In an important ruling, three senior British judges have strongly criticised the US administration’s detention of suspected terrorists in Guantanamo Bay, arguing that they are being held "in apparent contravention of fundamental principles of law".

The comments came in a decision from the Court of Appeal that was released on November 6. The judges were ruling on a case brought by relatives of Feroz Abbasi, a British citizen who is one of the detainees. Abbasi’s relatives hoped to force the British government to make representations to the United States on his behalf.

In its ruling, the Court of Appeal denied the suit, on the grounds that it would be inappropriate to order the Foreign Secretary to take a step that would have an impact on British foreign policy "at a particularly delicate time". However, the judges made clear in their ruling that they regarded US policy on the detainees with deep concern.

The judges wrote that it seemed legally objectionable that Abbasi "should be subject to indefinite detention in territory over which the United States has exclusive control, with no opportunity to challenge the legitimacy of his detention before any court or tribunal."

The US administration maintains that the detainees are enemy combatants, who may be held without charge until the end of hostilities – which, it argues, means until the war against terrorism is over. The administration has opposed habeas corpus petitions on behalf of the detainees, which would require the legality of their detention to be tested in court, on the grounds that they are outside US jurisdiction (because Guantanamo Bay is not US territory, but has been held on lease from Cuba since 1903).

However the English Court of Appeal said it found "surprising" the proposition that "the writ of the United States court does not run in respect of individuals held by the government on territory that the United States holds as lessee under a long term treaty."

In their ruling, the judges refer to the principle of habeas corpus as a cornerstone of the legal traditions of Britain and the United States. They also quote the International Covenant of Civil and Political Rights (to which both the US and the UK are parties), which says that "anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that a court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."

On these grounds, the judges argued that US policy was "in apparent contravention of fundamental principles recognised by both jurisdictions and by international law", and that the Camp Delta inmates were being "arbitrarily detained in a ‘legal black hole’".

The Court of Appeal is the most senior court in England below the House of Lords, and the presiding judge in this case was the Master of the Rolls, Lord Phillips, who is the most senior judge in the Court of Appeal.

In their ruling, the judges also noted that the United States Supreme Court is likely at some point to consider whether the detainees in Guantanamo Bay are entitled to the right of habeas corpus. One lawyer involved in the British case said, about the judges’ ruling, that "it would be hard to think of a stronger signal to the courts in the United States to get their act together."

Related chapters from Crimes of War: What the Public Should Know:

Combatant Status
Prisoners of War, Non-Repatriation of
Soldiers, Rights of

Related Links

Judges anxious for Camp Delta inmate
By Jamie Wilson
The Guardian , November 7, 2002

Ruling in the Abbasi case
England and Wales Court of Appeal (Civil Division)
November 6, 2002

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