The Return of Refugees, Rendition, and Vicarious Dirty Hands

Lawrence May

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    In this paper I look for inspiration from events nearly 800 years apart, the signing of Magna Carta, and the maintenance of refugee camps and prisons as a way to disconnect people from protection of their basic rights. Magna Carta's famous Chapter 29 set out four procedural rights: 1) the right not to be arbitrarily imprisoned;2) the right not to be sent into exile;3) the right not to be removed from the protection of the law;4) the right to trial by jury.At Guantanamo Bay, all four of what I will call Magna Carta legacy rights were violated. The right of habeas corpus was denied to these prisoners. Several prisoners were sent from Guantanamo to countries that were known routinely to use torture in violation of nonrefoulement. The prisoners were described as being in a 'legal black hole' in that they were neither within the jurisdiction of US courts nor under the jurisdiction of the laws and customs of war, since they were unlawful combatants.2 Nonrefoulement and habeas corpus are related in an interesting way. Habeas corpus, among other things, protects those who have been imprisoned, or otherwise detained, from being tortured or abused while in custody. Nonrefoulement protects people who are residing in one country from being sent into another country where they will be tortured or abused.There are two principal ways that abuse of those who are under the control of a State takes place: either by secreting someone within the State's own prison or detention system or by sending the person to another State's prison or detention system. Put in other terms, either a State abuses an individual in terms of basic human rights by dirtying its own hands, or the State passes the individual to another State known for using its own dirty hands in such abuses. Part of the challenge of this paper is to explain why it is just as bad normatively whether one causes abuse inone or the other of these two ways.And the prisoners at Guantanamo were denied trial by jury.In the first section, I will discuss the problem of dirty hands and expand the discussion to cover what I call the problem of 'vicarious dirty hands.' In the second section, I will explain what nonrefoulement is and what its value is. I will also argue that nonrefoulement is primarily a procedural right, just as is true of habeas corpus. In the third section, I will argue that nonrefoulement should be granted jus cogens status in international law, recognizing it as a foundational procedural right. In the fourth section, I argue for expanding the scope of nonrefoulement in international law to cover cases where the harm that people would face in being deported to another State is not based on membership in a protected group. And finally I will consider some objections to granting the right of nonrefoulement jus cogens status.
    Original languageEnglish
    Pages (from-to)14-34
    Number of pages21
    JournalAustralian Journal of Legal Philosophy
    Issue number2010
    Publication statusPublished - 2010


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