 2007.
28 At all stages the government denied the extraterritorial applicability of the Human Rights Act (as opposed to the ECHR). The government did not challenge the fact that, provided that the Convention and the UK Act were applicable, there existed an obligation to carry out an investigation and the case should go back to the divisional court for assessment of the facts.
29 For the NGO third-party intervention, including support for the ‘direct or immediate’ link, see www.interights.org.
30 As in the United Kingdom, human rights protections are often incorporated into domestic law. However, IHL violations lack an enforcement mechanism and, under CAT, neither the United States nor the United Kingdom has made the declaration required under Art. 22 to allow for individual petitions.
31 The Al Skeini case, above note 26, has been presented to the ECtHR.
32 See, e.g., Conclusions and recommendations of the Committee against Torture; United States of America, UN Doc. CAT/C/USA/CO/2, 25 July 2006: ‘The State party should recognize and ensure that the provisions of the Convention expressed as applicable to “territory under the State party's jurisdiction” apply to, and are fully enjoyed, by all persons under the effective control of its authorities, of whichever type, wherever located in the world.’ See also Conclusions and recommendations of the Committee against Torture; United Kingdom of Great Britain and Northern Ireland, Crown Dependencies and Overseas Territories, UN Doc. CAT/C/CR/33/3, 10 December 2004: ‘The Committee expresses its concern at … the State party's limited acceptance of the applicability of the Convention to the actions of its forces abroad, in particular its explanation that “ those parts of the Convention which are applicable only in respect of territory under the jurisdiction of a State party cannot be applicable in relation to actions of the United Kingdom in Afghanistan and Iraq”; the Committee observes that the Convention protections extend to all territories under the jurisdiction of a State party and considers that this principle includes all areas under the de facto effective control of the State party's authorities.’
33 UK House of Lords, R (on the application of Al-Jedda) v. Secretary of State for Defence,  UKHL 58, Judgment of 12 December 2007.
34 As the Lords noted, the United Kingdom had never claimed before the case that the UN did exercise control over these operations.
35 The majority distinguished the admissibility decision of the Grand Chamber of the European Court of Human Rights in Behrami v. France, Saramati v. France, Germany and Norway, Application Nos. 71412/01 and 78166/01, May 2, 2007, which attributed the acts of KFOR to the United Nations and not to the individual countries that contributed forces to that mission.
36 ECtHR, Saadi v. Italy, Appl. No. 37201/06, Judgment of 28 February 2008.
37 ECtHR, Ramzy v. the Netherlands, Appl. No. 25424/05, pending, available at www.echr.coe.int/eng/press/2005/oct/applicationlodgedramzyvnetherlands.htm (last visited 16 October 2008).
38 The intervention was presented by the governments of Lithuania, Latvia, Portugal and the United Kingdom. See the ‘refining’ and limiting of the UK government position to cruel and inhuman treatment in the Parliamentary Joint Committee on Human Rights Thirty Second report, Session 2005-6, available at www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/278/27808.htm (last visited 15 October 2008).
39 For the intervention in the Ramzy case submitted on behalf of several international NGOs, see www.interights.org.
40 See, most notably, ECtHR, Chahal v. United Kingdom, ECtHR Reports 1996-V, no. 22, Judgment of 15 November 1996.
41 UK House of Lords, A v. Secretary of State for the Home Department (SSHD) (No. 2)  UKHL 71, Judgment of 9 December 2005.
42 Ibid., p. 30 citing McNally JA.
43 In contrast to the majority finding, compare the test proposed by Lord Bingham, according to which evidence should be regarded as inadmissible if the executive had been unable to show that it was not obtained by torture. Ibid., paras. 54–56.
44 See, e.g., Council of Europe Committee on Legal Affairs and Human Rights, Rapporteur Mr Dick Marty, Alleged secret detentions in Council of Europe member states, Information Memorandum II, AS/Jur (2006) 03 rev, 22 January 2006, available at http://assembly.coe.int/CommitteeDocs/2006/20060124_Jdoc032006_E.pdf (last visited 15 October 2008).
45 See, e.g., Sciolino, Elaine, ‘Spanish judge tells US Guantánamo is an insult’, International Herald Tribune, 4 June 2006, available at www.iht.com/articles/2006/06/04/news/gitmo.php (last visited 16 October 2008).
46 See Committee on Legal Affairs and Human Rights, Information Memorandum II, above note 43.
47 Information on the case is available at www.aclu.org/safefree/torture/29868res20070524.html (last visited 15 October 2008).
48 In the US Supreme Court, El-Masri v. United States, Case No. 06-1613, petition for a writ of certiorari denied 9 October 2007. In the US District Court for the Eastern District of Virginia, El-Masri v. Tenet, Case 1:05-cv-01417-TSE-TRJ, order granting US motion to dismiss granted May 12, 2006. For details of the petition lodged before the Inter-American Commission on Human Rights, see www.aclu.org/pdfs/safefree/elmasri_iachr_20080409.pdf (last visited 15 October 2008).
49 See also, e.g., the case of Maher Arar, a Syrian-born Canadian detained in the United States and transferred to torture in Syria. ‘Torture and accountability’, International Herald Tribune, 19 November 2007.
50 See, e.g., Jeannie Shawl, ‘US rejects German bid for extraction of CIA agents in el-Masri rendition’, Associated Press via Jurist Legal News & Research, 22 September 2007, available at http://jurist.law.pitt.edu/paperchase/2007/09/us-rejects-germany-bid-for-extradition.php (last visited 16 October 2008).
51 ‘Italy indicts 31 linked to CIA rendition case’, International Herald Tribune, 15 February 2007, available at www.iht.com/articles/ap/2007/02/16/europe/EU-GEN-Italy-CIA-Kidnap.php (last visited 16 October 2008).
52 As regards the el-Masri case specifically, calls for an effective investigation into the involvement of Macedonian officials have been reiterated. See, e.g., ICJ E-Bulletin on Counterterrorism & Human Rights, ‘FYR Macedonia: UN experts call for Macedonian investigation in El-Masri case’, No. 24, June 2008, available at www.icj.org/IMG/E-Bulletin_June08.pdf (last visited 15 October 2008): ‘In April and May, the UN Committee against Torture and the Human Rights Committee expressed concerns about the investigations carried out by the Former Republic of Macedonia in the abduction and ill-treatment of Mr Khaled El-Masri when held by CIA agents in secret detention. The Committees advised the Macedonian government to undertake a new and thorough investigation and the Human Rights Committee recommended that it should consider awarding him compensation’. Human Rights Committee, Ninety-second session, Consideration of Reports Submitted By States Parties Under Article 40 of the Covenant: Concluding Observations Of The Human Committee: The Former Yugoslav Republic Of Macedonia, 17 April 2008, available at www.icj.org/IMG/HRC_Macedonia.pdf (last visited 15 October 2008).
53 When these individuals took proceedings in US courts challenging the lawfulness of their transfer and detention, it was at first held that the Military Commission Act prevented them from raising any claim in a US court, until this was overturned by the Supreme Court's June 2008 judgment.
54 Wilmer Hale, ‘Guantanamo claims before EU Court of Human Rights’, 14 March 2008, available at www.haledorr.com/about/news/newsDetail.aspx?news=1134 (last visited 15 October 2008). For the third-party intervention by INTERIGHTS and the ICJ, see www.interights.org. Boumidiene and Others v. Bosnia and Herzogovina, Applications nos. 38703/06 et al, decided 18 November 2008. One of the questions arising was the nature and content of a state's ongoing obligations following transfer of an individual to a situation where there is a real risk of serious human rights violations. However, the Court found the case manifestly ill-founded and inadmissible on the grounds that, on the facts, Bosnia and Herzegovina was taking all possible steps to the present date to protect the basic rights of the applicants.
55 See Applications 38703/06 et al, supra n.54, para 67.
56 See, e.g., Daniel Auma, ‘US rendition on trial in Africa’, Spero News, 25 September 2007, available at www.speroforum.com/site/article.asp?id=11196 (last visited 15 October 2008); see also Human Rights Watch, ‘Why Am I Still Here?’: The Horn of Africa Renditions and the Fate of the Missing, September 2008, available at http://hrw.org/reports/2008/eastafrica1008/ (last visited 15 October 2008). A case on rendition of Kenyan nationals, for instance, is at the time of writing, before Kenyan courts.
57 European Court of Justice, Organisation des Modjahedines du peuple d'Iran v. Council of the European Union, United Kingdom of Great Britain and Northern Ireland, Case T·228/02, Judgment of The Court of First Instance (Second Chamber), 12 December 2006.
58 Kadi and Yusef were unsuccessful in challenges at first instance: European Court of Justice, Case T·306/01 Yusuf and Al Barakaat International Foundation v. Council and Commission,  ECR II-3533, 21 September 2005, para. 73 (Yusuf); and Case T·315/01, Kadi v. Council and Commission,  ECR II-3649, 21 September 2005 (Kadi). However, the challenges were won on appeal: Cases C-402/05 P and C-415/05 P, Judgment of Grand Chamber on 3 September 2008, available at http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-402/05 (last visited 15 October 2008). OMIC case distinguished them because they involved the direct imposition of Security Council resolutions.
59 England and Wales Court of Appeal, Secretary of State for the Home Department v. Lord Alton of Liverpool and Others,  EWCA Civ 443, Judgment of 7 May 2008.
60 ECtHR, Kusama Yazedovna Maskhadova and Others v. Russia, Application No. 18071/05, Decision as to Admissibility, 8 July 2008. INTERIGHTS represents the applicants, the family of deceased Chechen leader Aslan Maskhadov. The case has been declared admissible. INTERIGHTS, Maskhadov Press Release, 1 October 2007, available at www.interights.org/view-document/index.htm?id=209 (last visited 15 October 2008).
61 Federal Court of Australia, Haneef v. Minister for Immigration and Citizenship,  FCA 1273, 21 August 2007.
62 The government cites the decision of the Supreme Court of Botswana, the highest judicial authority in Botswana, in Kenneth Good v. Attorney General, Civil Appeal No. 28/2005. An application to the African Commission on Human and Peoples' Rights was submitted by Interights on 10 October 2007 and was pending at the time of writing. The brief for the applicant is obtainable from www.interights.org.
63 ‘Bin Laden Driver Sentenced to a Short Term’, William Glaberson, New York Times, 8 August 2008.
64 Abbasi case, above note 2.
65 See, e.g., the Al-Skeini case, above note 26, in which the UK government shifted its position as regards the applicability of the ECHR to individuals detained by UK officials in Iraq and allegedly tortured in detention.
66 This works both ways and can also weaken or confuse the framework of rights protection, as is suggested may have been the outcome of the Al-Skeini case, for example.
67 R (Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs,  UKHRR 76, where the English Court of Appeal criticized the system of Guantanamo detentions in unusually strident terms.
68 Aston, John, ‘Lawyers in Basra death case win access to files’, Independent, 4 October 2007.
69 See, e.g., US District Court for the Southern District of New York, Associated Press v. United States Department of Defense, 498 F. Supp. 2d 707 (SDNY, 2007), and US Court of Appeals, DC Circuit, Center for National Security Studies v. Dep't of Justice, 331 F.3d 918 (DC Cir. 2003) (cert denied, 540 US 1104 (2004)).
70 Supreme Court of Canada, Canada (Justice) v. Khadr, 2008 SCC 28, 23 May 2008. On 23 May 2008, the Canadian Supreme Court ruled that the government had violated Canada's Constitution and its international human rights obligations by transmitting to US official information resulting from Canadian officials' interviews of Omar Kadhr at the Guantánamo Bay detention centre. The Court took the unusual step of ordering Canadian officials to allow Mr Kadhr access to records of his interrogations with Canadian agents, for use in preparing his defence before the Guantánamo Military Commission.
71 Amicus interventions appeared from such diverse quarters as British Lords as well as Israeli military lawyers.
72 Dame Mary Arden has stated that ‘the decision in the A case should not be misinterpreted as a transfer of power from the executive to the judiciary. The position is that the judiciary now has the important task of reviewing executive action against the benchmark of human rights. Thus, the transfer of power is not to the judiciary but to the individual’. (2005) 121 LQR at pp. 623–4, in Smith, A. T. H., ‘Balancing liberty and security? A legal analysis of United Kingdom anti-terrorist legislation’, European Journal on Criminal Policy and Research, 13 (2007), pp. 73–83, DOI 10.1007/s10610-007-9035-6.
* An early version of this paper was delivered as the Annual Public Lecture in International Law at the School of Law, London School of Economics, 11 October 2007. The author is very grateful to Silvia Borelli for research assistance and to Steven Watt, David Geer and Fabricio Guariglia for their helpful comments in the preparation of that speech. This article reflects the author's views only and not those of INTERIGHTS.
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