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

International Review of the Red Cross

Volumn 87, Issue 857, 2005, Pages 39-68

  Borelli, Silvia ^a  

^a UNIVERSITY OF MILAN   (Italy)

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EID: 84871133846     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383100181184     Document Type: Article

References (205)

1. E.g. the strike by an unmanned aircraft in Yemen which killed six suspected terrorists: J. Risen and J. Miller, “U.S. is reported to kill al Qaeda leader in Yemen”, New York Times, 5 November 2002.
2. It seems that Yemen had given its prior consent to this action and was cooperating with it, although reports were nuanced: see e.g. W. Pincus, “Missile strike carried out with Yemeni cooperation”, Washington Post, 6 November 2002.
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)
4. 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)
5. 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).
6. 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)
7. European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, ETS No. 5 (hereinafter ECHR)
8. American Convention of Human Rights, San José, 22 November 1969, OAS Treaty Series, No. 36 (hereinafter ACHR)
9. 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).
10. International Committee of the Red Cross, “ICRC reactions to the Schlesinger Panel Report”, 8 September 2004, para. I (A), available at (last visited 10 February 2005).
11. 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 Guantánamo 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’”.
12. See also Johan Steyn, “Guantánamo Bay: The legal black hole” (the 27th FA Mann Lecture, 25 November 2003)
13. reprinted in International and Comparative Law Quarterly, Vol. 53, 2004, p. 1.
14. For a more detailed examination of substantive guarantees, see S. Borelli, “The treatment of terrorist suspects captured abroad: Human rights and humanitarian law” in A. Bianchi (ed.), Enforcing International Law Norms against International Terrorism, Hart Publishing, Oxford, 2004, p. 39.
15. “Final report of the independent panel to review DoD detention operations”, 24 August 2004, available at , p. 11 (last visited 10 February 2005).
16. See Amnesty International, Report 2004, “United States of America”, available at
17. see also Human Rights First, “Ending secret detentions”, June 2004, pp. 3–4 available at , (last visited 10 February 2005), listing a large number of disclosed and suspected facilities both in Afghanistan and elsewhere.
18. A recent report from an independent human rights organization stated that, in addition to the notorious situation of detentions at Guantanamo 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. 4.
19. See “Press briefing by White House Counsel Judge Alberto Gonzales …” Office of the Press Secretary of the White House, 22 June 2004, available at (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 Guantanamo Bay.
20. See B. Graham, “Offensives create surge of detainees”, Washington Post, 27 November 2004.
21. See “Remarks by the President from the USS Abraham Lincoln…” 1 May 2003, available at (last visited 10 February 2005).
22. See Human Rights Watch, “Iraq: Background on US detention facilities in Iraq”, 7 May 2004, available at . 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”.
23. See also Human Rights First, “Ending secret detentions”, “Iraq: Background on US detention facilities in Iraq”.
24. 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 G.W. Bush, “State of the Union Address”, 28 January 2003, available at (last visited 10 February 2005).
25. 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 J. Barry, M. Hirsh and M. Isikoff, “The roots of torture”, Newsweek, 24 May 2004
26. D. Priest and J. Stephens, “Secret world of US interrogation: Long history of tactics in overseas prisons is coming to light”, Washington Post, 11 May 2004.
27. See also D. Priest and S. Higham “At Guantanamo, a prison within a prison”, Washington Post, 17 December 2004: “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 Guantanamo Bay.
28. See e.g. D. Priest, “Top justice aide approved sending suspect to Syria”, Washington Post, 19 November 2003, 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.
29. See D. Priest and B. Gellman, “US decries abuse but defends interrogations: Stress and duress tactics used on terrorism suspects held in secret overseas facilities”, Washington Post, 26 December 2002
30. see also Amnesty International, Washington Post.
31. These countries include e.g. Egypt, Syria, Jordan, Saudi Arabia and Morocco. See R. Chandrasekaran and P. Finn, “US behind secret transfer of terror suspects”, Washington Post, 11 March 2002.
32. See e.g. C. Whitlock, “A secret deportation of terror suspects”, Washington Post, 25 July 2004, 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.
33. See also D. van Natta and S. Mekhennet, “German's claim of kidnapping brings investigation of US link”, New York Times, 9 January 2005, 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.
34. See Human Rights Watch, New York Times.
35. See also Priest and Higham, New York Times.
36. 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, New York Times. (note 16) (quoting an administration official).
37. 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 (New York Times.).
38. 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 J. Risen, D. Johnston and N.A. Lewis, “Harsh CIA methods cited in top al Qaeda interrogations”, New York Times, 13 May 2004.
39. 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. J. Fitzpatrick, “Jurisdiction of military commissions and the ambiguous war on terrorism”, American Journal of International Law, Vol. 96, 2002, p. 345, in particular pp. 346–350
40. C. D. Greenwood, “International law and the ‘war against terrorism’”, International Affairs, Vol. 78, 2002, p. 301
41. G. Abi-Saab, “Introduction: The proper role of international law in combating terrorism” in A. Bianchi (ed.), Enforcing International Law Norms Against International Terrorism, Hart Publishing, Oxford, 2004, p. xiii.
42. 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 C.D. Greenwood, “The concept of war in modern international law”, International and Comparative Law Quarterly, Vol. 36, 1987, p. 283.
43. 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, International and Comparative Law Quarterly.
44. G. Abi-Saab, International and Comparative Law Quarterly. (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…”.
45. See also A. Cassese “Terrorism is also disrupting some crucial legal categories of international law ”, European Journal of International Law, Vol. 12, 2001, p. 993.
46. In relation to the conflict in Afghanistan, see Borelli, European Journal of International Law. (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
47. see A. Roberts, “Counter-terrorism, armed force and the laws of war”, Survival, Vol. 44, 2002, p. 7.
48. On that concept see H-P. Gasser, “Internationalized non-international armed conflicts: Case studies of Afghanistan, Kampuchea and Lebanon”, American University Law Review, Vol. 33, No. 1, Fall 1983, pp. 145–61
49. J.G. Stewart, “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. 313.
50. Compare C.D. Greenwood, “The law of war (international humanitarian law), in M.D. Evans (ed.) International Law, Oxford University Press, Oxford, 2003, p. 793, who speaks of “an underground terrorist movement whose recourse to violence is criminal”.
51. 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 International Law. (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)).
52. 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.
53. George W. Bush, Memorandum on ‘Humane treatment of Taliban and al-Qaeda detainees’, 7 February 2002, para. 2(b); available at .
54. ‘Humane treatment of Taliban and al-Qaeda detainees’., para. 2 (d).
55. ‘Humane treatment of Taliban and al-Qaeda detainees’, para. 2 (a).
56. ‘Humane treatment of Taliban and al-Qaeda detainees’, para. 2 (d).
57. 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 .
58. 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
59. US Navy, Commander's Handbook of the Law of Naval Operations, NWP 1–14M, paragraph 12.7.1.
60. Secretary of Defense, News Briefing, 11 January 2002, available at . (last visited 10 February 2005).
61. See e.g. Press briefing by Gonzales, Haynes, Dell'Orto and Alexander, 22 June 2004, available at (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” (News Briefing.).
62. 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 .
63. 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 . (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.
64. See Senate Judiciary Committee confirmation hearing on the nomination of Alberto R. Gonzales to be Attorney-General, 6 January 2005, transcript available at (last visited 10 February 2005).
65. For earlier reports of application of the policy, see D. Jehl, “Prisoners: US action bars right of some captured in Iraq”, New York Times, 26 October 2004
66. D. Priest, “Memo lets CIA take detainees out of Iraq”, Washington Post, 23 October 2004, reporting that “as many as a dozen detainees [had been transferred] out of Iraq in the last six months”.
67. O. Uhler and H. Coursier (eds.), Geneva Convention relative to the Protection of Civilian Persons in Time of War: Commentary, ICRC, Geneva, 1950, Commentary to Art. 4, p. 51.
68. 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”; A. Fleischer, “Special White House announcement re: Application of Geneva Conventions in Afghanistan”, 7 February 2002.
69. See also “White House Fact Sheet: Status of detainees at Guantanamo”, 7 February 2002, both available at (last visited 10 February 2005).
70. For criticism, see G.H. Aldrich, “The Taliban, al Qaeda, and the determination of illegal combatants”, American Journal of International Law, Vol. 96, 2002, p. 894
71. or see R. Wedgwood, “Al Qaeda, terrorism, and military commissions”, American Journal of International Law., p. 335, arguing that “these ‘material characteristics’ [listed in Art. 4Ab] are prerequisite to even qualifying as ‘armed forces’ and ‘regular armed forces’”.
72. 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, American Journal of International Law. (note 44), p. 895.
73. See also R.K. Goldman and B.D. Tittemore, “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 2002; available at (last visited 10 February 2005), pp. 8–14
74. or see Wedgwood, ASIL Task Force on Terrorism Paper. (note 44), p. 335.
75. 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”
76. see “Order Establishing Combatant Status Review Tribunals”, 7 July 2004, available at (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 ), pp. 17–19.
77. To this effect, see the decision in Hamdan v. Rumsfeld, “Order Establishing Combatant Status Review Tribunals”. (note 46).
78. See, in general, R. Baxter, “So-called ‘unprivileged belligerency’: Spies, guerrillas and saboteurs”, British Yearbook of International Law, Vol. 28, 1951, p. 323
79. see also K. Dörmann, “The legal situation of ‘unlawful/unprivileged combatants’”, International Review of the Red Cross, Vol. 85, 2003, p. 45.
80. See e.g. Goldman and Tittemore, International Review of the Red Cross. (note 45), pp. 4–5.
81. 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 H.-P. Gasser, “Protection of the civilian population”, in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflict, Oxford University Press, Oxford, 1999, p. 209, at 252–254.
82. On this point see Dormann, The Handbook of Humanitarian Law in Armed Conflict. (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 of its citizens who were detained at Guantanamo 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.
83. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1986, p. 114, para. 218.
84. 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 M. J. Matheson, “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., in particular pp. 420 and 427
85. more recently, see W.H. Taft 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. 321–322.
86. See Yale Journal of International Law. (note 77).
87. 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.
88. See “Additional response of the United States to request for precautionary measures on behalf of the detainees in Guantanamo Bay”, 15 July 2002, in relation to applicability during armed conflict
89. 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.
90. See e.g. the written answers provided by Mr. Straw on 17 May 2004, 421 HC Deb. (2003–2004), col. 674w-675w
91. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996(I), p. 240, para. 25.
92. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004 (hereinafter “The Wall”), para. 106.
93. Coard, “The Wall”. (note 58), para. 35.
94. “The Wall”., 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.
95. 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
96. IACHR, Third Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.102 doc. 9 rev. 1, 26 February 1999.
97. 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. CCPR/C/21/Rev. 1/Add.l 1 (2001), para. 3
98. 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.l3 (2004), para. 11.
99. The vast majority of these rights are effectively paralleled by the minimum standards of IHL. See e.g. Borelli, Nature of the General Legal Obligation on States Parties to the Covenant. (note 7).
100. Nuclear Weapons, Nature of the General Legal Obligation on States Parties to the Covenant. (note 62), p. 240, para. 25.
101. See also The Wall, Nature of the General Legal Obligation on States Parties to the Covenant. (note 63), para. 106
102. Coard, Nature of the General Legal Obligation on States Parties to the Covenant. (note 58), para. 39
103. Human Rights Committee, General Comment No. 29, Nature of the General Legal Obligation on States Parties to the Covenant. (note 66), para. 3.
104. For instance, the right to an independent and impartial tribunal and the presumption of innocence. See Human Rights Committee, General Comment No. 29, Nature of the General Legal Obligation on States Parties to the Covenant. (note 66), para. 16
105. 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)
106. 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).
107. 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, Judicial Guarantees in States of Emergency. (note 66), para. 10
108. The Wall, Judicial Guarantees in States of Emergency. (note 63), paras. 108–113, in particular para. 109.
109. See, in general, P. de Sena, La nozione di giurisdizione statale nei trattati sui diritti dell'uomo, Giappichelli, Turin, 2002.
110. 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. 8.
111. Coard, European Human Rights Reports. (note 58), para. 37.
112. 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
113. Cyprus v. Turkey, Merits, ECHR Reports 2001-IV, para. 77
114. Bankovicv. Belgium and 16 Other Contracting States, Decision on Admissibility, ECHR Reports 2001-XII, para. 59
115. Ilaşcu v. Moldova and Russia, Judgment of 8 July 2004, para. 314.
116. See most recently the decision of the Court in Issa v. Turkey, Merits, Judgment of 16 November 2004.
117. 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”
118. UN Doc. CCPR/C/79/Add 50 (1995), para. 19. See also General Comment No. 31, Committee on the Report of the United States. (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).
119. 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”.
120. Tlie Wall, Martens Nouveau. (note 63), para. Ill, in relation to the ICCPR.
121. See also Martens Nouveau., para. 112, in relation to the International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966
122. UNTS, Vol. 993, 3), and para. 113 in relation to the Convention on the Rights of the Child, New York, 20 November 1989
123. UNTS, Vol. 1577, 44.
124. Loizidou Merits, UNTS. (note 76), para. 52
125. citing Loizidou v. Turkey, Preliminary Objections, ECHR Series A, No. 310 (1995), para. 62).
126. ECHR., para. 56 (emphasis added).
127. llaşcu, ECHR. (note 76), para. 316
128. referring to the passage from Cyprus v. Turkey, ECHR. (note 76), quoted below in note 84).
129. Compare, however, the apparently more restrictive approach taken by the Court in Bankovic, ECHR. (note 76), para. 71.
130. See e.g. Cyprus v. Turkey, Merits, ECHR. (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)
131. ECHR., paras. 131–136.
132. Inter-American Commission on Human Rights, Precautionary Measures in Guantánamo Bay, 12 May 2002, ILM, Vol. 41 (2002), 532.
133. See e.g. Precautionary Measures in Guantánamo Bay, Precautionary Measures in Guantánamo Bay. (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”
134. Precautionary Measures in Guantánamo Bay., fn. 7.
135. 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).
136. Bankovic, ECHR. (note 76).
137. ECHR., para. 79.
138. ECHR., para. 80 (emphasis in original).
139. ECHR., para. 80.
140. Issa Merits, ECHR. (note 76).
141. 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 (ECHR., para. 75)
142. it was not satisfied to the required standard of proof that Turkish troops had conducted operations in the area in question (ECHR., para. 81).
143. ECHR., para. 74.
144. Lopez Burgos v. Uruguay (Comm. No. 52/1979), UN Doc. CCPR/C/13/D/52/1979 (1981), para. 12.3
145. 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”
146. see Lopez Burgos, para. 12.2
147. Celiberti de Casariego, para. 10.2.
148. Stocké v. Federal Republic of Germany, ECHR Series A, No. 199, Opinion of the European Commission, p. 24, para. 166.
149. 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.
150. Note however, the decision of the English Court of Appeal in Al Skeini, Merits. (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.
151. Ilascu and Others v. Moldova and Russia, judgment of 4 July 2004, para. 317
152. citing Soering v. United Kingdom Series A, No. 161 (1989), paras. 88–91).
153. See Soering, judgment. (note 102), para. 88
154. Cruz Varus v. Sweden, Merits, ECHR Series A, No. 201 (1991), paras. 75–76
155. see also Vilvarajah and Others v. United Kingdom, ECHR Series A, No. 215 (1991), paras. 107–108, 111.
156. See, in general, G. Gilbert, Aspects of Extradition Law, Kluwer, Dordrecht, 1991, pp. 79–90
157. C. Van den Wyngaert, “Applying the European Convention of Human Rights to extradition: Opening Pandora's box?” International and Comparative Law Quarterly, Vol. 39, 1990, p. 757
158. C.J.R. Dugard and C. Van den Wyngaert, “Reconciling extradition with human rights”, American Journal of International Law, Vol. 92, 1998, p. 187
159. S. Borelli, “The rendition of terrorist suspects to the United States: Human rights and the limits of international cooperation”, in A. Bianchi (ed.), Enforcing International Law Norms Against International Terrorism, Hart Publishing, Oxford, 2004, p. 331.
160. Kindlerv. Canada (Comm. No. 470/1991), UN Doc. CCPR/C/48/D/470/1991 (1993), para. 6.2.
161. 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, U.N. Doc. A/49/44 (1994)
162. Khan v. Canada (Comm. No. 15/1994), Report of the Committee against Torture, U.N. 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]”
163. 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
164. see D. v. United Kingdom, ECHR Reports 1997-IH. The Human Rights Committee has also expanded the prohibition to cover some situations involving the death penalty
165. see e.g. Ng v. Canada (Comm. No. 469/1991), UN Doc. CCPR/C/49/D/469/1991 (1993)
166. but also Kindler v. Canada, UN Doc. CCPR/C/49/D/469/1991.
167. See Soering, UN Doc. CCPR/C/49/D/469/1991, 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”.
168. See e.g. the European Commission of Human Rights in Dehwariv. Netherlands, Report of the Commission of 29 October 1998, European Human Rights Reports, Vol. 29 (2000), 74, para. 61
169. 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).
170. In the European system, this is now an absolute prohibition: see Protocols 6 and 13 and Öcalan Merits, European Human Rights Reports. (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
171. see e.g. the decision of the Human Rights Committee in Ngv. Canada, European Human Rights Reports. (note 105).
172. The principle originates in Article 33 of the Convention relating to the Status of Refugees, Geneva, 28 July 1951, UNTS, Vol. 189, p. 150.
173. See e.g. Article 3 of the CAT; Art. 33 of the Refugee Convention, UNTS. (note 109).
174. See e.g. Soering, UNTS. (note 102), paras. 88–91
175. Ngv. Canada, UNTS. (note 105).
176. Human Rights Committee, General Comment No. 31, UNTS. (note 66), para. 12.
177. See e.g. De Sena, La nozione di giurisdizione statale nei trattati sui diritti dell'uomo, UNTS. (note 73), pp. 24–30.
178. See e.g. Cruz Varas, UNTS. (note 103), para. 70.
179. 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”
180. Ahmedv. Austria, Merits, ECHR Reports., para. 41.
181. 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).
182. See also: Mutombo v. Switzerland, UN Doc. A/53/44., para. 10
183. Korban v. Sweden (Comm. No. 88/1997), UN Doc. CAT/C/21/D/88/1997 (1998), para. 7.
184. See also Human Rights Committee, General Comment No. 31, UN Doc. CAT/C/21/D/88/1997, para. 12 (quoted above, note 112).
185. United Kingdom, “Responses to list of issues”, p. 22, available at (last visited 10 February 2005).
186. 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, “Responses to list of issues”., pp. 24–25.
187. “Conclusions and recommendations of the Committee against Torture: United Kingdom”, UN Doc. CAT/C/CR/33/3, 25 November 2004, para. 4(b).
188. “Conclusions and recommendations of the Committee against Torture: United Kingdom”, para. 5(e).
189. Hamdan v. Rumsfeld, “Conclusions and recommendations of the Committee against Torture: United Kingdom”. (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.
190. “Conclusions and recommendations of the Committee against Torture: United Kingdom”., p. 15.
191. “Conclusions and recommendations of the Committee against Torture: United Kingdom”., p. 18.
192. Inter-American Commission on Human Rights, Precautionary Measures in Guantdnamo Bay, “Conclusions and recommendations of the Committee against Torture: United Kingdom”.
193. [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).
194. EWHC., paras. 117–222.
195. EWHC., para. 286.
196. EWHC., para. 281.
197. 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.
198. 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.
199. 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 Guantanamo” (at 1289–1290).
200. The decision was amended in the light of the Supreme Court's decision in Rasul and in Rumsfeld v. Padilla (124 S. Ct. 2711)
201. see 374 F.3d 727 (9th Cir. Cal. 2004).
202. Rasul v. Bush; Al Odah v. United States, 124 S Ct. 2686 (28 June 2004).
203. Precautionary Measures in Guanténamo Bay, S Ct. (note 85).
204. S Ct., pp. 1–2.
205. S Ct., p. 19.