US COURT DECISION ON GUANTANAMO DETAINEES HAS SERIOUS IMPLICATIONS FOR RULE OF LAW, SAYS UN RIGHTS EXPERT

12 March 2003




The effects of the ruling by an American court that Guantanamo Bay detainees cannot invoke the jurisdiction of United States courts because the territory is not part of the country “can set a dangerous precedent”, an expert of the United Nations Commission on Human Rights said today.

The Special Rapporteur on the independence of judges and lawyers, Dato’ Param Cumaraswamy, was commenting on the decision yesterday by the United States’ Court of Appeals for the District of Columbia Circuit. The decision, he said, whose text he had read in full, “appears to imply that a government of a sovereign State could lease a piece of land from a neighboring State, set up a detention camp, fully operate and control it, arrest suspects of terrorism from other jurisdictions, send them to this camp, deny them their legal rights -- including principles of due process generally granted to its own citizens -- on grounds that the camp is physically outside its jurisdiction”.

“By such conduct, the Government of the United States, in this case, will be seen as systematically evading application of domestic and international law so as to deny these suspects their legal rights. Detention without trial offends the first principle of the rule of law”, he said, adding, “The implications of this decision are far reaching and can set a dangerous precedent”.

Recalling that United States Attorney General John Ashcroft had reportedly described the decision as “an important victory in the war on terrorism”, Mr. Cumaraswamy said, “The war on terrorism cannot possibly be won by denial of legal rights, including fundamental principles of due process of those merely suspected of terrorism”.

The Special Rapporteur called on the Government of the United States to comply with General Assembly Resolution A/RES/57/219 of 16 December 2002 on Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. He noted that the resolution affirmed, among others, that States must ensure that any measure taken to combat terrorism complies with obligations under international law, in particular international human rights, refugee and humanitarian law.




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