MSWPG7213 ASSESSMENT 2 - WAR ON DETAINEES CASE STUDY

The War on Terror, more popularly known as the Global War on Terrorism, that was embarked upon by the United States’ government as a national security initiative upon the bombings on the twin towers on the 9th of September, 2001, on the basis of an alleged attack by the Al-Qaeda members. This has opened up new avenues in the field of international law and practice regarding the detainment of individuals allegedly involved in suspicious activities. Essentially, this change in paradigm occured in the face of the unipolar world order’s superpower being threatened by a terrorist organisation. Because it was an international military campaign, and the US has long been a dominant global superpower, international law’s orientation was also reconfigured via such a development. 

Essentially, it becomes important to note the the background, as to how detentions came into being, when considering the case of the war on terror, and their applicability in international law. On the one hand is the argument that those that are “dangerous” to national interest must be detained and on the other hand, the argument that the detained deserve justice and representation in legal authorities. According to Goderis and Versteeg  (2012), it is important to note that there have always been legal complications in this platform of international law, which has both a national jurisdiction element to it as well as an international jurisdiction element, and oft times it is a confounding matter as to which law will be applicable. 

Goderis and Versteeg further mention the example of Yaser Hamdi who had  been remanded from the Supreme Court. The Bush administration offered, in the favor of his detainment practices an explanation regarding how non-residents cannot be both tried and represented at a national court simply because of their lack of legal status, hence they were directly detained. The fifth amendment in the US constitution was used repeatedly for the purpose of invoking the right to privacy, and so the US officials who were engaged in direct detainment and potential war crimes, were saved from punitive action, erstwhile the legal memoranda released regarding the responsibilities of legal attorneys and US officials when engaging in detainment were indicative of an inapplicability being drawn between the Geneva Convention and the Taliban detention centers in Guantanamo Bay (Bilder and Vagts, 2004). 

There are an additional set of laws applicable in the context of international law in the case of a war, which is the law of war, which is the International Humanitarian Law, as opposed to the International Law of Human Rights, which is applicable at all times, whether during war or peace times. Addtionally an invest relationshsip exists, and what is always a definitive occurrence is that human rights laws are constantly infringed upon by counter terrorism laws, one exists to nullify the proposals of the other according to Australian Human Rights Commission’s (2008) astute assessment. The Australian Human Rights Commission further denotes that since the wake of 9/11 in 2001 Australia has also introduced new counter-terrorism rules, ones which have attributed an even greater amount of autonomy to the policing and the agencies, along-with the Attorney general to ban terrorist organisations, but most importantly to restrict people’s movements. These initial rights of freedom to act and move are then compromised because of the introduction of new counterterrorism laws which are counterproductive to international human rights law.