Book contents
- Frontmatter
- Dedication
- Contents
- Preface to the second edition
- Preface to first edition
- Select table of cases
- Select table of treaties
- Select Table of resolutions, reports and other sources
- Select list of abbreviations and acronyms
- 1 Introduction
- Part I Terrorism and responsibility
- Part II Responding to terrorism: legal framework and practice
- Part III Case Studies
- 8 Case study I: Guantánamo Bay detentions under international human rights and humanitarian law
- 9 Case study II: Osama bin Laden – ‘justice done’?
- 10 Case study III: extraordinary rendition
- 11 The role of the courts: human rights litigation in the ‘war on terror’*
- 12 Conclusion
- Select bibliography
- Index
- References
11 - The role of the courts: human rights litigation in the ‘war on terror’*
Published online by Cambridge University Press: 05 April 2015
- Frontmatter
- Dedication
- Contents
- Preface to the second edition
- Preface to first edition
- Select table of cases
- Select table of treaties
- Select Table of resolutions, reports and other sources
- Select list of abbreviations and acronyms
- 1 Introduction
- Part I Terrorism and responsibility
- Part II Responding to terrorism: legal framework and practice
- Part III Case Studies
- 8 Case study I: Guantánamo Bay detentions under international human rights and humanitarian law
- 9 Case study II: Osama bin Laden – ‘justice done’?
- 10 Case study III: extraordinary rendition
- 11 The role of the courts: human rights litigation in the ‘war on terror’*
- 12 Conclusion
- Select bibliography
- Index
- References
Summary
Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.
(National Defense Strategy for the United States of America, 2005)On June 12, 2008, the Supreme Court of the United States decided that persons detained by the US in Guantánamo Bay had the constitutional privilege of habeas corpus. The recognition that all detainees are entitled to this basic right, irrespective of their nationality, designation as ‘enemy combatants’, or offshore location, was hailed as a victory for the rule of law. Jubilation was somewhat tempered by the fact that it took six years to decide that detainees were entitled to a protection that would normally guarantee judicial access within hours, days, or maybe weeks.
Whether you see the Boumediene judgment as a historic victory for justice or a reminder of its woeful failure, it tells a story. It provides a graphic illustration of how far executive violations of human rights have gone in the name of security, but also of the nature of the judicial response: deferential and perhaps faltering at first, gradually ceding to a more invigorated role as a matter of last resort. This judgment is only one part of a burgeoning mass of litigation worldwide, each component of which tells its own story. Cases vary vastly in their nature and goals – ranging from challenging unlawful practices and preventing wrongs to gaining access to information and securing reparation or judicial oversight itself, for example – as they do in their processes and outcomes. They occur in and reflect the vastly different political and cultural contexts as well as the diverse legal and constitutional systems from which they emerge. This chapter will present a necessarily brief survey of some of this diverse body of practice of human rights litigation to date on the national, regional and international level.
- Type
- Chapter
- Information
- The ‘War on Terror' and the Framework of International Law , pp. 846 - 899Publisher: Cambridge University PressPrint publication year: 2015