For centuries courts of a nation engaged in war prevented aliens residing in the enemy’s territory from seeking redress from them. As the recognition in the fundamental right of access to courts grew over the centuries, judges carved more and more exceptions to this rule. The changing nature of warfare in the 21st century presented further challenges to this traditional rule. Nevertheless, courts across democratic jurisdictions have thus far refrained from defining an overall alternative rule. Rather, they have resorted to solving specific cases through narrowly tailored decisions. After surveying the developing jurisprudence in regard to access of enemy aliens to courts, this chapter suggests an alternative rule compliant with contemporary human rights law and relevant to 21st war realities. It goes on to consider why courts are hesitant to declare the traditional law void and what can be learned from this hesitance as to the interaction between war and legal institutions.
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See: Article 8 of the Universal Declaration on Human Rights, 1948 (“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”); Article 14 of International Covenant on Civil and Political Rights, 999 UNTS 171, 1966 (“everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal…”); Article 6(I) of the European Convention on Human Rights (“Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”).
This article deals mainly with enemy aliens and unlawful enemy combatants. These categories are governed by the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949). There is no detailed discussion regarding enemy combatants or prisoners of war, which are governed by the Third Geneva Convention relative to the Treatment of Prisoners of War (1949).
On the role of courts in national emergencies see in this volume: Barak, Human Rights in Times of Terror, and Tassopoulos, Political Emergencies as Challenges to the Impartiality of Public Law.
The authors feel compelled to quote another striking statement in this case: “A Jew may sue at this day, but heretofore he could not, for then they were looked upon as enemies. But now commerce has taught the world more humanity” (pp. 282–83).
The House of Lords ruled that undoubtedly non-enemy subjects, the Dutch citizens were to be treated as enemy aliens since they were domiciled in occupied enemy territory (“an alien enemy… does not mean a subject of a state at war with this country, but a person, of whatever nationality, who is carrying on business in, or is voluntarily resident in, the enemy's country… Even a British subject, if voluntarily resident in enemy territory, would be treated at common law as unable to sue, for the denial of persona standi in judicio does not turn on allegiance, but on locality…it is not a question of nationality or of patriotic sentiment.”).
However, the law regarding access to courts of enemy corporations is inconsistent. In Sovfracht, 1 All ER 76 (1943) the court treated a firm, incorporated in the Netherlands, as an enemy alien lacking access to courts in the UK. For a study summarizing the right of access to courts of enemy corporations in Britain, the US, France and Germany, see Paul Weidenbaum, Corporate Nationality and the Neutrality Law, 36(6) Mich. L. Rev. 881 (1938).
The common-law rule prohibiting access to courts is a preliminary plea. Accordingly, this rule should be raised at the first opportunity in the defense plea.
The Court (Gould, Blackstone and Nares JJ) denied a habeas petition of Spanish sailors held as prisoners of war on British territory. It should be noted that their allegation was that they are wrongfully held as prisoners of war. See also: Ex Parte Weber, 1 KB 280 (1916); R v. Supt of Vine Street Police Station, Ex Parte Liebmann, 1 KB 268 (1916).
Garner, supra note 5 at pp. 47–56.
Ibid., at 51–52.
Garner, supra note 5 at pp. 58–59.
This deviation from the civil law rule may be explained by the outburst of militarism and nationalism that characterized old Germany, especially after its unification in 1871 under the leadership of Otto von Bismarck, up to and later during World War II.
Garner, supra note 5 at pp. 56–58.
McNair, supra note 5; Roxburgh, supra note 5; Garner, supra note 5.
Eric A. Engle, Alien Torts in Europe? Human Rights and Tort in European Law, Bremen University, 2005 (available: http://www.zerp.uni-bremen.de/english/pdf/dp1_2005.pdf); Rainer Hofmann & Frank Riemann, International Law Association Committee on Compensation for Victims of War Compensation for victims of war—Background Report (ILA 2004) (available at: http://www.ila-hq.org).
The Prize Cases, 67 U.S. 635 (1862). In these cases the US Supreme Court have delved into, among others, the questions of who is an “enemy” and what is a “state of war”. See also the references in Johnson v. Eisentrager, 339 U.S. 763, at footnote 52 .
See for instance: Article 21 to the Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, Promulgated as General Order No. 100 by the President Lincoln, 24 April 1863. See also Articles 20, 24. For the Lieber Code see Elihu Root, Francis Lieber, 7(3) Amer. J. Int'l L. 453 (1913); George B. Davis, Doctor Francis Lieber's Instructions for the Government of Armies in Field, 1(1) Amer. J. Int'l L. 12 (1907). For a similar approach see Prize cases, 67 U.S. 635.
For the approach taken by the courts during this period see E. M. Borchard, The Right of Alien Enemies to Sue in Our Courts, 27 Yale L. J. 104 (1917); Gordon, The Right of Alien Enemies to Sue in American Courts, 36 Ill. L. Rev. 809 (19XX); Battle, Enemy Litigants in Our Courts, 28 Virginia. L. Rev. 429 (1942); Rylee, Enemy Aliens as Litigants, 12 Geo. Wash. L. Rev. 55 (1944); Habeas Corpus Protection Against illegal Extraterritorial detention, 51(3) Columbia L. R. 368 (1951); Willis B. Shell, Habeas Corpus: Jurisdiction of Federal Courts to Review Jurisdiction of Military Tribunals When the Prisoner is Physically Confined Outside the United States, 49(6) Michigan L. R. 870 (1951).
From the case: “In war, the subjects of each country were enemies to each other, and bound to regard and treat each other as such… it is one validated by the actualities of modern total warfare… in war every individual of the one nation must acknowledge every individual of the other nation as his own enemy—because the enemy of his country”. For a similar approach see also In re Territo, 156 F.2d 142, 145 (9th Cir. 1946).
In this case, the courts denied access to civil courts (the plaintiffs were tried by a military commission) in a writ of habeas corpus requested by German citizens, based on the contention that they were “unlawful combatants” and, thus, were ineligible to civil judicial proceedings. See also In re Yamashita, 327 U.S. 1 .
For the prohibition rule of enemy aliens' access to US courts and civil suits see Ex parte Colonna, 314 U.S. 510 (1942); Ex parte Kumezo Kawato, 317 U.S. 69 (1942).
International Covenant on Civil and Political Rights, 999 UNTS 171 (1966).
Article 4 likewise states that during states of emergency, there are rights that do not suffer infringement but no mention is made in this regard to access to court during war.
Hague Regulations Respecting the Laws and Customs of War on Land (1907).
The relevant articles with respect to the right of access to courts of enemy subjects in occupied territories are Articles 42–56, especially Articles 43–48.
This interpretation is based on the covenant's authors' original intent and the textual interpretation of the article. For this and the article's development history see Thomas E. Holland, Article 23(h), 28 L.Q.R. 94 (1912) 94; Thomas E. Holland, The Laws of War on Land (1908) 44; Lassa F. L. Oppenheim, The League of Nations (_) 45–55; K. Strupp, Die Bedeutung des Artikels 23 h der Haager Landkriegsordnung und die anglo-amerikanische Auffassung vom Einfluß des Krieges auf die schuldverhältnise Privater, 23 Zetschrift für Internationales Recht, Abt. II, 118–121 (1913).
This interpretation is based on the context of the article within the document. The article is placed in the chapter on the “means of injury the enemy” during “hostilities”. See George B. Davis, The Amelioration of the Rules of War on Land, Amer. J. Int'l. L. 63, 70 (1908); Pearch Higgins, The Hague Peace Conference and Other International Conferences Concerning the Laws and Usages of War: Texts of Conventions with Commentaries (1909) 235; G. Von Glahn, Law Among Nations (4th ed., 1981) 61; G. von Glahn, The Occupation of Enemy Territory (1957) 108; C.M. Picciotto, Alien Enemy Persons, Firms and Corporations in English Law, 27 Yale L. J. (1917–1918) 167; Stone, supra note __ at 441–443; Trotter, supra note 14 at 20; Holland, supra note 124 at 98. It should be noted that Profs. Holland, Stone and Von-Glahn suggested canceling Article 23(h) due to its ambiguity.
Holland, supra note 54 at 94–96; Holland, supra note 54 at 5; Garner, supra note 18 at 29; Oppenheim, supra note 44 at 309–313. In his letter to the British Foreign Office, Prof. Oppenheim wrote that Article 23(h) annuls the prohibition on an enemy alien's access to court, and that the British interpretation currently contradicts the international law rule.
Article 8(2)(b)(XIV) to the Rome Statute of the International Criminal Court (2002).
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949).
According to the Commentary to the Geneva Convention, Article 5 is not a general provision regarding access to court of enemy aliens but, rather, a specific provision regarding enemy aliens' protection only in criminal charges against him by state-party.
Ali Yusuf & Al Barakaat International Foundation and Abdullah Kadi v Council of the European Union and Commission of the European Communities (2005, The Court of First Instance of the European Communities, Second Chamber, Luxemburg) (at: http://curia.eu.int). To the plaintiff’s appeals see Case before the Court of Justice, C-415/05 P (Ahmed Ali Yusuf v Council and Commission)—Appeal against Judgment of the Court of First Instance (Council of the European Union, Brussels, 5 January 2006).
One example is the writings of sociologist Amitai Etzioni calling for a more sympathetic view to national security concerns, while maintaining liberal principles. See: Amitai Etzioni, Security First: For a Muscular, Moral Foreign Policy (2007).
Most notably “the Patriot Act”, Pub. L. no 107-56, 115 Stat. 272 (2001); but also among others: Terrorism Prevention and Investigation Measures Act 2011 in the United Kingdom; in Germany the Gesetz zur Änderung der Vorbereitung von schweren staatsgefährdenden Gewalttaten I BGB 926 (2015).
Id., § 23.
Id., § 28.
Id., § 28.
For an analysis of the Obama administration's commitment to shut down the facility and its failure to do so, see: Priscila Alvarez, Will Guantanamo Bay's Prison Ever Close? Theatlantic.com (Dec. 21, 2016).
Order Establishing Combatant Status Review Tribunal (Memorandum from Paul Wolfowitz, July 7, 2004); Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base, Cuba (Memorandum of Gordon England, Secretary of the Navy, 2004).
A Status of “enemy combatant” and even “unlawful combatant” can be assigned to an American citizen as well. See Cert. Denied, 352 US 1014 (1957); Quirin, 317 U.S. 1 at 37–38; In re Territo, 156 F.2d 142 at 145; Milligan, 71 U.S. 2 at 762.
Article 1 to the Detainee Treatment Act of 2005, Pub.L. 109–148, 119 Stat. 2739.
Articles 2 and 3 to the DTA.
On the date of its enactment (December 30, 2005), certiorari was already granted.
See also Justice Scalia dissenting opinion at 2819.
For later cases see HCJ 574/82 Al-Nawar v. Minister of Security SC 39(3) 449 (1985) and HCJ 4487/98 Asaf v. Israel (1998).
As determined by executive order under the Terror Prevention Ordinance (1948).
It should be noted that this case did not come under the legislation discussed in Adalah v. Minister of Defense (supra, fn. 88) as the alleged torts were inflicted on the appellee occurred before the period covered by the law.
As required by Section 8 of Israeli's Basic Law: Human Dignity and Freedom.
Indeed, the court mentioned, Dirani filed several claims regarding his detention conditions with Israeli courts, all of which were dealt with and some of which were accepted, and in none of them the issue of enemy alien's right of access was disputed.
Dirani III, p. 120
Dirani III, p. 56.
On the concept of necessity as a justification to divert from entrenched constitutional norms and notions see in this volume Hadjigeorgiou & Kyriakou, Entrenching hegemony in Cyprus: The doctrine of necessity and the principle of bicommunality, and Gurpuran, Constitution and Law as instruments for normalising abnormalcy: States of Exception in the Plurinational Context.
The war/peace dichotomy was brought into question as early as the mid-20th century, when a new category of “status mixtus” was suggested. See Yoram Dinstein, War, Aggression and Self-Defence 15 (5th ed., 2012).
For the narrow application of the Milligan case see as well as others, see: Andrew Kant, Judicial Review for Enemy Fighters: The Court's Fateful Turn in Ex parte Quirin, The Nazi Saboteur's Case, 66(1) Vanderbilt L. Rev. 153, 204 (2013).
Dirani, para 101 to President Grunis' opinion.
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Peled, R., Orgad, L., Rabin, Y. (2020). The Law Governing the Right of Enemy Aliens’ Access to Courts. In: Albert, R., Roznai, Y. (eds) Constitutionalism Under Extreme Conditions. Ius Gentium: Comparative Perspectives on Law and Justice, vol 82. Springer, Cham. https://doi.org/10.1007/978-3-030-49000-3_10
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