Amicus Curiae Brief — Al Odah v. United States

rs (iC) Mee ae |

Nos. 03-334, 03-343 OCT 3 2003

OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

2-oo)

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al..

Petitioners,

—and—

SHAFIQ RASUL, ef ail.,

Petitioners,

—_—V.—

UNITED STATES, et al.,

Respondents,

—and—

GEORGE W. BUSH, ef al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICUS CURIAE OF THE HUMAN RIGHTS

INSTITUTE OF THE INTERNATIONAL BAR ASSOCIATION

IN SUPPORT OF PETITIONERS

Vaughan Lowe Pamela Rogers Chepiga

Guy S. Goodwin-Gill Counsel of Record

ALL SOULS COLLEGE Andrew B. Matheson

UNIVERSITY OF OXFORD Karen Lee

Nathan Reiliy

ALLEN & OVERY

1221 Avenue of the Americas

New York, New York 10020

(212) 610-6300

Attorneys for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHIORITEES ...ccccccsccccccccccces

INTEREST OF THE AMICUS CURIAE.........

NE dnednevecdcnnacesenesoneccsconscecaces:

SUMMARY OF ARGUMENT ....................

IE, dtincbddwecdcudgndepacsasédesccocevceses

I. United States Law Should Comply

with International Human Rights

and Humanitarian Law...................

A. The Rule in Favor of Harmony

with International Law..............

B. Applying Johnson v. Eisentrager

Il. International Human Rights Law

Requires Access to a Court or

Dl iididciunsecaunnneaetoeceveouceoes

A. The United States’ Obligations

Pursuant to Treaty and Customary

International Law ...................

B. The United States’ Obligations

Arise Through Authority and

iidcuibmsidasennesateeseeeene

III. International Law Requires Due

Process During Armed Conflict.........

A. Obligations Under International

Human Rights Law Continue

During Armed Conflict .............

B. International Humanitarian Law

Requires Due Process During

Armed Conflict

CONCLUSION

PAGE

14

14

15

20

ill

TABLE OF AUTHORITIES

United States Cases

Atkins v. Virginia, 536 U.S. 304 (2002) ..........

Beharry v. Ashcroft, 183 F. Supp. 2d 584

(E.D.N.Y.), rev'd on other grounds,

No. 98 CV 5381 (JBW), 2003

U.S. App. LEXIS 8279 (2d Cir.

May 1, 2003) ..........cceecceecececcccececeees

Fernandez v. Wilkinson, 505 F. Supp. 787

(D. Kam. 1960) ........cccccccccccccccccceccees

Johnson v. Eisentrager, 339 U.S. 763 (1950) ....

Lauritzen v. Larsen, 345 U.S. 571 (1953)........

Lawrence v. State, 123 S. Ct. 2472 (2003) .......

McCulloch v. Sociedad Nacional de

Marineros de Honduras, 372 U.S. 10

CODES oc ccccccccccccccccccscccccsccccccccccsccece

Murray v. The Schooner Charming Betsy,

G6 U.S. 64 (1BO4)........ccccccccccccccess meine

Odah v. United States, 321 F.3d 1134

GEE. Cle. BEGB) ..cccvescccccccccccccccccccese:

Trans World Airlines, Inc. v. Franklin

Mint Corp., 446 U.S. 243 (1984) ............

Weinberger v. Rossi, 456 U.S. 25 le

PAGE

7

-

A UA SH eS

iv

PAGE

Foreign Cases

Bankovic v. Belgium and 16 Other

Contracting States, App. No. 52207/99,

12 December 2001, 11 B.H.R.C. 435........ 13

Case Concerning United States Diplomatic

and Consular Staff in Tehran,

(U.S. v. Iran) 1980 I.C.J. 3 (May 24)........ 5

Chaial v. United Kingdom,

App. No. 22414/93,

23 Eur. H.R. Rep. 4132 (1997)............... 15

Coard v. United States, Case 10.951,

Inter-Am. C.H.R. Report No. 109/99,

OEA/Ser.L/V/II.106, doc. 6 rev.

Se cacccutedsotuianpneunnedsanaotssctessenseas 12-13

Cyprus v. Turkey, App. No. 8007/77,

Fe STEED inteanedencuanminnddceciniane 13

Loizidou v. Turkey, App. No. 14318/89,

23 Eur. H.R. Rep. $13 (1996) ................ 13

Legality of the Threat of Use of Nuclear

Weapons, (Advisory Opinion)

oe eee 14-15, 16

Ocalan v. Turkey, App. No. 46221/99,

37 Eur. H.R. Rep. 10 (2003).................. 13

The Queen on the Application of Abbasi &

Anor v. Secretary of State for Foreign

and Commonwealth Affairs, [2002]

All E.R. (D) 70 (C.A. 2002).................. 5-6

PAGE

United States Statutes

28 U.S.C. $ 1350 ...... 2... cence eee ec eeeeeeeeeecees 3

2B U.S.C. § 2241 .... 2. cece eee e cece ence ew eeeen eens 4

Treaties and Conventions

Agreement Between the United States and

Cuba for the Lease of Lands for Coaling

and Naval Stations, Feb. 23, 1903,

U.S.-Cuba, T.S. No. 418 .........------e+- eee 2

American Convention on Human Rights,

Nov. 22, 1969, 1144 U.N.T.S. 123,

@ L.L.M. 673 .........ccccesccccccceccecceceees 10

European Convention for the Protection of

Human Rights and Fundamental Freedoms,

Nov. 4, 1950, 213 U.N.T.S. 221.......------- 10

International Covenant on Civil and Political

Rights, Dec. 19, 1966, 999 U.N.T.S. 171,

SR eS Brrr 8, ll

1949 Convention Relating to the Protection

of Civilian Persons in Time of War,

Aug. 12, 1949, 6 U.S.T. 3516,

T.L.A.S. 33GS «2... ccccccccccccccecccess 15, 16, 18, 19

1949 Convention Relating to the Treatment

of Prisoners of War, Aug. 12, 1949,

6 U.S.T. 3114, T.1.A.S. 3362 .......-. 15, 16, 18, 19

Constitution

U.S. Const. amend. V ..........-----eeeee sere eeeee a

vi

PAGE

Legislative Materials

Senate Resolution of Ratification of International

Covenant on Civil and Political Rights,

138 Cong. Rec. S 4781, 102d Cong.,

BoE diy EEE snadcncsecadscunsncsessnawonenses 8-9

Executive Materials

Exec. Order No. 13107, 63 Fed. Reg. 68991

ES AEN NEN 9

Declarations & Charters

African Charter on Human and People’s

Rights, June 27, 1981, 21 I.L.M. 58......... 10

American Declaration of the Rights and

Duties of Man, May 2, 1948, reprinted

in Basic Documents Pertaining to

Human Rights in the Inter-American

System, OEA/Ser.L.V/II.82 doc.

ne eee 10, 11-12

Universal Declaration of Human Rights,

Dec. 10, 1948, G.A. Res. 217A,

3 U.N. GAOR, U.N. Doc. A/810............. 9-10

The Magna Carta, Ch. 39 (1215).................. 7

United Nations Materials

Casariego v. Uruguay, No. 56/1979, Views

of the Human Rights Committee,

CCPR/C/13/D/56/1979, 29 July 1981 ....... 12

Vil

PAGE

Concluding Observations of the United Nations

Human Rights Committee, 63rd Sess.,

CCPR/C/79/Add.93 (1998) ..........-----000 15

G.A. Res. 83, U.N. GAOR, 56th Sess.,

Supp. No. 10 and Corrigendum,

U.N. Doc. A/56/83 (2001).........-.--- eee 14

G.A. Res. 173, U.N. GAOR, 43rd Sess.,

Supp. No. 49, U.N. Doc. A/43/49

GRID cv ccccccccccccccccnesescsesesoscccesecssces 10

Lopez Burgos v. Uruguay, No. 52/1979,

Views of the Human Rights Committee,

CCPR/C/13/D/52/1979, 29 July 1981 ....... 12

Protocol Additional to the Geneva Conventions

of 12 August 1949, and Relating to the

Protection of Victims of International

Armed Conflicts, 1125 U.N.T.S. 3,

reprinted in 16 1.L.M. 1391 (1977)........-. 17, 18

I United Nations, Multilateral Treaties

Deposited with the Secretary General

CIID ccccccccvececcvecsconcscesceseseescees bane 8

Vuolanne v. Finland, No. 265/1987, Views

of the Human Rights Committee,

CCPR/C/35/D/265/1987, 2 May 1989....... 9

Other

African Commission Decisions, Communication

Nos. 13/94, 139/94, 154/96, 161/97

(Saro-Wiwa v. Nigeria) ............---+0++00+: 10

lan Brownlie, Principles of Public

International Law (4th ed. 1990) ............ 4

Vill

Winston Churchill, Minute to the Home

Secretary (1943)

4 International Committee of the Red

Cross, Commentary on the Geneva

Conventions of 12 August 1949 (1958)

Judge Advocate General’s School,

United States Army, Operational

Law Handbook (1997)

Judge Advocate General’s School,

United States Army, Operational

Law Handbook (2002)

J. Matheson, Remarks, The U.S. Position

on the Relation of Customary Law

to the 1977 Protocols Additional to

the 1949 Geneva Conventions,

2 Am. U.J. Int’] L. & Pol’y 419 (1987)

Military Assistance Command Vietnam,

Directive Number 381-46,

(27 December 1967)

Military Assistance Command Vietnam,

Directive Number 20-5, (15 March 1968)..

Restatement (Third) of Foreign Relations

Law of the United States (1987)

ereereeeeeeeeeeeeeeeeeee

16

16

16

. 17-18

Interest of the Amicus Curiae

The amicus, the Human Rights Institute of the Inter-

national Bar Association (the “Institute”) is an interna-

tional body, headquartered in London, England, that

helps promote, protect and enforce human rights under

a just rule of law, and works to preserve the indepen-

dence of the judiciary and legal profession worldwide. '

Founded in 1995 under the Honorary Presidency of

Nelson Mandela, the Institute now has more than 7,000

members worldwide.

The amicus does not seek to comment on the merits of

any claims or defenses that Petitioners might raise in a

hearing. Rather, its interest in the case is in encouraging

this Court to recognize the fundamental, long-standing

principle that domestic law should be interpreted in con-

formity with international law, where possible. By pre-

senting its views in this brief, the amicus hopes to assist

the Court in safeguarding the role of international law in

United States law and fulfilling the expectations of other

States based on entrenched international law.

Statement

Petitioners are detained at the U.S. Naval Base at

Guantanamo Bay by U.S. armed forces. For over nine-

teen months, Petitioners have been imprisoned without

| No counsel for a party authored this brief in whole or in part.

This brief was prepared by the Human Rights Institute of the Inter-

national Bar Association, and its counsel: Vaughan Lowe, Barrister,

Essex Court Chambers, and Chichele Professor of Public International

Law and a Fellow of All Souls College, University of Oxford; Guy S.

Goodwin-Gill, Barrister, Blackstone Chambers, Senior Research Fel-

low of All Souls College and formerly Professor of International

Refugee Law at the University of Oxford; and Allen & Overy, New

York. No person other than amicus and its counsel made a monetary

contribution to the preparation or submission of this brief.

2

recourse to court process or access to counsel. Peti-

tioners are citizens of the United Kingdom, Australia

and Kuwait. Petitioners are not “enemy aliens,” since

they are citizens of friendly States, nor are they “enemy

combatants,” since the government has offered no evi-

dence or grounds for such classification. See Odah v.

U.S., 321 F.3d 1134, 1138 (D.C. Cir. 2003).

The U.S. maintains exclusive authority and control

over the Naval Base at Guantanamo Bay, which the U.S.

occupies under a lease from the Government of Cuba.

While Cuba retains “ultimate sovereignty,” the U.S. has

“control and jurisdiction” until both States agree oth-

erwise. Agreement Between the U.S. and Cuba for the

Lease of Lands for Coaling and Naval Stations, Feb. 23,

1903, U.S.-Cuba, art. III, T.S. No. 418.

Protection against arbitrary detention is guaranteed by

virtually every State’s domestic laws, but it does not end

at any one State’s border. International law guarantees

this fundamental right for any person detained under the

authority and control of a State, regardless of whether

the detention occurs within the State’s sovereign terri-

tory. The guarantee applies in times of war, as well as

peace.

Adherence to principles of international law in this

case is particularly significant in light of the leadership

role that the U.S. plays in world affairs. Friendly nations

watch the U.S. with expectations based on widely

accepted international law and shared legal traditions.

Unfriendly nations look for an opportunity to accuse the

U.S. of violating minimal standards of international law

or to seize upon an American precedent to justify or

obscure their own violations.

3

Summary of Argument

U.S. law should be interpreted so as to comply with

obligations under international human rights law and

international humanitarian law, especially where there is

a broad consensus in the international community

regarding a fundamental right.

International human rights law imposes an obligation

on the U.S. to provide every person detained under its

authority and control access to a court for the purpose of

reviewing the lawfulness of his detention, regardless of

whether the U.S. retains formal sovereignty over the

location of the detention.

Under international humanitarian law, the U:S. is

required to provide every person detained in connection

with alleged involvement in an armed conflict with a

prompt determination as to whether he is accorded “pris-

oner of war” status. Prolonged delay of this determina-

tion without access to counsel or judicial review results

in arbitrary detention, contrary to both humanitarian and

human rights law.

Argument

I. United States Law Should Comply with Interna-

tional Human Rights and Humanitarian Law

United States law should be interpreted so as to rec-

ognize the federal courts’ jurisdiction to hear Petitioners.”

2‘ The amicus makes no comment vn issues that split the lower

courts as to whether, or how, an obligetion that binds the U.S. as a

matter of international law may create a private cause of action for its

violation in federal courts under the Alien Tort Claims Act, 28 U.S.C.

§ 1350, or otherwise. See, e.g., Odah, 321 F.3d at 1145-1149 (Ran-

dolph J., concurring) (noting circuit split). The amicus simply urges

the Court to respect international law in interpreting jurisdiction under

4

It is an accepted principle that domestic law should be

interpreted in accordance with international obligations,

where possible. This Court applied this principle in

Johnson v. Eisentrager, 339 U.S. 763 (1950), and should

likewise do so here.

A. The Rule in Favor of Harmony with Interna-

tional Law

The principle that domestic law should be interpreted

so as to avoid violations of international obligations,

where fairly possible, is well-established in the U.S. and

other States. See, e.g., Restatement (Third) of Foreign

Relations Law of the United States §§ 114-15 (1987); Ian

Brownlie, Principles of Public International Law, 42-51

(4th ed. 1990).?

This Court has applied the principle of construction in

favor of harmony with international law in a wide vari-

ety of cases. See, e.g., Trans World Airlines, Inc. v.

Franklin Mint Corp., 466 U.S. 243, 254-61 (1984) (find-

ing air carrier’s declared liability limit was consistent

with an international air carriage treaty that the U.S.

adhered to for 50 years and had not been repudiated);

Weinberger v. Rossi, 456 U.S. 25, 29-30, 32-33 (1982)

(looking to international law in interpreting statute that

prohibited employment discrimination against U.S. cit-

izens on military bases overseas unless permitted by

U.S. law, inciuding the habeas corpus statute, 28 U.C.S. § 2241. See

Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980); Beharry v.

Ashcroft, 183 F. Supp. 2d 584 (E.D.N.Y.), rev'd on other grounds, No.

98 CV 5381 (JBW), 2003 U.S. App. LEXIS 8279 (2d Cir. May 1,

2003).

3 Even when deciding constitutional questions without any

international dimension, this Court considers international law as a

reflection of the “values that we share with a wider civilization.”

Lawrence v. State, 123 S. Ct. 2472, 2483 (2003); see also Atkins v.

Virginia, 536 U.S. 304, 317 n.21 (2002).

\

5

treaty); Lauritzen v. Larsen, 345 U.S. 571, 578 (1953)

(in maritime tort case, looking to law of nations in deter-

mining statutory construction of Jones Act); Murray v.

The Schooner Charming Betsy, 6 U.S. 64, 118 (1804) (in

admiralty case, noting that “an act of Congress ought

never to be construed to violate the law of nations if any

other possible construction remains, and consequently

can never be construed to violate neutral rights, or to

affect neutral commerce, further than is warranted by the

law of nations as understood in this country”); cf.

McCulloch v. Sociedad Nacional de Marineros de Hon-

duras, 372 U.S. 10, 19-21 (1963) (finding National

Labor Relations Act did not apply to foreign vessels

manned by alien crews because such laws “would raise

considerable disturbance not only in the field of mar-

itime law but in our international relations as well”).

The rationale for interpreting domestic law in har-

mony with international law loses none of its force when

a fundamental human right is involved. Indeed, the U.S.

strives to enforce fundamental rights widely to the ben-

efit of the world community, its allies, and its own citi-

zens abroad. See, e.g., Case Concerning U.S. Diplomatic

and Consular Staff in Tehran, (U.S. v. Iran) 1980 I.C.J.

3, at 99.23, 69 (May 24) (upholding claims of inhumane

treatment of U.S. citizens). Expectations of other States

based on international law should be fulfilled so as to

foster goodwill among States and encourage compliance

in the future. Particularly with respect to States with

whom the U.S. shares a common history of commitment

to the rule of law, expectations should not be lightly

ignored.‘

4 For example, in The Queen on the Application of Abbasi &

Anor v. Secretary of State for Foreign and Commonwealth Affairs,

[2002] All E.R. (D) 70 (C.A. 2002), the English Court of Appeal

declined to compel the British Secretary of State to make represen-

tations to the U.S. concerning the detainees at Guantanamo Bay, but

6

B. Applying Johnson v. Eisentrager Today

In holding that the U.S. courts lacked jurisdiction to

hear Petitioners, the D.C. Circuit misinterpreted the prin-

ciples set forth by this Court in Johnson v. Eisentrager,

339 U.S. 763 (1950). See Odah v. U.S., 321 F.3d 1134,

1138-1145 (D.C. Cir. 2003).

In Eisentrager, this Court dismissed habeas corpus

petitions by Germans who were convicted by a U.S. mil-

itary tribunal in China shortly after the Second World

War for violating the rules of war and were then repa-

triated to Germany to serve their sentences. Johnson,

339 U.S. at 765-66. Petitioners were “enemy aliens,”

since they were citizens of a State that was at war with

the U.S. They argued, inter alia, that the military tri-

bunal that convicted them lacked jurisdiction under

international law. Jd. at 785-90.

Justice Jackson, for the majority, reviewed all relevant

sources of international law at the time, including

treaties and customary international law. Jd. at 786-90.

He observed that petitioners had received all of the due

process required under existing international law, includ-

ing disclosure of the full particulars of their alleged war

crimes and a trial before a military tribunal, at which

other defendants were acquitted. Jd. at 766, 786-90. Jus-

tice Jackson concluded that there was nothing about the

did so, in part based on its expectation that the U.S. would come into

compliance with international law: “What appears to us to be objec-

tionable is that Mr. 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. It is important to record that the position may

change when the appellate courts in the United States consider the

matter.. . . As is clear from our Judgment, we believe that the United

States Courts have the same respect for human rights as our own.” /d.

at 91766, 107.

7

prosecution of petitioners that had infringed their rights

under international law. Jd. at 789. Their detention was

lawful under international law, which provided that pris-

oners of war could be detained until the end of war

crimes proceedings and, if necessary, until the expiration

of the punishment. /d.

Much has changed in international law in the half cen-

tury since Eisentrager was decided, yet Justice Jackson’s

approach remains correct. The obligations of the U.S.

under international law must be rigorously considered

and robustly enforced by the courts, wherever possible.

Here, the analysis involves international human rights

law, which emerged after the Second World War, as well

as advances in international humanitarian law.

II. International Human Rights Law Requires Access

to a Court or Tribunal

Under international human rights law, the U.S. is

bound by treaty and customary international law to grant

detainees access to judicial review concerning the law-

fulness of their detention. This obligation arises in Peti-

tioners’ case as a result of the authority and control that

the U.S. exercises over Guantanamo Bay, regardless of

whether the U.S. retains ultimate sovereignty.

A. The United States’ Obligations Pursuant to Treaty

and Customary International Law

Since its affirmation in the Magna Carta,° the right

against arbitrary detention has held a venerable spot in

the history of Anglo-American law, taking its place in

5 “No free man shall be taken, imprisoned, disseised [dispos-

sessed], outlawed, banished, or in any way destroyed, nor will We

proceed against or prosecute him, except by the lawful judgment of

his peers and by the law of the land.” The Magna Carta, ch. 39 (1215).

the American Constitution through the Due Process

Clause of the Fifth Amendment. U.S. Const. amend. V.

Generations of statesmen have described this right as a

feature that distinguishes civilized democracy from

tyranny® and totalitarianism.’ As the values of the rule of

law and due process have spread, the right against arbi-

trary detention has been included in the constitutions of

States around the world.

Following the Second World War, the prohibition

against arbitrary detention has also become entrenched

in international human rights law. The U.S. is bound to

observe this right through its treaty obligations and cus-

tomary international law.

The treaty obligations of the U.S. flow from the Inter-

national Covenant on Civil and Political Rights

(“ICCPR”), Dec. 19, 1966, 999 U.N.T.S. 171, 6 1.L.M.

360, 368, which the U.S. ratified in 1992.* The ICCPR

provides, in pertinent part:

® In The Federalist No. 84, at 533, Alexander Hamilton quotes

William Blackstone: “the practice of arbitrary imprisonments, [has]

been, in all ages, the favorite and most formidable instrument of

tyranny. . .To bereave a man of life. . .without accusation or trial,

would be so gross and notorious an act of despotism, as must at once

convey the alarm of tyranny; but confinement of the person, by

secretly hurrying him to jail, . . .is a less public, less striking, and

therefore a more dangerous engine of arbitrary government.”

7 At the height of the Second World War, Sir Winston Churchill

stated: “The power of the executive to cast a man into prison without

formulating any charge known to the law, and particularly to deny him

the judgement of his peers, is in the highest degree odious and is the

foundation of all totalitarian government whether Nazi or Commu-

nist.” Winston Churchill, Minute to the Home Secretary, 21 Novem-

ber 1943.

§ The ICCPR has been ratified by 149 States. See I United

Nations, Multilateral Treaties Deposited with the Secretary General,

164-65 (2003). The U.S. signed the ICCPR in 1977, and ratified it in

1992. See Senate Resolution of Ratification of International Covenant

9

Article 9(1): Everyone has the right to liberty and

security of the 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 estab-

lished by law

Article 9(4): Anyone who is deprived of his liberty

by arrest or detention shall be entitled to take pro-

ceedings before a court, in order that that court

may decide without delay on the lawfulness of his

detention and order his release if the detention is

not lawful.

As the plain language indicates, the essence of the pro-

hibition against arbitrary detention is a right to judicial

review.°

This right is also protected by customary international

law, as reflected in a broad range of international instru-

ments, decisions, commentaries and State practice. The

Universal Declaration of Human Rights, which is rec-

ognized as an authoritative statement of customary inter-

on Civil and Political Rights, 138 Cong. Rec. S 4781, *S4784, 102d

Cong. (1992) (ratified Apr. 2, 1992). Congress, however, added a

reservation that Articles | through 27 are not self-executing. See 138

Cong. Rec. at *S4784. In December 1998, President Clinton rein-

forced the commitment of the U.S. to protect and promote human

rights under agreements to which it is a party, including the ICCPR.

Exec. Order No. 13107, 63 Fed. Reg. 68991 (Dec. 10, 1998). The U-S.

has not declared or communicated any derogation from its obligations

under the ICCPR.

9 See, ¢.g., Vuolanne v. Finland, No. 265/1987, Views of the

Humans Rights Committee, CCPR/C/35/D/265/1987 at 49.6, 2 May

1989 (finding that review of petitioner's claim before a superior mil-

itary officer lacked the “judicial character” of a court hearing, thus

depriving petitioner of his right of recourse to a “court”).

10

national law, contains the obligation to provide detainees

with an opportunity to challenge their detention in court.

Universal Declaration of Human Rights, Dec. 10, 1948,

arts. 9-10, G.A. Res. 217A, 3 U.N. GAOR, U.N. Doc.

A/810. This obligation is included in every other major

international human rights convention which contains a

general enumeration of rights."® There is also wide inter-

national practice in support of a principle akin to habeas

corpus under international law."

The consistency and weight of international practice is

such that the distinguished authors of the Third Restate-

ment assert that, as a matter of customary internatianal

law, a State violates international law if, as a matter of

policy, it practices, encourages, or condones “prolonged

10 See, e.g., American Declaration of the Rights and Duties of

Man, May 2, 1948, arts. XXV, XXVI, reprinted in Basic Documents

Pertaining to Human Rights in the Inter-American System,

OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992) (expressing the obliga-

tions of members of the Organization of American States, including

the U.S.); European Convention for the Protection of Human Rights

and Fundamental Freedoms, Nov. 4, 1950, art. 5, 213 U.N.T.S. 221;

International Covenant on Civil and Political Rights, Dec. 19, 1966,

art. 9, 999 U.N.T.S. 171, 6 LL.M. 368; American Convention on

Human Rights, Nov. 22, 1969, art. 7(5), 1144 U.N.T.S.123, 9 LL.M.

673; African Charter on Human and People’s Rights, June 27, 1981,

arts. 6-7, 21 I.L.M. 58; see also African Commission Decisions in

Communication Nos. 13/94, 139/94, 154/96, 161/97 (Saro-Wiwa v

Nigeria) (holding that Article 6 prohibited arbitrary detention); 64/92

(Aleke Banda v. Malawi) (same).

‘| For example, the United Nations Body of Principles for the

Protection of All Persons under Any Form of Detention or Impris-

onment, adopted by the General Assembly by Resolution 43/173 G.A.

Res. 173, U.N. GAOR, 43rd Sess., Supp. No. 49, U.N. Doc. A/43/49

(1988), contains a requirement for judicial control (Principle 4), a

right to legal assistance (Principle 17), a right to consult counsel

(Principle 18) and a right to challenge the lawfulness of detention

(Principle 32). The Body of Principles contains no provision for sus-

pension of the guarantees in times of crisis.

11

arbitrary detention.” Restatement (Third) of Foreign

Relations Law of the United States §702, n.6 (1987).

B. The United States’ Obligations Arise Through

Authority and Control

Under international law, States are obliged to respect

and protect the right against arbitrary detention when-

ever they exercise authority and control over a person,

regardless of where the detainee is being held, and

regardless of the detainee’s nationality. Thus, this obli-

gation applies to the U.S. in respect of Petitioners.

International tribunals consistently hold that the

responsibility of a State to secure basic human rights

established in international law for the benefit of indi-

vidual persons does not hinge on the presence of such

persons within the sovereign territory of the State, or

their nationality, but rather on whether such persons are

subject to the authority and control of the State. One of

the fundamental purposes of the recognition of the right

against arbitrary detention was to prevent abuse by

States shifting the site of detention outside their borders,

so as to avoid domestic laws. Consequently, Cuba’s

“ultimate sovereignty” over Guantanamo Bay is irrele-

vant under international law.

The reach of the prohibition against arbitrary deten-

tion under international law has been addressed in the

context of the ICCPR and the American Declaration of

the Rights and Duties of Man, both of which apply to

and bind the U.S. See ICCPR, art. 2(1) (“Each State

Party to the present Covenant undertakes to respect and

ensure to all individuals within its territory and subject

to its jurisdiction the rights recognised in the present

Covenant.”) (emphasis added); American Declaration of

the Rights and Duties of Man, May 2, 1948, arts. XXV,

XXVI, reprinted in Basic Documents Pertaining to

12

Human Rights in the Inter-American System,

OEA/Ser.L.V/I1.82 doc.6 rev.1 at 17 (1992).

The United Nations Human Rights Committee, which is

responsible for monitoring compliance with the ICCPR,

determined that a State party may be held accountable

for “violations of rights under the Covenant which its

agents commit upon the territory of another State,

whether with the acquiescence of the Government of that

State or in opposition to it.” Lépez Burgos v. Uruguay,

No.52/1979, Views of the Human Rights Committee,

CCPR/C/13/D/52/1979 at 412.3, 29 July 1981 (finding

petition concerning the kidnapping and detention of peti-

tioner’s husband by Uruguayan agents in Argentina

admissible for review); see also Casariego v. Uruguay,

No.56/1979, Views of the HRC, CCPR/C/13/D/56/1979

at 9910.1-10.3, 29 July 1981 (where petitioner was

arrested and detained incommunicado by Uruguayan

agents in Brazil, holding that a State is “accountable for

violations of rights under the Covenant which its agents

commit upon the territory of another State, whether with

the acquiescence of the Government of that State or in

opposition to it”). The Committee further held that it

would be “unconscionable to so interpret the responsi-

bility under article 2 of the Covenant as to permit a State

party to perpetrate violations of the Covenant on the ter-

ritory of another State, which violations it could not per-

petrate on its own territory.” Burgos, at 412.3.

Likewise, in interpreting the American Declaration of

the Rights and Duties of Man, which the U.S. has con-

ceded it is bound by, the Inter-American Commission on

Human Rights determined that State Parties must secure

the rights set out by the Declaration, regardless of where

the State Party detains the petitioner. See Coard v.

United States, Case 10.951, Inter-Am. C.H.R. Report

No. 109/99, OEA/Ser.L/V/II.106, doc. 6 rev. at 1283

13

(1999) at §§ 37, 39, 41 and 43 (where U.S. detained peti-

tioners during military occupation in Grenada, noting

that the U.S. conceded that it was bound by the Decla-

ration, and holding that “the inquiry turns not on the

presumed victim's nationality or presence within a par-

ticular geographic area, but on whether. . . the State

observed the rights of a person subject to its authority

and control”).

In addition, throughout Europe, courts have held that

a State is liable for acts of its agents even on another

sovereign’s territory. The European Commission and the

European Court of Human Rights have interpreted

“jurisdiction” under the European Convention on Human

Rights as extending protection to individuals, regardless

of their nationality, in places where they are subject to

the actual control of agents of State Parties, even if those

places are outside the territory of the State. See Cyprus

v. Turkey, App. No. 8007/77, 13 DR 85 (1977) (holding

that basic tenet of the Convention provides that States

are “bound to secure the rights of all persons under their

actual authority and responsibility, not only when that

authority is exercised within their own territory but also

when it is exercised abroad”); see also Loizidou v. Turkey,

App. No. 14318/89, 23 Eur. H.R. Rep. 513 (1996); Bankovic

v. Belgium and 16 Other Contracting States, App. No.

52207/99, 12 December 2001, 11 B.H.R.C. 435; Ocalan

v. Turkey, App. No. 46221/99, 37 Eur. H.R. Rep. 10

(2003).

This approach to the extraterritorial reach of the duties

of States is further reflected in the principles of inter-

national law concerning State responsibility. These

affirm that a State is responsible for the conduct, inter

alia, of persons or entities exercising elements of gov-

ernmental authority, or acting on the instructions of, or

under the direction or control of, that State. The criterion

14

is the link between the person said to have undertaken

the conduct and the State in question. The nationality of

the persons affected by the conduct, or their presence

within the sovereign territory of the State in question, is

immaterial. See United Nations International Law Com-

mission’s Articles on Responsibility of States for Inter-

nationally Wrongful Acts, G.A. Res. 83, U.N. GAOR,

56th Sess., Supp. No. 10 and Corrigendum, U.N. Doc.

A/56/83 (2001).

III. International Law Requires Due Process During

Armed Conflict

On September 11, 2001, the U.S. was struck by ter-

rorists, against whom it must continue to protect itself

vigilantly. However, in international law there is no con-

cept of a “war on terror,” which releases States from

their obligation to respect the right against arbitrary

detention. International law governs all manner of deten-

tions arising from violent conflicts, preserving a just bal-

ance between due process and compelling security

interests.

The prohibition against arbitrary detention under

international human rights law is not displaced by cir-

cumstances of armed conflict. In any event, similar due

process rights for detainees apply under the “laws of

war,” also known as “international humanitarian law.”

A. Obligations Under International Human Rights

Law Continue During Armed Conflict

The obligation to respect the right against arbitrary

detention under the ICCPR continues to apply in cir-

cumstances of military occupation and military rule. See

Legality of the Threat of Use of Nuclear Weapons,

(Advisory Opinion) 1996 I.C.J. 226, 240 (June 24)

(holding that “the protection of the [ICCPR] does not

15

cease in times of war, except. . . [where] certain pro-

visions may be derogated from in a time of national

emergency”); see also Concluding Observations of The

United Nations Human Rights Committee, 63rd Sess.,

CCPR/C/79/Add.93 at 410 (1998) (holding Covenant

applicable where State exercises “effective control”).

International human rights tribunals have held that,

even where national security is involved, administrative

hearings without the benefit of counsel do not meet the

requisite standard of judicial or quasi-judicial review.

For instance, the European Court of Human Rights held

that a person detained pending deportation for security

reasons was deprived of his right to judicial review,

where he had a hearing before an advisory panel but was

denied legal representation and was given only an out-

line of the grounds for his deportation. See Chahal v.

United Kingdom, App. No. 22414/93, 23 Eur. H.R. Rep.

413 (1997).

B. International Humanitarian Law Requires Due

Process During Armed Conflict

An overriding objective of international humanitarian

law, or the laws of war, is to ensure that every detainee

is assigned a status in order that he may receive rights

and privileges appropriate for his status. As it stands,

Petitioners find themselves in precisely the sort of “legal

black hole” that international humanitarian law aims to

seal off.

The U.S., along with 190 other States, has ratified

both the 1949 Convention Relating to the Treatment of

Prisoners of War (“P.O.W. Convention”), Aug. 12, 1949,

6 U.S.T. 3114, T.I.A.S. 3362, and the 1949 Convention

Relating to the Protection of Civilian Persons in Time of

War (“Civilian Convention”), Aug. 12, 1949, 6 U.S.T.

3516, T.I.A.S. 3365, which apply to “all cases of

16

declared war or any other armed conflict which may

arise between two or more High Contracting Parties,

even if the state of war is not recognized by one of

them.” P.O.W. Convention, art. 2; Civilian Convention,

art. 2; see also Legality of the Threat of Use of Nuclear

Weapons, 1996 I.C.J, 226, 257 (Advisory Opinion)

(holding the terms of the Conventions binding as a mat-

ter of customary international law, since the rights they

protect are so “fundamental” as to be “intransgressible”).

The Conventions have been supplemented by two

additional protocols, which, like the Conventions, are

regarded as part of customary international law and have

been followed by the U.S. in its regulations and in pre-

vious conflicts.”

The Conventions provide for the protection of persons

detained in circumstances of armed conflict, either as

prisoners of war entitled to the benefits of the P.O.W.

Convention or as civilian detainees protected under the

Civilian Convention. See P.O.W. Convention, art. 5;

Civilian Convention, arts. 71-76, 132, 133; see also 4

International Committee of the Red Cross, Commentary

on the Geneva Conventions of 12 August 1949 (1958)

12 ‘In its Operational Law Handbook, the Judge Advocate Gen-

eral’s School, U.S. Army, states “that the US views [among others,

Articles 45 and 75 of the First Additional Protocol] as customary

international law.” Judge Advocate General’s School, U.S. Army,

Operational Law Handbook, JA 422 at 18-2 (1997). This statement is

qualified in the 2002 edition of Operational Law Handbook, in which

it is now said that the U.S. views Article 45 of the First Additional

Protocol as “customary international law or acceptable practice

though not legally binding.” Judge Advocate General’s School, U.S.

Army, Operational Law Handbook, Ch. 2 (2002). However, there is

no evidence to suggest, and none is offered, that customary interna-

tional law has changed in this way since 1997. See Michael J. Math-

eson, Remarks, The U.S. Position on the Relation of Customary Law

to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2

Am. U.J. Int’] L. & Pol’y 419, 427 (1987).

17

(“Every person in enemy hands must have some status

under international law: he is either a prisoner of war

and, as such, covered by the Third Geneva Convention,

a civilian covered by the Fourth Geneva Convention. .

there is no intermediate status; nobody in enemy hands

can be outside of the law.”). Any detainee claiming the

Status of prisoner of war or appearing to be so entitled is

presumed to be a prisoner of war, and retains that status

until such time as his status has been determined by a

competent tribunal. See Protocol Additional to the

Geneva Conventions of 12 August 1949, and Relating

to the Protection of Victims of International Armed

Conflicts (“First Additional Protocol”), art. 45, 1125

U.N.T.S. 3, reprinted in 16 I.L.M. 1391 (1977). Fur-

thermore, any detainee not falling under the P.O.W. Con-

vention or the Civilian Convention, such as an “unlawful

combatant,” is entitled to the benefits of Article 75 of

the Additional Protocol, which guarantees humane treat-

ment and due process before a court for any penal pro-

ceedings. See First Additional Protocol, art. 75.

During the Vietnam War, the U.S. Military Assistance

Command issued comprehensive criteria for the classi-

fication and disposition of detainees, providing for the

Systematic classification of detainees into “prisoner of

war” and “non-prisoner of war” categories. See Military

Assistance Command Vietnam, Directive Number 38]-

46, Annx. A, (27 December 1967). Extensive provision

was made for due process in the determination of eligi-

bility for prisoner of war status in cases of “non-pris-

oners of war and doubtful cases who are captured by or

are in the custody of U.S. forces.” See Military Assis-

tance Command Vietnam, Directive Number 20-5, (15

March 1968). In particular, the military laid down the

principle that, “[t]he Detainee shall have the right to be

present with his counsel at all open sessions of the tri-

bunal,” required time with counsel, free access by coun-

18

sel and interviews in private, opportunity to confer with

essential witnesses and rights of cross-examination. /d.

The treatment of Petitioners in this case is a marked

departure from the procedures mandated by international

humanitarian law and followed by the U.S. in the past.

First, the U.S. has not acknowledged or determined

Petitioners’ status as “prisoners of war.” This is contrary

to the presumption of “prisoner of war” status under the

First Additional Protocol, which may only be displaced

through due process in a competent tribunal. See First

Additional Protocol, arts. 45(1)-(2). Additionally, “pris-

oners of war” status entitles Petitioners to a host of rights

and privileges specified under the P.O.W. Convention.

Further, because Petitioners have not been given sta-

tus in accordance with the Conventions and additional

protocols, there is no framework in which to ensure they

are not detained any longer than permitted or justified

under international law. Under Article 132 of the P.O.W.

Convention, prisoners of war must be released upon the

cessation of hostilities. The Civilian Convention con-

tains an analogous provision ensuring the release of

civilians detained in circumstances of armed conflict (on

narrow permissible grounds, such as “definite suspicion”

of hostile activity) when the reasons which necessitated

their internment no longer exist. See Civilian Conven-

tion, art. 132.

Moreover, if the U.S. intends to bring any penal pro-

ceedings against Petitioners, they are entitled to legal

representation and a hearing before a judicial tribunal.

Article 75 of the First Additional Protocol, recognized as

customary international law, provides that detainees are

entitled to the rights of defense, including assistance by

a qualified advocate or counsel “who shall be able to

visit them freely and shall enjoy the necessary facilities

19

for preparing the defence.” First Additional Protocol,

Art. 75(4)(a). Further, the Geneva Conventions protect

detainees against “[t]he passing of sentences and the car-

rying out of executions without previous judgment pro-

nounced by a regularly constituted court, affording all

the judicial guarantees which are recognized as indis-

pensable by civilized peoples.” P.O.W. Convention, art.

3; Civilian Convention, art. 3; see also First Additional

Protocol, art. 75 (“No sentence may be passed and no

penalty may be executed on a person found guilty of a

penal offence related to the armed conflict except pur-

suant to a conviction pronounced by an impartial and

regularly constituted court respecting the generally rec-

ognized principles of regular judicial procedure.”).

Finally, it has been suggested that detainees in Guan-

tanamo are “unlawful combatants.” This classification

was not used by the D.C. Circuit Court in characterizing

Petitioners’ status and it does not appear in either inter-

national human rights law or international humanitarian

law. Nevertheless, even if Petitioners were labelled by

the government as “unlawful combatants,” they would

still be entitled to due process rights under Article 3 of

all four Geneva Conventions and Article 75 of the First

Additional Protocol.

20

Conclusion

The prohibition against arbitrary detention is a fun-

damental principle of international law that applies

whenever a State exercises authority and control, and

applies in times of war as well as peace. The present

detention of Petitioners is inconsistent with this basic

human right. U.S. law should be interpreted to conform

with obligations under international law, preserving the

role of the U.S. as a leader in the advancement of

ordered liberty, and meeting the expectations of fellow

enlightened democracies.

Respectfully submitted,*

Pamela Rogers Chepiga

Counsel of Record

Andrew B. Matheson

Karen Lee

Nathan Reilly

ALLEN & OVERY

1221 Avenue of the Americas

New York, New York 10020

(212) 610-6300

Attorneys for Amicus Curiae

October 3, 2003

* Submitted and filed with consent of all parties.