The ripple effect from Guantanamo Bay to the English courts

23 August 2010 by

Review: The Ripple Effect: Guantanamo Bay in the United Kingdom Courts” by CRG Murray, International Law Review Online Companion, April 2010 – Read article

A new academic article by C.R.G Murray at Newcastle University analyses the interesting and important line of case-law arising from claims by men detained in Guantanamo Bay. The case-law has involved many issues of a politically sensitive nature and generated much media coverage and pressure on the British Government. The ripple effects from the detentions have led to a series of important judgments.

Murray’s article reviews important case-law arising from detention at Guantanamo Bay and the impact it has had on the decisions reached by the courts. Murray concludes that the case-law demonstrates two major ‘ripple effects’: (1) judicial review has been used to press the British Government into being more active in opposing detentions at Guantanamo Bay; (2) where serious human rights breaches are in issue, the courts have been more willing to disregard historic concepts of comity between courts in different jurisdictions and give their own view of the correct interpretation of law for the benefit of appellate courts in the United States.

The first substantive section of the article considers the cases of Abbasi v Secretary of State and Al Rawi v Secretary of State, where relatives of British detainees or detainees of foreign nationals ordinarily resident in the UK argued that the British Government was obliged to give them diplomatic protection by pressing for their release.

In Abbasi the Court of Appeal refused the application for judicial review on the basis that neither the European Convention on Human Rights nor the Human Rights Act 1998 supported a finding that the Government owed a duty to make diplomatic representations on the Claimant’s behalf. Had the Government failed even to consider taking such action, then a judicial review claim could be brought. Political pressure however was later used to secure the release of all British nationals held in Guantanamo Bay, but no representations were made to aid the release of non-nationals who had been granted leave to remain in the UK.

In Al Rawi, three refugees who were granted such leave argued that the British Government’s refusal to make representations on their behalf constituted discrimination on the basis of nationality. They claimed their case was more compelling than Abassi, which was focussed upon the arbitrary nature of his detention, because they alleged that they had been victims of torture at the hands of US authorities. The Court of Appeal did not consider that there had been such discrimination, finding that nationals and non-nationals are materially different from each other in terms of their entitlement to diplomatic protection and that the latter were simply not entitled to it.

Murray points out that despite the lack of success before the courts in these cases, the British Government came under increasing pressure to act on the detainees’ behalf. In 2007 the Government did make representations on behalf of those with indefinite leave to remain and this was a factor in bringing about the release of most of them. Murray argues that, “The focus of these cases upon the detainees’ treatment, a strategy which delivered “strong arguments in the context of political debate” [quoting from Al Rawi in the Divisional Court], goes a long way towards explaining this change in the British Government’s position” (p28).

The article next focuses on Secretary of State v Hicks, where an Australian citizen whose national government had not taken steps to aid his release, challenged a decision of the British Government to give him British citizenship at the same time as depriving him of it. He satisfied the requirements of s4C of the British Nationality Act 1981, having a British mother, so applied for citizenship. A decision was made to grant this at the same time as an order depriving him of citizenship, under s40 of the same Act, on the basis that he had shown disaffection or disloyalty towards the state by act or speech. The crucial question was whether behaviour before the grant of citizenship could amount to such an act or deed. The Court found that it did not, because he did not owe any allegiance to the Crown before the grant of citizenship, when the acts of disloyalty were said to have taken place. Murray notes that, “The conditions in which Hicks was being held again loomed large in the case” (p31).

This decision resulted in a grant of citizenship to Hicks. However, the Immigration, Asylum and Nationality Act 2006 was passed, permitting removal of citizenship from dual nationals where “The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good” (inserted into the 1981 Act at s40(2)).

The third section of the article focuses on ongoing litigation in Binyam Mohamed v Secretary of State and Al Rawi v Secretary of State, where the Claimants attempt to expose the role played by the British Government in their detention at Guantanamo Bay. In Binyam Mohamed the Claimant has alleged repeated torture in US custody. The British Government refused to make public potentially exculpatory evidence and accounts relating to his treatment shared with it by the US on the basis of public interest immunity. Several judgments resulted in him still being denied the documents originally sought. After his release the proceedings continued. Very serious allegations of collusion in torture by British security personnel were made. Al Rawi similarly involved allegations of collusion in the detention of Guantanamo Bay inmates. The use of ‘closed evidence’ (presented by security cleared advocates and not made public or released to the Claimants themselves) has featured in these cases.

As Murray points out, litigation relating to detention at Guantanamo Bay is ongoing and will require the courts to decide if the British Government was complicit in detention and alleged torture of detainees there: “This might require the English courts to reach uncomfortable decisions with an impact which is very close to home” (p43-44).

Although some of the cases have not resulted in favourable judicial decisions, the courts have heard arguments of a very politically sensitive nature, which has led to great media pressure being placed upon the Government to secure the release of detainees and take a stronger stance against the existence of detention facilities in Guantanamo Bay. Future developments in this case-law may be dramatic and of great interest in the field of human rights.

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