In the shadow of Lord Haw Haw: Guantánamo Bay, diplomatic protection and allegiance

• Published in: Public law 2011-01, Vol.1, p.115-138
• Main Author: Murray, C.R.G.
• Format: Article
• Language: English
• Subjects: Basic rights; Constitutional law; Diplomacy; Human rights; Legal norms; Legal protection; Nationality; Obligation; Prisoners; United Kingdom
• ISSN: 0033-3565

In the cases of Abbasi1 and Al Rawi,2 the claimants argued that the courts should order the British Government to petition the United States for the release of detainees held without trial at Camp Delta in Guantánamo Bay, Cuba. They contended that the continued detention of these individuals constituted a breach of their right to liberty and of the prohibition of torture and inhuman and degrading treatment under the European Convention on Human Rights (ECHR). But such claims could not overcome the lack of a causal connection between the United Kingdom and the treatment of the detainees and the 'especially broad margin of discretion' enjoyed by the executive in the area of diplomatic relations.3 Although the courts accepted that the detainees' circumstances were 'acute',4 the tone of the Al Rawi decision in particular suggests that the judges considered that these cases amounted, in Lord Hoffmann's jaded expression, to little more than 'the continuation of protest by other means'.5 This overview suggests that the detainees in Abbasi and Al Rawi were not simply trapped in a 'legal black hole',6 subject to a regime which sought to deny their right to habeas corpus under the United States' Constitution,7 but that they were poorly served by the speculative employment of human rights arguments before the English courts. Such a conclusion, however, undervalues the impact of the detainees' allegations beyond the courtroom. Writing in regard to Abbasi, Philippe Sands, QC, emphasised that this case 'put the British Government on the back foot, particularly in its relations with the media, which was starting to cover the story'.8 The detainees' claims of arbitrary detention and torture captured public attention in the United Kingdom, fomenting the political pressure which ultimately persuaded the British Government to call for Camp Delta's closure and to seek the release of detainees with a direct connection to the United Kingdom.9 Nonetheless, these cases raise questions as to whether such efforts to air 'strong arguments in the context of political debate'10 distracted the detainees' legal teams from addressing less 'telegenic' arguments which may have carried greater legal weight. After all, as Laws L.J. accepted in Al Rawi, within part of English law as little-considered as diplomatic protection 'the law is not short of surprises'.11 In both cases, counsel for the claimants overlooked the 'venerable'12 constitutional principle which links the state's responsibili