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Russell Miller

Advisory Board:

Gregor Bachmann
Nina Boeger
Matthias Casper
Helge Dedek
Hans-Michael Heinig
Florian Hoffmann
Alexandra Kemmerer
Frank Schorkopf

Senior Editors: 

Besty Baker
Jurgen Bast
Gralf-Peter Calliess

Patrycja Dabrowska
Elisa Hoven
Jen Hendry
Malcolm MacLaren
Stefan Magen
Ralf Michaels
Christoph Safferling
Emanuel Towfigh
Floris de Witte

Associate Editors:

Anna Katharina von Oettingen 

Legal Issues in the ‘War on Terrorism’ – Reflecting on the Conversation Between Silja N.U. Voneky and John Bellinger

By Gabor Rona
Read the Full Contribution as a PDF

A.  Introduction

It is an irony of our times. The 9/11 attacks catapulted international humanitarian law (IHL) – otherwise known as the “laws of war” or the “law of armed conflict” – into popular conversation as never before. Who ever heard of Common Article 3 before the U.S. invasion of Afghanistan? Can anyone recall arguing about the criteria for prisoner of war status before the Taliban and al Qaeda? Was anyone parsing the difference between civilian trials, courts martial and military commissions before Abu Ghraib and Guantanamo?

And yet, humanitarian law, human rights law and the humanitarian purposes they are meant to serve have since suffered. The cause of this suffering can largely be laid to another irony. While the Nazis, Pol Pot, Slobodan Milosevic and the Janjaweed may have the blood of millions on their hands, their brutality actually helped promote, crystallize and expand the reach of human rights and humanitarian law. Their atrocities encouraged the establishment of new treaties, monitoring mechanisms, judicial bodies and jurisprudence - an expanding web of international human rights protection and accountability. 

The United States is, both thankfully and regrettably, different. Thankfully, it has no Janjaweed, no Milosevic, no Pol Pot. And America takes pride in its adherence to the rule of law – but regrettably, not so much as to obey it. Rather, the lawyers serving the American leadership have constructed a house of cards in a Potemkin village of legalisms to convince Americans, if not themselves, that “enhanced interrogation techniques,” “extraordinary rendition,” secret detention, military commission trials and the acceptance of “diplomatic assurances” from brutal states that they will not torture people America sends there to be detained and interrogated are perfectly consistent, thank you, with America’s international legal obligations. And though the “torture memos,” which counseled how the President can execute his constitutional duties by violating the Constitution have been rescinded (because they were leaked) secret memos continue to lurk.  Attorney General Mukasey’s continued inability to say that waterboarding is torture...