JUDICIAL PROTECTION OF THE GUANTANAMO DETAINEES AND AMERICAN NATIONALS HELD ON THE U.S. TERRITORY - ANALYSIS OF THE JUDGMENTS OF THE AMERICAN COURTS

So far a few attempts have been undertaken in order to grant the Guantanamo detainees certain constitutional protection and rights resulting from the international humanitarian law and international human rights law. Those court cases pertain on the one hand to the foreigners detained at Guantanamo Bay and on the other to the American citizens considered 'enemy combatants' and detained in the territory of the United States. Diverse judgments of the American courts and arbitral standards of treatment and qualification of the detainees by the American administration are the evidence of the hypocrisy of the authorities and of a lack of respect for the law and its arbitral interpretation according to particular needs. New terms are being invented and only after that definitions are added to them (for instance 'enemy combatant'), terms which one will in vain look for in the international humanitarian law regulations. We deal here with the creation of new unnecessary and confusing terms because those terms which can be found in the Geneva Conventions namely those of combatants, prisoners of war and civilian person are sufficient and precise. On June 28, 2004 the U.S. Supreme Court (SC) passed judgments in three important cases: Rumsfeld vs. Padilla, Rasul vs. Bush and Hamdi vs. Rumsfeld. In Rasul vs. Bush the SC held that the U.S courts have jurisdiction to verify the legality of Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Unfortunately it does not mean that the detainees are finally guaranteed some substantial rights but only a procedural right to challenge the legality of their detention. The American courts have a very responsible task to perform but they should not hesitate to question and control executive's decisions which may violate basic human rights.