First step in taking Guantanamo detainees out of legal black hole

“The US Supreme Court has taken the first step in closing the legal black hole in which the US Government is holding prisoners in Guantanamo Bay”, said Nicholas Howen, Secretary General of the ICJ.

He welcomed today’s judgment by the Supreme Court of the United States. “The second step is for the courts now swiftly to decide whether or not the prisoners are being held legally – or should be released,” he added.

In the Rasul case, the US Supreme Court decided today that detainees at the US Naval Base at Guantanamo Bay in Cuba have a right to have their detention reviewed by US courts. The US administration had tried to avoid its obligations under international law, arguing that foreigners who are not held on US shores have no access to US courts. “The Supreme Court judges have recognized that there cannot be a legal vacuum. Every detainee held by the US must be able to access the US courts,” said Nicholas Howen.
Five of the nine judges decided that because the US exercises “complete jurisdiction and control” over Guantanamo Bay naval base under a long term lease with Cuba, everyone held there, whether a US-citizen or not, has a right to habeas corpus.

“While it is unfortunate that the Court did not refer to the United States’ obligations under international law, the judges have strongly reaffirmed a fundamental protection under US and international law,” said Nicholas Howen. “It would be too easy for states simply to deport detainees out of their sovereign territory to avoid oversight by the courts,” he added, “but international law guards against such loopholes”.

The detainees can now ask the US courts to review the procedural and substantive legality of their detention. Any hearings must comply with minimum standards of impartiality and fairness and the detainees should have access to counsel to effectively defend their rights. “The courts should take international law into account when they decide the legal status of the detainees” said Nicholas Howen, “and they should reject the concept of ‘enemy combatants’, which is unknown to international law.”

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