- Category: DANIEL ELOMBAH
- Wednesday, 28 January 2009
- By Daniel Elombah
For those that closely followed the US presidential race, the heated exchange over the rights of terrorism suspects illustrated the wide chasm between the world view of Barrack Obama and John McCain. Each side accused the other of embracing a policy that would encourage terrorists. Obama promised a new approach to tackling terrorism.
While Obama expressed support for the US Supreme Court decision granting detainees the right to seek habeas corpus hearings, McCain described the ruling as one of the most dangerous decision to ever come out of the Supreme Court.
The debate over whether to treat terrorism primarily as a law enforcement issue or as a military issue is an old one and illustrates the disagreement among scholars as to how law should respond to Al Qaeda terrorism in the face of the apparent willingness of the US Government to use military means to confront it.
Perhaps the most controversial aspects of the Afghan conflict have arisen in relation to humanitarian protections, designed to protect the human dignity of persons who no longer take part in hostilities. Some experts argue that it is inadequate to ‘pursue and prosecute suicidal Islamic extremists as if they were typical criminals’; other experts say that doing so is precisely what is needed to puncture the aura of "holy warriors" that the terrorists feed on and to deglamorize them in the eyes of other Muslims.
The position of the previous US government of George Bush may be summed up as follows: Firstly, The US is engaged in an international armed conflict against Al Qaeda, a general ‘war on terrorism’ and against terrorists everywhere.
Secondly, the September 11 attack is an ‘act of war’ and military action is justified on the ground of self-defence, with all the prerogatives of International Humanitarian Law especially the right to detain enemy combatants indefinitely without judicial decision but at the same time, they that captured Al Qaeda personnel are entitled to be prisoners of war under the Geneva Convention. Rather all Qaeda militants in US custody are classified as ‘unlawful enemy combatants’.
This position of the US has not gone unchallenged. in Rasul v. Bush, the United States Supreme Court decision established that the U.S. courts has the jurisdiction to decide whether foreign suspects who are non-United State citizens held in Guantanamo Bay were rightfully imprisoned.
Following this judgment The US government established “The Combatant Status Review Tribunals”; the purpose is to permit detainees at the Guantanamo Bay to contest their status as “enemy combatants”. The Supreme Court in Hamdan v. Rumsfeld decided that the Military Commission is not a ‘competent Tribunal’ as envisaged by the Geneva Convention and is illegal under both the US military law and the Geneva Conventions which is part of US law, the US being a party to the convention.
The Supreme Court also held that common article 3 to the 1949 Geneva Conventions applies to the armed conflict with al-Qaeda and that it applies to the Guantanamo detainees and to all the detainees held by the United States in Afghanistan and elsewhere. Following this defeat, the US government went back to Congress and The US Congress then passed and the President signed into law the Military Commissions Act of 2006 (MCA).
Among other controversial provisions, the MCA codified their legal status as ‘unlawful enemy combatants’. Finally in July 2006, the Bush administration recognized the applicability of the Geneva Conventions to terrorism suspects in military custody but still denies them Prisoner Of War status and asserts the right to detain them indefinitely at Guantanamo.
By arguing that even the US domestic law does not apply in Guantanamo, it means essentially that by executive order, the American authorities have determined that international humanitarian law only applies according to their whims and to the extent that they wish.
This is a cynical decision that is simply intended to reserve for the US government the right to do whatever they want to do. That being said, The US government is operating currently within the spirit of the third Geneva Convention by recognizing the applicability of the Geneva Conventions to terrorism suspects in military custody.
In many other aspects, however, its actions fall short of the requirements of that Convention. It is unacceptable to say that international humanitarian law does not apply in Guantanamo because firstly, the detainees were held within the context of an armed conflict. The US being a party to the Geneva Conventions, should respect international humanitarian law.
Every counter-terrorist strategy must be conducted in accordance with principles of humanity. The international obligation of States to take any measures against international terrorism must be in accordance with international humanitarian law.
In fact The US found itself in a deadlock: it is either that the detainees are a party to an armed conflict and are combatants, in which case they should be considered as prisoners of war or they are civilians in which case, they should have stayed in Afghanistan and not have been transferred to Guantanamo or anywhere else outside their country. A lot of emphasis have been placed on the new features of the international landscape post 9/11 occasioned by Al Qaeda new kind of ‘war’ raising new challenges.
The relevance of international law and its capacity to meet the challenges of contemporary conflict have been questioned. The debate evolves around the need to revise the whole gamut of international law. However, a careful reflection of international law will reject the idea that Al Qaeda and post 9/11 exigencies reveal the need for a radical revision of international law in general.
Behind the smoke-screen of this debate, the real challenge relates, ‘not to the normative content of Law but to the need to focus on judicial and non-judicial techniques to convince both state and non-state actors to respect the law’, and to strengthen the effectiveness of the implementation mechanisms, especially the UN and its organs.
The fundamental principles of international criminal law and the concepts of the laws of war and the international humanitarian law are flexible enough to be adapted to cover Al Qaeda terrorism. The complex system of national and international criminal justice does not rule out the use of force in self defence but as much as possible, military counter-terrorist operations should be taken as a last resort.
The use of force in self defence is not automatically justified especially against non-state actors operating from foreign territory. Proposed measures to counter the terrorist threat must be necessary, effective and proportionate. In this manner, force would be used but within the limits of the law of war and International Humanitarian Law or with Security Council authorization in full compliance with International Law.
In this debate, President Obama is right. He argued that “the Bush administration's approach to fighting terrorism has been a failure, and he proposes an approach that mixes law enforcement, intelligence and military tools, including the possibility of for example, invading Pakistan to pursue al-Qaeda if the Pakistani government does not cooperate”.
The unfortunate experience since September 11, 2001 is that several years after 9/11 and despite what was described as ‘the most significant investigation in history’, and despite a flurry of activities following UN Resolution 1373, there is still remarkable paucity of terrorist prosecutions. One conviction in respect of 9/11 was subsequently quashed on the basis that the US refused to share potential exculpatory evidence.
Another German trial ended in an acquittal because of doubts about the fairness of the proceedings against him. Efforts to bring the Guantanamo inmates before military tribunals could not overcome enormous legal challenges. This illustrates the procedural and evidentiary challenge that cases such as these pose.
On the other hand, the use of torture and arbitrary detention, indefinite detention, inhuman treatment, denial of basic human rights of fair trials, the removal of judicial review of detention, replacement of regular impartial and independent courts with ad hoc military commissions and the suggestion that the status of detainees and lawfulness of detention are exclusively military matters not susceptible to judicial determination illustrates the paradox of relying on repeated violations and disregard for the international rule of law in a ‘war on terror’.
As pointed out by Obama, “this has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world and given a huge boost to terrorist recruitment in countries that say, 'Look, this is how the United States treats Muslims’”.
Now, President Obama is calling for a new partnership with the Muslim world "based on mutual respect and mutual interest." He talked about growing up in Indonesia, the Muslim world's most populous nation, and noted that he has Muslim relatives.
Obama also said that recent statements and messages issued by the al-Qaida terror network suggest they do not know how to deal with his new approach. "They seem nervous," he told the interviewer. "What that tells me is that their ideas are bankrupt."
In his latest message on Jan. 14, al-Qaida leader Osama bin Laden said Obama had been left with a "heavy inheritance" of Bush's wars. Shortly after the election, the network's number two, Ayman al-Zawahri used a demeaning racial term for a black American who does the bidding of whites to describe Obama.
The message suggested the terror network was worried Obama could undermine its rallying cry that the U.S. is an enemy oppressor. Finally, the challenge of Al Qaeda terrorism would not need to be dealt with exclusively under either criminal law or humanitarian law.
We should look beyond this political conflict and realize that the distinction between one criminal law enforcement for the terrorist and another for ‘ordinary criminals’ is in large measure a false dichotomy, a cleavage that we can banish from this debate.
President Obama’s new approach is welcome to the international community.