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In 1988, the Iraqi government under the leadership of Saddam Hussein, launched a military campaign against the Kurdish population residing in northern Iraq. In eight operations from February until September of that year, both conventional and chemical weapons were deployed against the citizens of Kurdish villages resulting in the deaths and injury of hundreds of thousands. Others were executed in the following raids, their homes were looted and entire villages were burned to the ground. Others still were transported to prison camps where they were starved and detained in inhumane conditions. This campaign became known as the Al Anfal campaign and was the subject of the Iraqi High Tribunal’s second case  (the first one being the Al Dujail-trial). 

Seven defendants, including Saddam Hussein and his cousin, nicknamed Chemical Ali, were brought before the Court. Charges against Hussein were dropped when he was executed in the course of the trial as a result of his conviction in another proceeding. By a verdict of 24 June 2007, the Tribunal convicted five of the remaining six defendants, one of whom was acquitted for lack of evidence. Three, including Chemical Ali and two military commanders, received death sentences; the others received cumulative sentences that essentially amounted to life imprisonment. The present decision by the Appellate Chamber of the Tribunal confirmed the trial verdict and dismissed all appeals.

In one of the first suits filed before the US courts challenging the US practice of 'extraordinary rendition', Syrian-born Canadian national Maher Arar lodged a complaint in January 2004 arguing that his civil rights had been violated. In 2002, Arar was detained by immigration officials at a New York airport while travelling home to Canada from Tunisia. Following a period of solitary confinement, Arar was deported to Syria where he was allegedly tortured before making false admissions of terrorist activity.

On 16 February 2006, the US District Court dismissed Arar’s claims, finding that national security and foreign policy considerations prevented the Court from holding US officials liable, even if the ‘extraordinary rendition’ violated international treaty obligations or customary law. 

The US District Court of Appeals for the Second Circuit affirmed the judgment of the District Court. It held that adjudicating Arar’s claims would interfere with national security and foreign policy. In his partial dissent, Judge Sack found that this provides federal officials with licence to “violate constitutional rights with virtual impunity”. The Court of Appeals also found that as a foreign national, Arar had no constitutional due process rights.

When Hamas, a Palestinian armed resistance group, came into power in Gaza, southern Israel was increasingly subject to heavy missile attacks. On 27 December 2008, the Israeli Defence Forces (IDF) began a large-scale military operation that Israel initiated in the Gaza Strip in order to stop the shooting of mortars. During that operation, also known as “Operation Cast Lead”, the IDF entered the Gaza Strip and attacked targets used by Hamas. In January 2009, two organisations filed a complaint against Israel and claimed that during the operation, the IDF did not protect medical centres and personnel, did not help with the transfer of wounded people, and did not supply electricity to the Gaza Strip. The Israeli Supreme Court found that Israel was acting reasonably and had not violated any international rules.

Sufyian Barhoumi is an Algerian nation who was allegedly providing assistance to al-Qaeda through buying certain electronic components needed for the building of remote-controlled explosive devices and through providing training to build such bombs. In July 2005, Barhoumi filed a petition for a writ of habeas corpus (a legal action allowing a detained person to challenge the legality of his/her detention).

The District Court’s opinion remained confidential but in the subsequent judgment of the Court of Appeals, its findings and reasoning has been summarized. The District Court denied Barhoumi’s petition on the grounds that he was properly detained under the Authorization for Use of Military Force of 2001.

Al Bihani, Yemeni citizen and Saudi Arabian national, travelled to Afghanistan in May 2001 on jihad (holy war). He became a member of the 55^th Arab Brigade and, by his own admission, acted as a cook. The Brigade carried out a number of operations in support of the Taliban against the United States and its allies in the Northern Alliance. Al Bihani was transferred to the custody of the United States Armed Forces and thereafter to Guantanamo Bay following the surrender of his unit. Alleging the illegality of his detention at Guantanamo, al Bihani petitioned the District Court for the District of Columbia for a writ of habeas corpus. His petition was denied on the grounds that he was an “enemy combatant” within the meaning of the definition of such decided by the Court in its earlier case of Boumedienne v. Bush. On appeal, the Court of Appeals for the District of Columbia dismissed Al Bihani’s appeal.