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The US detention facility in Guantanomo Bay is symbolical as it mirrors the current dilemma of international law. Amnesty International in its recent Human Rights Report, discusses the impact of this symbol on international human rights law. According to Amnesty, “thousands of men suspected of terrorism remained in US-run detention centers around the world without any prospect of being charged or facing a fair trial. At the end of 2005, some 14,000 people detained by the USA and its allies during military and security operations in Iraq and Afghanistan were still held in US military detention centres in Afghanistan, Guantanamo Bay in Cuba and Iraq. In Guantanamo, dozens of detainees staged hunger strikes to protest against the conditions of their detention and were force fed…”
Curiously, however, the detaining power has continued to defend its position on the basis, among others, that those held in Guantanomo Bay are persons that pose the greatest threat to the security of the United States and by extension to the whole world. International legal rules have been evoked as a justification for the continued detention of about 500 inmates of Guantanamo Bay. Most of these detainees have been classed, by the US, as illegal combatants that have no legal claims to Prisoners of War (POW) status under the Geneva Conventions. Under the Law Of International Armed Conflict, (LOIAC), illegal combatants are those who breach the law, by blurring the distinction between civilians and combatants. A combatant can breach this law by intentionally targeting civilians instead of military targets. As the controversy rages, the cherished rights of men and women take a dive.
The contradicting viewpoints on the legal status of those being detained in Guantanomo raise vital issues that go beyond international human rights law, but also call to question, the relevance of the whole corpus of international law, which some have argued, albeit unsuccessfully, should not be considered abiding. Terrorism and the containment measures being adopted by states, seem to have been unforeseen by the architects of the United Nations.
It is not surprising therefore, that the current state of affairs, challenge our understanding of the seemingly settled rules of international law, especially as they relate to the prohibition of the use of force, referred to as “jus ad bellum” and the law of international armed conflict, known as “jus in bello”. Opinions are sharply divided between two schools of thought, namely the restrictive and the expansive schools of thought. Whilst the former insists on watertight interpretation of the cardinal rules governing international relationships, the latter is eager to give an open-ended interpretation of these rules, thus raising a lot of troubling and unresolved issues for stakeholders.
The devastating attacks on the US on September 11, 2001, reaffirmed the general trend, observed in the last century, towards a marked diminution of inter-state wars and a proliferation of civil wars, guerrilla wars, internal violence and terror attacks, with civilians increasingly becoming targets. The attacks on the US were apparently planned, financed and carried out by non-state actors. They showed that non-state players, including both organizations and individuals, can use power in a manner in which only states have acted previously. With the collapse of the World Trade centre, it has been reasoned that several pre-existing international rules have been dismantled to meet with the exigency of the moment. The impact of non state actor-led terrorism on the pre-existing rules governing international relations could be the basis for the conclusion in some quarters that “the rules of the game have changed.” But, to what extent have these rules changed or have they really changed in fact?
The first issue to be considered, in this regard, is the continued relevance of the state-centered “Westphalia model” which has dominated the international order for more than three centuries. The US-led war in Afghanistan was supported by a generality of states and the United Nations as a legitimate self defence. However, the war raised new issues for international law; for instance, can the dethronement of the legitimate Taliban Government in Afghanistan and its replacement be justified as a form of self defence?
The second issue, it raises bothers on the relevance of the settled ‘jus in bello’ distinction between combatants and non-combatants. Specifically, since the Al- Qaeda fighters and some Taliban soldiers failed to meet the seven cumulative requirements for legal combantancy, could it be the US was right in denying those it considers unqualified, the POW status? Has the creation of new counter-terrorism measures and war against terrorism blurred this distinction between combatants and non combatants and what is the implication of this on the whole regime of law of international armed conflict?
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Wilfred Mamah
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