¹ Ibrahim v The King Privy Council Appeal No 112 of 1913 (6 Mar 1914) (from the Supreme Court of Hong Kong) para 18.

² [1978] 2 NZLR 199 (CA). On the principle of male captus bene detentus, see also Arbour, L ‘The Rule of Law and the Reach of Accountability’ The Rule of Law Series, Melbourne University (5 07 2001).Google Scholar

³ The court cited Lord Devlin from Connelly v Director of Public Prosecutions[1964] 2 All ER 401, where he questioned: ‘[A]re the courts to rely on the Executive to protect their processes from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them?’ (442).

⁴ Levinge v Director of Custodial Services(1987) 9 NSWLR 546.

⁵ In State v Ebrahim[1991] 2 SA 553 (S Afr App Div).

⁶ See eg R v Jewitt[1985] 2 SCR 128; O‘Connor v The Queen[1995] 4 SCR 411.

⁷ R v Horseferry Road Magistrates’ Court, ex p Bennett[1993] 3 All ER 138 (HL).

⁸ The American origins for male captus bene detentus go back to the late 19th century in a case called Ker v Illinois 119 US 436 (1836), where a fraudulent banker had taken refuge in Peru. Mr Ker's victim, a Chicago bank, hired a detective agency to bring him to justice. After being abducted and forcibly transferred to the US, Ker argued that his arrest violated due process of law, which would strip any US court of jurisdiction over him. The Supreme Court disagreed and held that no matter how a defendant came before the court, so long as no US laws were broken, the court would have jurisdiction over that defendant. Sixty years later the rule was expanded in Frisbie v Collins 342 US 519 (1952), where an accused was arrested, beaten, and forcibly transferred from Illinois to Michigan (the entire affair took place within the United States). Despite the fact that a number of US laws had been broken in the process of the arrest, the Supreme Court said: ‘This Court has never departed from the rule announced in Ker v Illinois.… that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a “forcible abduction”” 522.

⁹ United States v Alvarez-Machain 504 US 655 (1992), where the Court found it had jurisdiction to prosecute for violation of US criminal laws a fugitive kidnapped by American agents in Mexican territory, notwithstanding adamant protest from the State of Mexico. The majority of the Court held that the abduction was not in violation of an extradition treaty between the US and Mexico and thus Ker applied. Also see United States v Matta-Ballesteros 71 F 3d 754 (9th Cir 1995), where the Court accepted jurisdiction over a fugitive abducted from Honduras by United States Marshalls with the help of Honduran Special Troops. The fugitive alleged he was subjected to torture and other serious due process violations before arriving in the US.

¹⁰ United States v Toscanino 500 F 2d 267 (1974).

¹¹ R v Horseferry Road Magistrates’ Court, ex p Bennett [1993] 3 All ER 138 (HL).

¹² The lawsuit was filed against former CIA director George Tenet on behalf of Khaled El-Masri, a German citizen of Lebanese descent allegedly kidnapped by the CIA and detained in a secret detention centre. The lawsuit alleges that El-Masri was forcibly abducted while on holiday in Macedonia, detained incommunicado, handed over to United States agents, then beaten, drugged, and transported to a secret prison in Afghanistan, where he was subjected to inhumane conditions and coercive interrogation and was detained without charge or public disclosure for several months. Five months after his abduction, Mr El-Masri was deposited at night, without explanation, on a hill in Albania. The corporations that owned and operated the airplanes used to transport Mr El-Masri are also named in the case.

¹³ For instance, the various forms of ‘renditions’ and transfers in the United States and their legality in US and international law were extensively documented in: Association of the Bar of the City of New York, Center for Human Rights and Global Justice Torture by Proxy: International and Domestic Law Applicable to ‘Extraordinary Renditions’(Oct 2004); Center for Human Rights and Global Justice Beyond Guantánamo: Transfers to Torture One Year After Rasul v Bush(NYU School of Law New York 2005).

¹⁴ See eg CAT PE v France (19 Dec 2003) CAT/C/29/D/193/2001, para 5.3, 6.3; GK v Switzerland (12 May 2003) CAT/C/30/D/219/2002 para 6.10.

¹⁵ The standard of the risk of torture is the subject of considerable debate. The United States has taken the stance that torture must be ‘more likely then not’. This standard does not reflect the UK's position: there the standard is a ‘real risk’ of torture, like in international law.

¹⁶ The HRC confirmed this principle in its general comment No 31 (para 12).

¹⁷ Tapia Paez v Sweden Communication No 39/1996, views adopted on 28 April 1997, para 6; see Arkauz v France Communication No 63/1997, views adopted on 9 Nov 1999, para 11.

¹⁸ See Chahal v United Kingdom ECHR Application No 22414/93, judgment of 15 Nov 1996, Reports 1996-V, para 80; Soering v The United Kingdom ECHR Application No 24038/88, judgment of 7 July 1989, Series A No 161, paras 88, 113.

¹⁹ See observations of the governments of Lithuania, Portugal, Slovakia, and the UK in Ramzy v the Netherlands ECHR Application No 25424/05.

²⁰ CAT Agiza v Sweden(2005) para 13.8.

²¹ A (FC) and others v Secretary of State for the Home Department (2004); A and others (FC) and others v Secretary of State for the Home Department (Conjoined Appeals)[2005] UKHL 71 (8 Dec 2005)

²² General Comment No 8. Also see Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 17.

²³ General Comment No 8, para 2. See similarly Brogan v United Kingdom ECHR Application No 11209/84, judgment of 29 Nov 1988, Series A No 145-B, p 33, para 62. See also A and Others v Secretary of State for the Home Department[2004] UKHL 56 (2004) n 1, in which nine law lords on 16 Dec 2004 voted 8 to 1 against parts of the United Kingdom's 2001 Anti-Terrorism, Crime and Security Act under which appellants, all foreign terrorist suspects, had been detained indefinitely without charge or trial since they could not be safely removed to another country.

²⁴ General Comment No 29, para 16. See also for eg IACtHR Advisory Opinion OC-9/87 ‘Judicial Guarantees in States of Emergency’ (Arts 27 (2), 25 and 8 of the American Convention on Human Rights) 6 Oct 1987, Series A No 9, para 31.

²⁵ Angel Estrella v Uruguay Communication No 74/1980, UN Doc CCPR/C/OP/2 (1990) 93; El-Megreisi v Libyan Arab Jamahiriya Communication No 440/1990, UN Doc CPR/C/50/D/ 440/1990 (1994).

²⁶ The Human Rights Committee, in its General Comment No 29, indicates that the prohibition of unacknowledged detention is absolute due to its status as a norm of general international law (para 13 (b)).

²⁷ See for instance Rome Statute, Art 7 (1) (i) and the Declaration on the Protection of all Persons from Enforced Disappearances, United Nations, GA res 47/133, UN Doc A/RES/47/133, 18 Dec 1992, preamble. The 1994 Inter-American Convention on Forced Disappearances of Persons was the first legally binding instrument in this field.

²⁸ Quinteros v Uruguay (107/1981, para 14); also El-Megreisi v Libya (Report of the Human Rights Committee, Vol II, GAOR, 49th Session, Supplement 40 (1994), Annex IX T, paras 2.1–2.5); Mojica v Dominican Republic(449/1991, para 5.7). See also European Court of Human Rights (Kurt v Turkey Eur Ct Hum Rts Case No 15/1997/799/1002, 25 May 1998, para 134); The Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of 29 July 1988. Series C No 4, para 187); Working Group on Enforced Disappearances, UN doc E/CN.4/1983/14, para 131. Also Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly in 1992, preamble.

²⁹ The EctHR is well aware of the exigencies of terrorism investigations but nonetheless has set limits, see Öcalan v Turkey (Application No 46221/99) 12 May 2005; Brogan and Others v the United Kingdom (29 Nov 1988) Series A No 145-B, p 33, § 61.

³⁰ Hamdi v Rumsfeld, 542 US 507 (2004) 124 S Ct 2633, 2655 (2004).

³¹ Many lawsuits were filed in the US, and elsewhere. The ECtHR also awarded considerable damages recently for torture against Russia in the case of Mikheyev v Russia Application No 77617/01 (26 Jan 2006).

³² Hamdi v Rumsfeld (n 30) (Souter, J, concurring in part, dissenting in part, and concurring in the judgment).

³³ See reports of such occurrences since the mid-1970s documented by Robert K Goldman, independent expert on the protection of human rights and fundamental freedoms while countering terrorism, in his report to the 61st session of the Commission on Human Rights, E/CN 4/2005/103, 8.

³⁴ L Arbour (n 2).

³⁵ A and Others v Secretary of State for the Home Department (2004) (n 23).

³⁶ A (FC) and others v Secretary of State for the Home Department (8 Dec 2005) (n 21).

³⁷ In its report of 5 Dec 2005 (E/CN.4/2006/7/Add.2) to the Commission on Human Rights, the WG stated that it was ‘gravely concerned about the following elements, which undermine the security certificate detainees’ rights to a fair hearing, to challenge the evidence used against them, not to incriminate themselves, and to judicial review of detention:

• The security certificate procedure applies only to suspects who are not Canadian citizens; in fact, all four men currently detained under security certificates are Arab Muslims;

• If the person certified is not a permanent resident, detention is mandatory;

• The length of this detention without charges is indeterminate; the duration of the detention of the four persons currently detained under a security certificate ranges from four to six years;

• The only way out of detention appears to be deportation to the country of origin; all four men currently detained argue—not without plausibility—that they would be exposed to a substantial risk of torture in case of deportation;

• The evidence on which the security certificate is based is kept secret from the detainee and his lawyer, who are only provided with a summary of the information concerning them. They are thus not in a position to effectively question the allegations brought against him;

• The Federal Court judge tasked with confirming the certificate has no jurisdiction to review, on the merits, whether the certificate is justified. His jurisdiction is limited to assessing the ‘reasonableness’ of the Government's allegations;

• When the Federal Court considers that a security certificate is reasonable its decision is final and cannot be appealed, removal is ordered and the person is detained pending execution of the order ‘without the necessity of holding or continuing an examination or an admissibility hearing’. The person named in it may not apply for refugee protection. On the other hand, if the Federal Court considers the security certificate not reasonable, the two Ministers can at any time issue a new certificate. According to the information gathered by the Working Group, such new certificate can be based on a new interpretation of the same facts underlying the quashed certificate.

One of the most troubling aspects of the security certificate process is the delay with which non-citizens under a security certificate can challenge their detention.’