Abstract

The current war on terror has an unprecedented dimension erosive of the international law distinctions between armed conflicts and peacetime civilian disputes. Domestically, United States federal courts have developed a constitutional and statutory jurisprudence that distinguishes between national security issues and domestic questions. The attrition of erstwhile internationally-honoured distinctions has permitted the United States to argue that the Guantánamo Bay detainees may be held indefinitely without charge. Extending constitutional guarantees to the Guantánamo detainees, in Hamdi v. Rumsfeld (2004) and later in Hamdan v. Rumsfeld (2006) the U.S. Supreme Court has accorded definitive construction to the Geneva Conventions (Common Article 3), has applied habeas corpus to detainee challenges, and has precluded presidential unilateralism in the conduct of war. Most recently, the Court sought more than just authorisation from the legislature. In Boumediene v. Bush (2008), the Court invalidated a U.S. federal law passed by Congress and signed by the President because it denied the detainees access to habeas corpus. This talk will address the changing landscape of detention law and international human rights law — especially the role of international law history — as recognised by American courts; and whether the spate of detainee challenges from Guantánamo Bay has constitutionalised the diffusion of international human rights law in U.S. domestic courts.