Terrorism - Hot Topics 58 - Legal Information Access Centre

HOT TipHabeas corpus wasoriginally a writ to havea person producedbefore the court as away of reviewing unfairdetention by anothercourt. the words comefrom Latin meaning “youshould have the body”,from the first few wordsof the writ.Despite the US amending themilitary commissions after theSupreme Court’s decision in theHamdan case, it is likely thatthe new commission procedureswill also be challenged in thecourts – thus leading to evenfurther delays for those detainedat Guantanamo, some of whomhave been detained without trialfor five years.While the US government claimed there was a gapin humanitarian law with respect to terrorists, it isclear that the existing law is adequate to deal withterrorists. In fact, humanitarian law contains a numberof express prohibitions on terrorism, including spreadingterror among civilian populations. In the Galic case 10 ,the International Tribunal for the former Yugoslaviaconvicted a Serbian general of spreading terror amongstthe civilians of Sarajevo, by waging a campaign of snipingand shelling of civilians which was intended to put themin extreme fear. Humanitarian law also contains manyother provisions which prohibit terrorist activities, suchas deliberate attacks on civilians.image u navailableCase sTuDyHamDan Case – see Hamdan v Rumsfeld(June 2006) us supreme Courthamdan was a citizen of Yemen who was captured duringthe conflict in afghanistan in 2001 and later detained bythe united states at guantanamo Bay, cuba. us presidentBush decided that hamdan was eligible to be prosecuted inan irregular ‘military commission’ and hamdan was charged(after two years in detention) with unusual ‘conspiracy’offences. hamdan challenged his detention and trial inthe us courts. initially, the District court found that hisdetention was unlawful because the president’s authorityto establish military commissions only allowed theprosecution of ‘law of war’ offences, and because hamdanwas entitled to protection as a prisoner of war (poW)under the third geneva convention of 1949, at least untilit was determined by such law that he was not a poW. theDistrict court ordered his release from unlawful detentionand suspended his military commission trial. its decisionwas reversed by a us federal appeals court (the Dccircuit), which found that the geneva convention was notjudicially enforceable in us domestic courts. the highestus court, the supreme court, later reversed the appealscourt’s judgment. a majority of judges found that themilitary commission violated the us’s own Uniform Codeof Military Justice and the geneva conventions, and werenot expressly authorised by statute. the court found thatcommon article 3 of the geneva conventions applied to thearmed conflict in which hamdan was captured (which wascharacterised, at a minimum, as a non-international armedconflict at the time of his capture). article 3 lays downminimum requirements for criminal prosecutions whichwere not met by the us military commissions, including‘judicial guarantees which are recognised as indispensableby civilised peoples’. the military commission proceduresdid not meet these fair trial standards because it did notensure that an accused would be present for his or hertrial and have access to the evidence against him or her.(the court did not determine whether the procedures wereincompatible with other aspects of the right to a fair trialin article 3.) Four judges also found that the conspiracycharges laid against hamdan were unknown to the lawof war and could not be lawfully prosecuted by militarycommissions (as opposed to, for example, traditional courtmartial).Hamdan v Rumsfeld (2006) No 05-184 available at www.law.cornell.edu/supct/html/03-6696.ZS.htmlLt Col Steven Jordan, former head of the interrogationcentre at Abu Ghraib prison in Iraq, with his legalcounsel, arriving at military court, 20 October 2006,Fort George G Meade, Maryland.Steve Ruark.TOrTure anD ‘exTraOrDinaryrenDiTiOn’Even before 2001, Amnesty International estimated thattorture was used by 120 governments, despite tortureand cruel, inhuman or degrading treatment beingprohibited and criminalised under international law.The Convention Against Torture 1984 defines torture asany act by a public official which causes severe pain or10. The Prosecutor v Stanislav Galic – Case No. IT-98-29-T (2003), available at http://www.un.org/icty/Supplement/supp46-e/index.htmterrorism and international Law 11