The International Law and Human Rights or War on Terror: What to Choose?

The ‘war on terror’ has led to grave human rights violations and, in response, to a growing volume of human rights litigation. There have been a number of different litigations that have unfolded in recent years in relation to issues such as arbitrary detention, torture and ill-treatment, extraordinary rendition, extraterritorial application of human rights norms and the creeping reach of the ‘terrorism ’ label.

These cases provide a prism through which are displayed key characteristics of the war on terror as it affects human rights, and enables us to begin to ask questions regarding the role of the courts and the impact of human rights litigation in this area.

On 12 June 2008 the Supreme Court of the United States decided that persons detained by the United States in Guanta´namo Bay have the constitutional privilege of habeas corpus. The recognition that all detainees are entitled to this basic right, irrespective of their nationality, their designation as ‘enemy combatants’ or their offshore location, has been hailed as a victory for the rule of law. Jubilation is somewhat tempered by the fact that it took six years to decide that detainees are entitled to a protection that would normally guarantee judicial access within hours, days or maybe weeks.

During the second half of the twentieth century the international community, facing the terrorist phenomenon, reacted with the adoption of a series of treaties concerning specific types of terrorist acts, and the obligations of states with regard to them. Alternatively terrorism-oriented legislation, which initially covered only acts affecting civilians, has gradually expanded to cover some acts of terrorism against military personnel and installations. This contribution attempts to assess the repercussions of this evolution on the status and the protection of armed forces engaged in the so-called ‘‘war on terrorism’’ by examining the existing dynamic between these regulations and international humanitarian law.

Terrorism is not a new phenomenon. During the second half of the twentieth century many countries in Europe, Latin America, Africa and Asia confronted movements of the most diverse kinds that had in common the willingness to resort to the use of violence against innocent civilians to obtain their goals. In some, the victims were numbered in the tens of thousands. In response, the international community began to adopt a series of treaties concerning specific types of terrorist act and the obligations of states with regard to them. There are now thirteen international treaties against terrorism, as well as numerous regional treaties, and the process of drafting a general treaty against international terrorism is nearly complete.

Here are some international treaties against terrorism:

Convention on the Marking of Plastic Explosives for the Purpose of Detection, the 1997 International Convention for the Suppression of Terrorist Bombings the 1999 International Convention for the Suppression of Financing of Terrorism. The most recent addition is the International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by the UN General Assembly on 13 April 2005.

Most of these treaties also contain dispositions concerning the protection of human rights. Such dispositions are of three kinds: general provisions indicating that the obligations set forth in the treaty are without prejudice to other international obligations of the state party; provisions concerning the right of accused or detained persons to due process, and provisions establishing conditions regarding extradition and the transfer of prisoners. Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to theses Conventions should be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the state in the territory of which that person is present and applicable provisions of international law, including international human rights law.

However, the recent information about the secret prisons for the terrorists and the methods used during their interrogation gives solid grounds for most human rights organizations and even allies of America think there are breaches of international and U.S. law. They point to the use of enemy combatant status, extraordinary rendition, alleged use of prisoner abuse which to observers outside the Bush administration constitutes torture.

The status "enemy combatant" was used by the Bush administration because the Taliban regime was never internationally recognized as a state, and that their supporters thus had no right to the treatment expected of a legitimate military of uniformed soldiers and officers under the Third Geneva Convention.

After adoption of the Military Commissions Act of 2006, any non-American national, anywhere on earth, can be designated "enemy combatant." The Bush administration's position is that unlawful combatants have no rights under the Geneva Conventions and therefore can be sent anywhere without trial or charges. However, this claim is widely disputed by legal experts. More specific is the case of Maher Arar, a Canadian-Syrian dual-citizen. During a flight transfer in New York, he was approached by authorities and eventually sent to a Syrian prison for 374 days without charges. American birth is the only defense against forced exile. American national birth should not protect American-born terrorists or fail to protect naturalized citizens, yet it does both. Whatever the legal justification of the Bush administration, commentators note that command responsibility is a well established doctrine, making those responsible for these policies liable for prosecution.