A defining feature of practice since 2001 has been the large-scale detention of persons ‘for reasons related to the conflict’ that the US purports to be waging against al Qaeda and associated groups. While people have been detained in many centres across the world, by the US or by proxy, a major repository for detainees, and symbol of the ‘war on terror’, has been the United States Naval Base in Guantánamo Bay, Cuba. Since early January 2002, an estimated total of nearly 800 people, including nationals of at least forty states, have at some point been transferred to and held in detention facilities at Guantánamo.

The location of the detention centre on Guantánamo Bay, which the United States authorities claimed was beyond US sovereign territory, was an acknowledged attempt to circumvent the application of human rights protections in the United States Constitution and access to US courts. The detainees were labelled ‘enemy combatants’, in support of the view that normal criminal and human rights law did not apply, though the epithet was simultaneously relied upon to justify the non-application of the protective aspects of international humanitarian law. They came to be held in what has correspondingly been described as a ‘legal black hole’ or ‘legal limbo’.