already been modified by the practice of UN members who presumably were responding
to and accommodating new developments and realities. He cautions us against “an
excessively narrow interpretation of the Charter,” a point that is emphasized in this
paper.
The Vigilant Argument
On the other side sit countless (but by no means all) legal scholars and few
government officials. The argument here is that, while the actors and means may differ
from the past, the rules themselves are rich enough to accommodate the new
circumstances. Further, the law is not open to unilateral and selective interpretation or
other such decisions taken outside the collective security framework, especially if it
means a dumbing-down of key provisions. The law was devised to prevent escalation, to
provide mutual (reciprocal) benefits, and to protect the human rights of all, no matter
whose custody they may find themselves in. To this end, the patchwork quilt of
humanitarian and human rights law provides more than adequate cover for those in
detention. Regardless of whether they are accorded prisoner of war status or are deemed
unlawful combatants or criminal suspects (a distinction that itself is made under judicial
review), detainees have the right to due process and humane treatment. Not even the
stated uniqueness of US security threats can undermine what has so painstakingly made
its way into our collective consciousness, state practice, and positive law. The fear, of
course, is that this is precisely what is happening.
The value of this approach is its emphasis on the stated commitment to the jus in
bello and basic humanitarian and human rights principles (and to key provisions of the
US Constitution itself). However, this approach is – to those of the “either you’re with us
or against us” mindset
–confining and stubborn, unbending as it is to consider seriously
the clear fixation of the major power with the presumed change in circumstances
argument. The normative legal message, as worthy as it is, is impractical when held up
to the stated geo-strategic framework of US-led war on terror, including especially its
unilateralist, defense-based bent.
Obviously, has not done a lot of good to wave key
articles of the Third Geneva Convention in the face of the US Attorney General, the
7
Ibid.
8
President Bush on 6 November 2001,
9
This is emphasized most categorically in The National Security Strategy of the United States of America,
September 2002.
6
Convention