What Human Rights Law Could Do: Lamenting the Absence of an International Human Rights Law Approach in Boumediene & Al Odah
Israel Law Review, Vol. 41, pp. 562-595, 2008
35 Pages Posted: 20 May 2008 Last revised: 30 Jan 2009
In December 2007 the US Supreme Court heard oral arguments in its latest Guantánamo Bay cases, Boumediene vs. Bush and Al Odah vs. United States. Interestingly, the argumentation offered in this litigation was almost exclusively domestic - international human rights law did not feature in spite of its capacity to add significantly to the weight and persuasiveness of the arguments of the petitioners. In respect of both the geographic scope and the content of constitutional standards, international human rights law has a well-developed body of jurisprudence that, this article argues, ought to have been advanced by counsel for the petitioners. This article both exposes the potentially significant international human rights law arguments that could have been advanced and explores some possible reasons for the marginalisation of this body of law. The article concludes that this strategic decision on the part of counsel for the petitioners robbed the US Supreme Court of an opportunity to assert the relevance of human rights law to the "War on Terrorism" and to expand on the relationship between international and domestic constitutional standards and, for those reasons, is to be lamented.
Keywords: War on Terrorism, habeas corpus, Guantanamo Bay, Boumediene, Al Odah, international human rights law, terrorism
JEL Classification: K10, K19, K33, K41
Suggested Citation: Suggested Citation