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A and others versus the United Kingdom’s Secretary of State for the Home Department (I) is the first of two House of Lords opinions in about a year time that urged the U.K. to change its laws on the treatment of and criminal proceedings against terrorism suspects. The current case revolved around nine defendants – Mahmoud Abu Rideh, Jamal Ajouaou and seven unnamed individuals, all foreign (non-U.K.) nationals living in the U.K. – who were detained without trial in the Belmarsh prison because they were linked to terrorist organisations and, therefore, constituted threats to national security. Since none of them has been the subject of any criminal charge they challenged the lawfulness of their detention as violation of Article 5(1)(f) of the European Convention on Human Rights (ECHR).

The House of Lords opined that the possibility of indefinite detention of foreign nationals indeed breached Article 5(1)(f) ECHR. On the other hand, it agreed with the government’s standpoint that constant terrorism threats could constitute an immediate danger and imminent threat to national security; such public emergency is a lawful basis to derogate from Article 5 (see Article 15 ECHR). However, in the current case the measures were disproportionate by nature and discriminatory in their effect (national terrorist suspects were not affected, while foreign suspects could be detained indefinitely – unless they would voluntarily leave the country, in which case they were free to go). Therefore, the House of Lords decided that section 23 of the Anti-terrorism, Crime and Security Act 2001, which allowed for indefinite detention of foreign suspects who could not leave the U.K. (for example because they would be tortured in their own country) was declared incompatible with the U.K.’s international human rights obligations enshrined in the ECHR.

In 1999, intense violence broke out in Indonesian occupied East Timor as a referendum was held in which an overwhelming majority of Timorese voted in favour of the country’s independence. These periods of violence were characterised by acts of murder, persecution, displacement and torture of independence supporters. Much of the violence was carried out by the Indonesian armed and police forces, as well as local militia groups.

On polling day, a schoolhouse was attacked by members of the Indonesian army who proceeded to shoot bullets into the air and stab three persons before leaving with the ballot boxes. The Accused, Domingo de Deus, was a member of the Indonesian armed forces. Although he did not directly commit the stabbing and he was himself unarmed, the Special Panels for Serious Crimes convicted him on two counts of murder and one count of attempted murder as crimes against humanity due to his participation in a joint criminal enterprise to suppress the independence supporters. At sentencing, he was convicted to 2 years’ imprisonment, with the majority of the judges finding that his act of saving his relatives from the polling station merited a reduced sentence. 

During Indonesia’s occupation of East Timor from 1975 until 2002, the Indonesian armed forces and numerous militia groups in support of Indonesian autonomy perpetrated widespread abuses against the Timorese civilian population, targeting especially those suspected of being pro-independence supporters.

The Accused, Francisco Perreira, was a member of the Mahidi militia group who operated a detention camp where pro-independence supporters were routinely detained, beaten, and subject to harsh living conditions including lack of food, water and sleep. Perreira was convicted by the Special Panels for Serious Crimes for the persecution of four detainees at the camp, whom he had tortured or inflicted severe physical suffering upon.  He was further convicted of the attempted murder of another detainee who had succeeded in escaping. Perreira had pursued the victim with other militia members to a riverbank where, acting upon orders to kill, he stabbed the victim. However, his conduct was not the cause of death as the victim was also shot by another militia member. As a result, at sentencing, Perreira was only sentenced to 3 years’ imprisonment for both counts of crimes against humanity. 

On 28 April 2005, Trial Chamber III of the ICTR sentenced Mikaeli Muhimana to imprisonment for the remainder of his life. The Trial Chamber found Muhimana, a former conseiller of Gishyita Sector in Kibuye prefecture, guilty on three counts: genocide, rape as a crime against humanity and murder as a crime against humanity.

The Chamber found Muhimana guilty of murdering several Tutsi civilians, including a pregnant woman whom he had disembowelled in order to see what the foetus looked like. The Chamber found that Muhimana’s active participation in the decapitation of Assiel Kabanda, and the subsequent public display of his severed head also constituted an aggravating factor. The Accused was found criminally liable for committing and abetting rapes as part of a widespread and systematic attack against the Tutsi civilian population. He had personally raped several Tutsi women in his home and at other locations. He also raped a girl whom he believed to be Tutsi, and apologized to her when he later found out that she was, in fact, Hutu.

In the aftermath of the 1970 Chilean presidential elections, General Rene Schneider was killed as several military officers attempted to kidnap him. His sons allege that Henry Kissinger, then National Security Advisor to president Nixon, knew of the plans to kidnap Schneider and did nothing to stop it. The Court did not allow the case to proceed, stating that the claim made by Schneider’s sons could not be viewed separately from the context of US foreign policy at that time and that the judge should not rule on this. Questions regarding foreign policy, the Court reasoned, should remain strictly within the domain of politics.

The Court of Appeals agreed, refusing to differentiate between this particular alleged decision and the general tendencies of foreign policy in 1970. It therefore confirmed the dismissal of the case, stating that the Constitution had provided Congress with sufficient instruments to check the Executive’s conduct of foreign policy. It should be left to politicians to answer political questions, the Court reasoned, not to judges.