After seven years without trial, Guantanamo Bay Prison detainee Binyam Mohamed has been released from the controversial prison.
I'm aware the when David Hicks was released, there was an enforced media ban on him which prevented him from speaking publicly about his ordeal.
Since, his release - Mohamed's lawyers have requested that President Obama release documented evidence (including photographs) which detail abuse and torture inflicted upon Mr. Mohamed during his incarceration.
My question is: Can Binyam Mohamed sue the United States government? If so, on what grounds?
I'm aware the when David Hicks was released, there was an enforced media ban on him which prevented him from speaking publicly about his ordeal.
Since, his release - Mohamed's lawyers have requested that President Obama release documented evidence (including photographs) which detail abuse and torture inflicted upon Mr. Mohamed during his incarceration.
My question is: Can Binyam Mohamed sue the United States government? If so, on what grounds?
That is an interesting question. The US was plain clever when it coined the term "unlawful enemy combatant", now before any individual held in Guantanamo can bring any action against the US, the first thing that needs to be addressed in court is whether the term "unlawful enemy combatant" is legal and if not, whether the individuals are therefore to be treated as civilians or POWs.
ReplyDeleteI don't know if an individual can sue a government for breach of the Geneva Conventions because that would probably be Binyam Mohamed's best bet. He can't rely on US civil rights law because he is probably an enemy combatant and not a mere civilian (if an when that question is addressed). In that case it would be difficult for Bin Mohamed to take the US to court for breach of the Geneva Conventions because such an action falls within the jurisdiction of the International Court of Justice and only states can bring actions against other states in the ICJ, not individuals. So maybe his state can bring an action against the US and I certainly hope some state has the balls to do that! Maybe there is a way for an individual to bring an action against a state, within that state, for breach of the Geneva Conventions if they Conventions are codified in the state’s domestic legislation, which I believe are the case with the USA. But then again, if it is that simple, why hasn’t anyone got around to it yet?
The other way is for the International Criminal Court to prosecute individuals within the Bush Government for serious breaches of the Geneva Conventions. Only way that happens is if 1) a state refers the issue to the ICC, 2) the ICC prosecutor investigates and refers a situation or 3) if the Security Council refers the issue. The only reason that would not happen is plain politics!
It’s just ridiculous how the individuals are in limbo with no apparent rights to enforce, the only organisations powerful enough to do anything about it ie state parties and UN, are too fucking scared!
Also, v disheartening to hear that Obama does not intend to pursue investigations on allegations of torture at Guantanamo.
1986.
I just realised my last comment didn't address the torture aspect of the case. In which case, regardless of Mohamed's status (unlawful combatant or otherwise) I think he may be able to bring his complaints to the UN Committee against Torture, however what powers the Committe has to hold states accountable I am unsure of. They probably just verbally reprimand the state, I also know, the Committee's past cases have not been too promising in finding a conclusive definition of torture.
ReplyDeletePossibly Mohamad can bring an action in US domestic courts against the state for violation of its domestic torture legislation however there are several issues here:
1)Is Mohamed an unlawful combatant (if such a term infact legally exists), POW or civilian. To my understanding, only if civillian can he go to US domestic courts
2)i)If Mohamed proved to be cilvillian: Does Guantanamo Bay fall under US legal jurisdiction, the Bush Government argued "no" previously and that because of this detainees can't rely on US law- ie Guantanamo is just under US physical control but none of its law apply there, very technical argument (aka de jure and de facto control i think).
ii)If Mohammed POW: Can petition the ICC through means previously explained or get his country to lodge a case in the ICJ
iii) If unlawful enemy combatant: he is pretty much fucked but can still petition Committee against torture
3) What is torture? Do the acts that took place there amount to torture- no conclusive case law.
This is me thinking aloud, I hope Mohamed's lawyers go the distance so we can see what plays out.
1986.
1986, you are the best! Will check what you've written, when im not scramming.
ReplyDeleteCheers,
Spowf