The Guantanamo Detainees in America's ‘War on Terrorism’

Abstract

ABSTRACT The international humanitarian law of armed conflict … constitutes a means to an end: the preservation of humanity in the face of the reality of war. (Kalshoven & Zegveld, 2001, p.203) If the rule of law means anything globally, it must mean that counter‐terrorism defence is undertaken consistently with international law and its institutions. (Horrigan, 2003, p. 287) In situations of war or emergency, as in the current ‘war on terrorism’, international humanitarian law clearly defines what is permissible, particularly in terms of humanitarian and human rights legislation governing state activity. There remains, however, a lack of clarity around the terms ‘unlawful combatant’, ‘unprivileged combatant/belligerent’, widely used in case law, legal literature and military manuals, though not terms used in treaties. They raise debate concerning interpretation and consequent applicable protective processes (Dormann, 2003). This article assesses the status and treatment of the Guantanamo Bay detainees, focusing on the strength and fragility of contemporary international humanitarian law when faced with the challenges consequent upon 9/11. In so doing, it provides an overview of the key areas of concern, including the rhetoric of war, diverse legal regimes, the potency of POW status, presidential and emergency powers, and the debate on potential treaty violations. Examining this case leads to the conclusion that excesses of governments in times of crises do not justify derogation from international humanitarian rights incommensurate with the emergency. In so doing, the global community diminishes the best of democracy for that community and for individuals.