POST WRITTEN BY: Paola Bettelli (’15), Pace Law School

Forty -six detainees are still being held indefinitely in Guantánamo Bay. They are being held there despite that in Boumediene v. Bush, 128 S.Ct. 2229 (2008), the United States Supreme Court decided that Guantánamo detainees had the right to petition habeas corpus under the U.S. Constitution. In Boumediene, the Court held that the Military Commissions Act of 2006, which stripped jurisdiction from federal courts to hear habeas petitions, is unconstitutional. 128 S. Ct. 2229, 2240 (2008).

Under the Hague Conventions, the Geneva Conventions and the 1977 Protocols, which set the basis for international humanitarian law in the context of armed conflict, detentions of prisoners of war and unprivileged enemy combatants are permissible for a limited period of time after which a judicial determination has to be made regarding their status. In addition to this, Article 75 of Additional Protocol I (AP I) to the Geneva Conventions recognizes fundamental guarantees for persons who are detained by a Party and who do not benefit from more favorable treatment under the Conventions or this Protocol. Article 75 provides that, except for arrest or detention of penal offences, detainees

shall be released with the minimum delay possible and, in any event, as soon as the circumstances justifying arrest, detention or internment have ceased to exist.

While the United States is not a party to Additional Protocol I to the Geneva Conventions, in Hamdan v. Rumsfeld, the plurality acknowledged that Article 75 had hardened into customary international law. Hamdan v. Rumsfeld, 548 U.S. 557, 634 (2006).

Under human rights law, Articles 3, 8 and 9 of the Universal Declaration of Human Rights state that: 1) everyone has the right to life, liberty and security of person; 2) everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or the law and; 3) no one shall be subjected to arbitrary arrest, detention or exile. Moreover, Article 9 of the International Covenant on Civil and Political Rights (ICCPR) provides that

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Therefore, under both international humanitarian law and human rights law, indefinite detention is banned. Consistent with this, in Boumediene, the Court concluded that the

privilege of habeas corpus entitles a prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law,

128 S. Ct. 2229, 2266 (2008). With this holding, the Court implicitly recognized that petitioners were protected under the set of non-derogable rights of common Article 3 of the Geneva Conventions and of Article 75 of Additional Protocol I. A ban on arbitrary detention is also reflected in Article 9 of the ICCPR and section 702 of the Restatement (Third) of Foreign Relations, which expressly prohibits “prolonged arbitrary detention.”

Since the U.S. Supreme Court’s decision in Boumediene is consistent with principles contained both in international humanitarian law and in international human rights law, it is fair to say that court decisions after Boumediene, are bound by these sets of principles. However, despite the promises of Boumediene, subsequent decisions by U.S. federal courts have undermined its holding. After Boumediene, U.S. courts have said that their jurisdiction does not extend to military bases in Afghanistan (Maqelah v. Gates, 605 F.3d 84 (D.C.Cir. 2010)), that preponderance of the evidence is a sufficient standard of proof for indefinite detention (Bensayah v. Obama, 610 F.3d 718 (D.C.Cir. 2010)), and that extradition of detainees to places where torture is customarily practiced is acceptable (Munaf v. Geren, 553 U.S. 674 (2008)). These rulings run counter to the spirit of Boumediene where the court held that

petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force in extraordinary times

128 S.Ct. 2229, 2277 (2008). These post-Boumediene court rulings also contradict the principles and norms of international humanitarian law and of international human rights law because they infringe upon the set of non-derogable rights under Article 75 AP I, which are reflected in Article 9 of the ICCPR. Furthermore, the United Nations Special Rapporteur on Torture has said that the practice of indefinite detention can amount to torture. He stated that

torture is unacceptable and abhorrent from a moral and legal perspective, and that its prohibition is absolute and non-derogable.

Arguably, the forty-six detainees which are currently being held indefinitely at Guantánamo are being subject to an abhorrent form or torture that is unacceptable and a blatant infringement of international law.

Related Readings:

• Kevin Liptak, U.S. Releases Names of Indefinite Detainees at Guantánamo, CNN, June 17, 2013.
• Boumediene v. Bush, SCOTUSBlog.
• Boumediene v. Bush, 128 S.Ct. 2229 (2008).
• Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
• Maqelah v. Gates, 605 F.3d 84 (D.C.Cir. 2010).
• Statement of the United Nations Special Rapporteur on Torture at the Expert Meeting on the Situation of Detainees, held at the U.S. Naval Base at Guantánamo Bay, Inter-American Commission on Human Rights, Oct. 3, 2013.