The laws of war provide no authority for Guantànamo Bayby Anthony Dworkin / April 20, 2004 / Leave a comment
As the US supreme court prepares to rule on the Guantànamo Bay detention regime, US officials are doing what they can to make it look respectable. They have accelerated the release of detainees who are judged to pose no threat – including the five Britons who arrived home in March. The US government has also announced plans to hold annual parole board-type reviews for the captives who remain, and has made limited reforms to the military commissions that will try some of them. There is also a new public relations effort to remind us why the continued detention of these men is legitimate. The US is at war, we are told, and the laws of war allow enemy combatants to be held until the conflict is over.
Critics of the Bush administration have tended to say that there cannot be an armed conflict between the US and a terrorist group like al Qaeda that is based outside US territory. But this response is a weak one, because al Qaeda does pose a greater threat than the sort of criminal activity that can be countered with law enforcement methods. Nato explicitly (and the UN security council implicitly) described the events of 11th September as an “armed attack.” If human rights advocates deny that there can be an armed conflict between the US and al Qaeda, they make it easy for the US administration to dismiss their critique.
Yet a much stronger counter-argument can be made. Even if there is an armed conflict between the US and al Qaeda, Guantànamo and other aspects of the war on terror are based on a misleading picture of how international law applies in wartime. The US government’s case relies on the idea that there is an absolute distinction between the laws that apply in peace and war. On this account, once you cross the threshold of armed conflict, a completely different set of rules takes effect. Human rights standards are effectively suspended, and military commanders gain the power to detain or target anyone they believe to be fighting on the other side.
This picture of the law is inaccurate. Instead of a clear divide between peace and armed conflict, it would be more accurate to imagine a sliding scale, with a different balance of laws applying at different gradations. The state of peace would be at one end of the scale, and all-out conventional…