1. Detained Abroad
This essay is an attempt to solve the complexities of Inter-State legal issues that
arise with the cases of detention of UK citizens captured at Afghanistan by US
forces and transferred to the Guantanamo Bay for investigation.
What is the role of the Geneva Conventions in regard to it (especially Article 3)?
Legal status of such prisoners and under what legal authority could they be kept
imprisoned are the main issues that will be addressed herein?
I will also discuss in detail the advancement of judicial precedent regarding
prisoners of war and their current International status and how it has developed
with time and the reverse in International standards that has came with it.
The objective of this essay is to measure the justification of the treatment of
foreign prisoners in United States controlled areas as against the rights of
prisoner. It brings the shape of research question to something like this,
‘The legal approach to the issue of balance between general public interests of
safety and individual rights to be free from bodily restraint.’
The case of Mr. Abbasi
In a 2002 case Abbasi v Secretary of State1, the family of Feroz Ali Abbasi, who
is a British national and who was captured by the US forces during their post 9/11
operation in Afghanistan for a period of eight months without any process of law,
had brought about an action in which the Foreign office was pressed to confirm
the living conditions of the place where he was kept and an explanation of what is
to become of him in future.2 The first query was satisfied by the grant of
permission to the Government of UK to visit the facilities which they did thrice and
made sure that the living conditions were humane (by confirming that each
detainee is living in his own cell that has a ventilation system, a wash basin and a
toilet).3 Regarding the second, the family had to file a writ of Habeas Corpus in
the District Court of Columbia. Pending which a motion was brought in the Civil
Court of Appeal in UK. Whereinit was decided, that Mr. Abbasi may have to face
detention for an indefinite period in a US controlled Land without access to any
justice system. The reasons assigned by the court to the decision were as below,
1. The Foreign and commonwealth office is already assisting Mr. Abbasi and
discussions on the legality of this and similar detentions was also under way and
the court did not wish to impose its opinion on those discussions.
2. Though it is a breach of human rights, the court does not wish to interfere
through Secretary of the State into the Foreign policy of another country
especially on this delicate matter and time.
1 The Queen on the application of Abbasi and another v. Secretary of State for foreign and
commonwealth affairs and secretary of State for home department [2002] EWCA Civ. 1598
2 ibid p. 2
3 ibid p.2

2. 3. The matter is already sub-judice at the courts of USA and it is expected of
them to have the same concern for human rights as is of UK courts.4
4. The case has also taken up by the Inter-American Commission on Human
Rights, though it is unclear what the result would be.5
Since the beginning of the war on terror, there has been a wave of legislations all
over the world concerning terrorism.6 However, the rights of those who have not
participated in any combat (especially the civilians and the surrenders) need to
be safeguarded. In this regard, the Third7 an the Fourth Geneva Conventions8
play an important role to counter the harsh laws and to make sure that the
prisoners of war are dealt with justly.
Article III9 and the IV Geneva Convention
The prohibition from arbitrary detention is treated as a customary norm in
International Law.10 Article III of the 3rd Geneva convention covers the issues of
treatment of prisoners of war11. Though not prohibiting from the beginning, it
requires the States to keep the following activities “to a minimum”12
“(a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading
treatment;
(d) the passing of sentences and the carryingout of executions without previous
4 English Courts usually do not hold the capacity to interfere through adjudication in a
foreign State’s transactions regarding which the State holds sovereign authority.
5 ibid p. 24-25
6‘Overview of terrorism legislation’, Liberty, protecting Civil Liberties, promoting Human Rights.
<https://www.liberty-human-rights.org.uk/human-rights/countering-terrorism/overview-terrorism-
legislation> accessed 1-6-2016
7 Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949
8 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12
August 1949
9 n 6
10 The prohibition of arbitrary detention had reached the status of a norm of customary
international law: Article 9 of the United Nations Declaration of Human Rights; Article 9 of
the International Covenant on Civil and Political Rights; Article 5 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms ; Article 7 of the
American Convention of Human Rights . Abbasi v Secretary of State para 29.
11 Defined in Article 4 of Convention III includes, Members of the armed forces, other militias and
members of other volunteer corps, persons who accompany the armed forces without actually
being members thereof, Inhabitants of a non-occupied territory, Members of crews, including
masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the
Parties to the conflict, who do not benefit by more favorable treatment under any other provisions
of international law.
12 Commentary of 1960

3. judgment pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.”13
Though it presents a comprehensive list of treatments and the following Article
makes it clear as to who the deserving protected persons are,14 the Article is
silent on the issue of whether people who were not recognised as such should
have a fair trial. Unfortunately, people like Mr. Abbasi were there to suffer due to
the non recognition of their Prisoner of War status by the executives of the USA.
As should be clarified by the letter of the First Secretary of the American
Embassy15 which,
“The United States Government believes that individuals detained at
Guantanamo are enemy combatants, captured in connection with an on-going
armed conflict. They are held in that capacity under the control of U.S. military
authorities. Enemy combatants pose a serious threat to the United States and its
coalition partners.
Detainees are being held in accordancewith the laws and customs of war, which
permit the United States to hold enemy combatants at least for the duration of
hostilities. I can assureyou that the United States is treating these individuals
humanely and in a manner consistent with the principles of the Third Geneva
Convention 1949. Representatives of the International Committee of the Red
Cross are at Guantanamo Bay and meet with detainees individually and privately.
Under international humanitarian law, captured enemy combatants have no right
of access to counsel or the courts to challenge their detention. If and when a
detainee is charged with a crime, he would have the right to counsel and
fundamental procedural safeguards.”
The status of Mr. Abbasi seems ambiguous as he was detained by the executive
authority (President) as the commander in Chief of the US Military but it is
unknown whether he was detained under military order issued by the President
titled, ‘Detention, treatment and trial of certain non-citizens in the war against
terrorism’16 it should be noted here that although an assurance is given that the
facilities are humane, no such guarantee has been provided for the place to be
free from torture.
This self explanatory address had clarified what the reasonable expectations of
the prisoners of war could be. As even the basic legal rights have been denied to
them, what ever aid and support they might be receiving from the US forces shall
be ‘grants’ and not ‘rights’.
13 n 6
14 n 9
15 n 1 p 2-3
16 Presidential Order of 13th Nov, 2001 the requirements of the Order being that such
individual is a member of Al Qaeda or he was engaged in international terrorism or that it is
in the interests of the US that he should be subject to the order.

4. The US press secretary had also made his stance in his address on 2nd Feb,
2002 as,
“Taliban detainees are not entitled to POW status ... they have not conducted
their operations in accordance with the laws and customs of war ... al Qaeda is
an international terrorist group and cannot be considered a stateparty to the
Geneva Convention. Its members, therefore, are not covered by the Geneva
Convention, and are not entitled to POW status under the treaty.”17
This brings about the issue of distinction between the lawful and unlawful
combatant, as it has been judicially clarified in Hamdi v Rumsfield18 both types of
combatants shall be captured and detained by the opponent military forces as
such but it shall only be the unlawful combatants who will be subject to trial and
punishment by the military tribunals for their unlawful acts and hence the status of
prisoner of war has been denied to them. The problem with the denial of prisoner
of war status to a prisoner is that the questions of the legality of the period of
detention, the level of severity of interrogation techniques and extent of torture
are put completely out of the reach of judicial capacity to decide.
Article 5 of the third Convention19 guarantees protection to prisoners whose
status is undecided until it is decided by a competent tribunal and hence it can be
assured that Mr. Abbasi is covered under the International protection at least for
the duration his trial is under way. But how far it is put in practice is yet
undecided. The basic concern of the families in such cases is whether their loved
on is being subjected to torture and the underlying purpose of the Geneva
Conventions is also to safeguard from torture along with inhumane treatment.
Is the Safeguard from ‘Torture’20 an absolute one?
The purpose behind the detention of a captured combatant during war is to
extract some useful information from him that could bring a benefit to the war
operations of the capturing military. For the accomplishment of this purpose,
torture is often used as a tool, it is also used to subdue his resolve or for a
17 n 1 p. 3
18 (1942) 317 U.S. 1 30-31
19 n 6
20 Torture includes such practices as searing with hot irons, burning at the stake, electric
shock treatment to the genitals, cutting out parts of the body, e.g. tongue, entrails or
genitals, severe beatings, suspending by the legs with arms tied behind back, applying
thumbscrews, inserting a needle under the fingernails, drilling through an un-anesthetized
tooth, making a person crouch for hours in the ‘Z’ position, waterboarding (submersion in
water or dousing to produce the sensation of drowning), and denying food, water or sleep
for days or weeks on end. Mendez, Juan E., 2005, “Torture in Latin America,” in Kenneth
Roth and Minky Worden (eds.) Torture: Does it Make us Safer? Is it Ever OK?, New York: The
New Press.

5. confession21. As was recently reported by a September 11 prisoner22 at
Guantanamo Bay Naval Base to the judge of a US Court that he used to
experience intentional noises and vibrations which he believes were caused to
deprive them of sleep. Chemical odours and abusive treatment were also
reported and it was alleged that mental torture was practiced in their camp (no. 7)
while the black site had physical torture.
All mental and physical ill treatments are prohibited by Article 3 of the Convention
III23 but in order for the suffering to be counted as torture and hence covered by
the Article, it should be severe enough. The issue with this concept is that the
judicially defined term can differ from case to case and the duration of torturous
treatment and its endurance varies according to the age, sex and health of victim
and all this has to be considered by the court.24 Though it has been declared by
the International bodies more than once that there could be no justification
whatsoever for treatment in breach of Article III25, in the presence of all these
qualifications that are implied by the judiciary, it could not be guaranteed that the
right is an absolute one.
One remedy available to the detainee is the writ of Habeas corpus26. What could
be the end result in the US court cannot be forecasted and whether they should
attach the same importance to the Geneva Conventions is a matter of judicial
decision (as we shall see that there is a mixed opinion found in case law
regarding the treatment of detainees).
Are Human Rights for the detainee?
This brings us to the question whether on humanitarian grounds alone a chance
to present a writ of Habeas corpus is available especially to the family of the
prisoner who does not have any privileged status otherwise.27 The first and the
21 Ireland v UK (1978) EHRR 25 para 167
22 The Associated Press, ‘Prisoner Tells of 'Mental Torture' in Guantanamo Bay's 'Camp 7',
JUN 2 2016, 4:50 PM, NBC News, <http://www.nbcnews.com/news/world/prisoner-tells-
mental-torture-secret-guantanamo-camp-n584881> accessed 9th June, 2016
23 D. J. Harris, M. O’Boyle and C. Warbrick, law of the European Convention on Human
Rights (1995) p. 61
24 n 18 para 162
25 Michael K. Addo and Nicholas Grief, ‘does Article 3 on the European convention on Human
Rights enshrine absolute rights?’ European Journal of International Law 9 (1998), 510-524
26 The Right of Alien Enemies to Sue in Our Courts, 27 YALE L.J. 104 (1917)
27 Yes, traditionally the right is available. As in the case “United States v. Thomas Williams,
decided by the U.S. Circuit Court for the District of Virginia on December 4, 1813”, The Alien
Enemies Act of 1798 was invoked. In the fully reported decision addressed the availability of
the writ of habeas corpus as a remedy for enemy aliens challenging the resulting detention.
In Lockington's Case, a British resident of Philadelphia had been imprisoned after failing to
comply with a federal marshal's order to relocate to Reading. He sought release on habeas
corpus from the Pennsylvania Supreme Court, but lost on the merits. Two of the

6. most controversial question faced by the family of the detainee will be, ‘where to
file the writ?’ This is so because although the Guantanamo Bay28 is located in
Cuba and hence is outside the territorial jurisdiction of USA, but through the grant
of complete control of land to USA by treaty29 and the exclusive management of
the facilities of GTMO by US army’s deployed soldiers, it is not so simple for the
USA to denounce the jurisdictional capacity over it.30
Scott Packard,31 a US marine deployed to the Guantanamo Bay in 2001 who has
claimed in his article not to be directly involved in the detention and interrogation
of prisoners has supported the role of Guantanamo Bay in being the holding
place of the captives of war on terror. According to him, the US operating base
Khandahar in Afghanistan was the first place where the detainees were held and
their status (either of lawful combatants or not) was determined there but the
base and its facilities were proving insufficient with increasing number of
detainees as the USA needed a place of safe and long term detention for
extracting intelligence that would help in countering future terrorism attempts.
Among others one reason given by the Author32 for the selection of Guantanamo
Bay was ‘a certain freedom from legal review’33 as a non-US soil would keep the
prisoners from claiming rights which the American land guarantees such as the
right to reach the legal system, right of legal representation and rights of
prisoners. This place also known by the famous term, ‘legal equivalent of outer
space’34 was a convenient answer to the US needs.
Pennsylvania justices held that enemy aliens were entitled to a determination of the
lawfulness of their detention and concluded that Lockington was lawfully detained. The
third, Justice Brackenridge, maintained that habeas corpus could not issue to interfere with
executive control of enemy aliens. In the course of his opinion, Justice Brackenridge noted
that a report of a decision (unnamed by him) had been "read from a gazette," in which Chief
Justice Marshall on circuit had granted the writ on behalf of an enemy alien irregularly detained.
Brackenridge respectfully disagreed, arguing that neither state nor federal courts had authority to
review this kind of detention.
Gerald L. Neuman and Charles F. Hobson, ‘John Marshall and the Enemy Alien: A Case Missing
from the Canon’ Columbia Law school
<https://www.law.columbia.edu/law_school/communications/reports/winter06/facforum2>
accessed 9th June 2016
28 Guantanamo Bay Naval Base or GTMO was leased by Cuba to U.S. through the treaty of
1903 for the purpose of forming a naval station
29 Treaty of Relations 1903 granted 45 square miles of Cuban land and water at Guantanamo
Bay for use as a coaling Station and Naval Base its certified copy is deposited at the league of
the nations. <www.woll.org/en/item/11581/> accessed 3-5-2016
30 Castro, F. “Why the Illegal U.S. Base Should Be Returned to Cuba.” Ocean Press. (2001)
31 Scott Packard, ‘How Guantanamo bay became the place the US keeps detainees Sep. 4,
2016 The Atlantic
32 ibid
33 ibid
34 Charles Swift, ‘the former Navy Defense lawyer said in the National Geographic documentary,
‘Explorer inside Guantanamo’ 3rd April 2009 Reuters <www.reuters.com/article/US-guantanamo-
film-sb-idUSTRE53201020090403> accessed 3rd May 2016

7. Is the GTMO base still out of reach of the judiciary?
Though the Guantanamo facilities have been used in Bush’s administration as a
tool to prevent the judicial review in cases of US captured detainees35 This loop
hole had been discovered and mended by the Supreme Court of USA in 2004
while deciding Rasul v Bush.36 In this case, the US army had captured Australian
and British citizens during the war in Afghanistan. The four men were taken to the
Guantanamo Bay for interrogation. When it came to the knowledge of their
families they challenged their detention in the Federal District Court of USA
invoking the due process clause of the Fifth Amendment of the constitution of
USA. The petitioners pleaded that the detainees are held without access to
counsel, trial or charge while arguing that they had neither engaged in combat
against the US nor participated in any terrorist act. The US government defended
their acts by claiming that the petitioners are not US citizens and hence the due
process rights available to the citizens could not be extended to them. The
jurisdiction of the court was also challenged by the Government who contended
that the GTMO facilities physically being outside the territories of USA are out of
jurisdiction of US courts. The District Court took this jurisdictional issue literally
and dismissed the petitions thus ruling out the alien’s37 right to a fair trial.
The Supreme Court of USA while considering this case38 got to the bottom of the
issue and gave a 6-3 ruling whereby the District Court’s decision was overturned.
Justice John Paul Stevens, who wrote the majority decision accepted Cuba’s
‘ultimate sovereignty’ over their own land while at the same time he recognised
that the ‘plenary and exclusive jurisdiction’ enjoyed by the USA over that land
makes it sufficient to guarantee Habeas Corpus rights to foreign nationals living
there solely under the US control.39
The human rights Lawyer Michael Ratner who had represented the appellants in
the case had said regarding the issue, “If you can throw away those rights and
simply grab someone by the scruff of the neck and throw them into some offshore
penal colony because they are non-citizen Muslims, those deprivations of rights
will be employed against all.” Importantly, such a species of abuse was typical,
not of a democracy but “the power of the police state”40
One reason why in Mr. Abbasi’s case (discussed in the beginning of this essay)
the UK Court had refused to consider the alien’s right to sue in the court of USA,
35 n 27
36 (2004) 542 US 466
37 ibid p. 4
38 n 34
39 Brian Duignan, ‘Rasul v Bush’ Encyclopedia Britannica School and library subscribers
<www.britannica.com/Rasul-v-Bush> accessed 5th May 2016
40 Marjorie Cohn, ‘Michael Ratner's Death Is a Loss for Freedom, Peace and Justice’ 17th
May, 2016, Common Dreams
<http://www.commondreams.org/views/2016/05/17/michael-ratners-death-loss-freedom-
peace-and-justice> accessed 9th June 2016

8. was that the District Court’s judgment of the case (Rasul v Bush) had not been
appealed against as yet (the Supreme court judgment had came much later in
time) so the District court’s judgment was followed as a precedent next to
Eisentrager case of 1950.41 At the end of World War II the US Supreme Court
had refused to extend the constitutional human rights to non-resident enemy
aliens that were the German prisoners (including Adolf Hitler42) held under US
control at the Landsberg prison at Germany, on the grounds of their belonging to
the enemy group, held at a location outside the USA. The Court had also
abstained from recognising jurisdiction because doing so would harm the military
affairs of the nation and hence the issue was left for the executive to decide. The
judgment was dissented by a minority led by J. Scalia who contended that the
jurisdiction of Federal Courts is by nature limited and it could by no exceptions
exceed the powers granted by the Constitution or Statute, the constitution being
silent on the issue, it would naturally fall out of the hands of the US Courts.43
Though there were discretionary grants from the executive later.44
The circumstances and situations of 1950’s may have demanded the strict
judicial approach of non-extension of human rights to enemy aliens but as the
International Legislative Body has grown considerably since then, and the
European Union has established itself as a strong pillar of Human Rights laws,
the global judicial recognition of those rights as such was sure to follow at some
point in time.
41 Johnson v Eisentrager (1950) 339 U.S. 763
42 Roger Moorhouse, ‘His Struggle: Hitler in Landsberg Prison, 1924’ (Kindle Single) pdf
43 n 38
44 The width of discretion enjoyed by the executive in this field is exemplified by the
decision of the German Federal Constitutional Court in the case of Rudolph Hess (Case
number 2 BVR4 19/80), 90 ILR 386 , on which Mr. Blake relied as supporting a “duty” of
diplomatic protection. That concerned an application by Rudolph Hess for the Federal
Republic to take diplomatic steps to secure his release on compassionate grounds, some
twenty years after his imprisonment by the International Military Tribunal following the
War. The court accepted that the Federal Republic were under a constitutional duty to
provide diplomatic protection to German nationals, but said that the government enjoyed
“wide discretion in deciding whether and in what manner to grant such protection in each
case”. It had to be left to the government to assess the foreign policy considerations, from
the standpoint of both the interests of the Federal Republic and those of Hess, and decide
on that basis how far further steps were appropriate or necessary. Abbasi v. Secretary of
State. Para 102

9. Conclusion
It is almost certain that the Judiciary would not intercede in political/ military
affairs unless there is a serious violation of human rights. In the present
discussion, it seems as if judicially, a very less importance is assigned to the
conditions of prisoners who have to struggle their way even to the courts who had
shut their doors to them for political reasons. Though the situation has improved
quite a lot from that of post World War II, there are innumerable people like Mr.
Abbasi who are continually struggling for a prisoner of war status that would at
least guarantee an access to the justice system of USA. The need for setting
precedent has increased due to the vagueness of Law and especially the rights
under the Geneva conventions that does not place an absoulte halt on the
practices of torture etc. In these circumstances, the Judgment of Rasul v Bush is
a very positive turn towards a more enlightened view of the International
standards of treatment of detainees and also of assigning the responsibility of
actions to the State under control of which the detainees are kept, after which it
could be expected that there would be development in the direction of detainee
case law.

10. Bibliography
1. Convention for the Protection of Human Rights and Fundamental Freedoms
Rome, 4.XI.1950
2. The Queen on the Application of Abbasi & Anor. v Secretary of State for
Foreign and Commonwealth Affairs & Secretary of State for the Home
Department [2002] EWCA Civ. 1598
3. The Queen on the Application of Al Rawi & Others v The Secretary of State
for Foreign and Commonwealth Affairs & Anor [2006] EWCA Civ 1279
4. Yasin Sepet, Erdem Bulbul v. Secretary of State for the home Department
[2001 EWCA Civ 681]
5. Hamdi v Rumsfield, (1942) 317 U.S. 1 30-31
6. Johnson v Eisentrager (1950) 339 U.S. 763
7. Addo, Michael and Nicholas Grief, ‘does Article 3 on the European convention
on Human Rights enshrine absolute rights?’ European Journal of International
Law 9 (1998), 510-524
8. Brian Duignan, ‘Rasul v Bush’ Encyclopedia Britannica School and library
subscribers
9. Davies, Caroline ‘Jeremy Bamber wins right to European appeal over whole
life sentence.’ The Guardian 19th July 2012
10.Murphy, Ray, Prisoner of war status and the question of the guantanamo bay
detainees 3 Hum. Rts. L. Rev. 257 2003
11.Thomas Poole, Harnessing the Power of the Past? Lord Hoffmann and the
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12.Khan, Arfan International and Human Rights Aspects of the Treatment of
Detainees 69 J. Crim. L. 168 2005
13.Overview of terrorism legislation’, Liberty, protecting Civil Liberties, promoting
Human Rights.
14.Marjorie Cohn, ‘Michael Ratner's Death Is a Loss for Freedom, Peace and
Justice’ 17th May, 2016, Common Dreams
15.Moorhouse, Roger, ‘His Struggle: Hitler in Landsberg Prison, 1924’ (Kindle
Single) pdf
16.Swift, Charles, ‘the former Navy Defense lawyer said in the National
Geographic documentary, ‘Explorer inside Guantanamo’ 3rd April 2009
Reuters