Getting Real: Reforming international law governing the detention of terrorist suspects

The US response to the September 11 attacks has been nothing if not controversial. President Bush’s decision to designate detained Al-Qaida suspects as “unlawful combatants” evoked a chorus of dissent from proponents of international law. Yet amid the host of press releases and opinion pieces condemning the illegality of Guantanamo Bay, it is difficult to find detailed legal expositions of the basis for these protests.

Most critics baldly assert a breach of the Geneva Conventions or, in some cases, the “spirit of the Geneva Conventions”. This exquisite formulation reflects the absence of textual analysis from most legal critiques of the Executive Order that established the detention regime. When this author rang one Australian legal professional body which had issued several media releases asserting such a breach, the responsible staff member was unaware of any legal analyses.

The vagueness of legal critiques flows not just from the inherent ambiguity of international law, but also from an under-appreciated fact: existing international law is simply incapable of application to the fight against international terrorism.

The purpose of this article is threefold: first, to demonstrate the disingenuousness of attempts to apply international law to the US detention regime; second, to explain why that regime should nonetheless be unacceptable to advocates of free societies; and, third, to suggest a path forward.

Combatants and criminals

The case against the detention regime was publicised in Australia using the examples of David Hicks and Mamdouh Habib, the two Australians detained under it. Hicks was captured on the battlefield in Afghanistan; Habib was arrested in Pakistan as a terrorist suspect. While the US does not distinguish between these “unlawful combatants”, the arguments against their detention were quite distinct.

In those cases analogous to Hicks, where terrorist suspects are captured in the context of military operations, critics assert that the Third Geneva Convention classifies them as “prisoners of war” (POWs) and accords them defined rights as a result. If their classification is in doubt, critics argue the convention requires that detainees be entitled to a full court hearing to determine their status.

In cases analogous to Habib, where terrorist suspects are arrested in a non-combat environment, critics assert that they are not combatants but criminal suspects, entitled to due process and a speedy trial. If the law of armed conflict does not apply, the applicable international instruments are the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).

The latter document confers the international law equivalent of the common law writ of habeas corpus, by which any citizen detained by the government has a right to challenge his detention in court.

The Geneva Conventions

Turning first to the Hicks class of detainees, the Australian Section of the International Commission of Jurists (ASICJ) asserts that Article 4 of the Third Geneva Convention applies to classify them as POWs. Article 4 lists the following relevant categories of POW:

• Members of the armed forces of a Party to the conflict (including militias and volunteer corps that are parts of the armed forces, where the Party must be a party to the Convention or must accept and apply its provisions);
• members of other militias and members of volunteer corps which fulfil the four conditions of lawful belligerency, including wearing a fixed distinctive sign recognisable at a distance, and conducting their operations in accordance with the laws and customs of war; and
• members of regular armed forces who profess allegiance to a government or authority not recognised by the detaining power.

To qualify as "armed forces" in the first and third categories, it is well-established that combatant units must observe the "four conditions of lawful belligerency" mentioned in the second category, a definitional point regarded as implicit by the drafters of the convention.

The ASICJ, true to the “Dennis Denuto” approach adopted by most Guantanamo critics (it’s the vibe of the convention, Your Honour!), merely asserts that Hicks “clearly” falls within “one or more” of these categories. Which one? What is clear to the ASICJ is unsubstantiated bluster to anyone unpracticed in the obfuscations of international law.