The Treatment of Detainees and the 'Global War on Terror': Selected Legal Issues

• Author: David Turns
• Position: Senior Lecturer in International Laws of Armed Conflict, Defence Academy of the United Kingdom
• Pages: 199-221

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The Treatment of Detainees and the "Global

War on Terror": Selected Legal Issues

David Turns*

Introduction

This article will address selected legal issues relating to the treatment of

detainees 1in the context of the "Global War on Terror" as a"hook" on

which to hang some ideas of more general application and significance about the

international legal framework ofthe "war." Some general (i.e., jus ad bellum) inter-

national law aspects of the parameters of that framework have already been de-

bated in the literature,2but the perspective adopted herein is of more specialist

focus inasmuch as it concentrates on the practical issue that should resonate in the

mind of all coalition military and associated personnel since the disclosure of ill-

treatment ofdetainees in the custody of US and British forces in Iraq at Abu Ghraib

and elsewhere: 3namely, once suspects in the "War on Terror" are captured, in ac-

cordance with what rules and legal standards are they to be treated? The broader,

fundamental, more theoretical (but no less important) issue lurking behind this

question of detailed substance is one of the utmost practical significance for per-

sonnel deployed to military counterterrorist operations in the field in the setting of

the "Global War on Terror": does the "War on Terror" constitute an armed

*Senior Lecturer in International Laws of Armed Conflict, Defence Academy of the United

Kingdom. The views expressed herein are those of the author in his personal capacity. They do

not necessarily represent the official views of the government or Ministiy of Defence of the

United Kingdom.

The Treatment ofDetainees and the "Global War on Terror"

conflict in the sense of international law? And if so, what kind of armed conflict is

it: international, non-international or something else?

The premise contained herein, in anutshell, is that military and political deci-

sionmakers in the coalition countries (principally, for the purposes of this article,

the United States and the United Kingdom) have mentally placed the proverbial

"chicken before the egg," in that they have completely failed to consider the very

real implications that these considerations have on armed forces from alegal point

of view. When soldiers are deployed on military operations, they need to know the

context of and legal framework governing their actions. When in action against

"terrorists" in Afghanistan, are coalition troops subject to (and expected to apply)

the 1949 Geneva Conventions,4or Additional Protocols Ior II thereto? 5If so, do

they apply all their provisions, or only some of them? The legal problem has been

particularly acute when armed forces have been given instructions which, while

vague on details, have tended to undermine respect for the law of armed conflict in

general.6As one noted former member ofthe US armed forces has succinctly put it:

Ican understand why some administration lawyers might have wanted ambiguity so

that every hypothetical option is theoretically open, even those the President has said

he does not want to exercise. But war doesn't occur in theory and our troops are not

served by ambiguity. They are crying out for clarity.7

The structure of this article will be, first, to consider some specific issues in cur-

rent legal proceedings in both the United Kingdom and the United States regard-

ing treatment of detainees in custody, before moving to the broader picture of the

general legal framework and classification of the "Global War on Terror." The lat-

ter discussion will involve abrief review of recent relevant decisions by the US and

Israeli Supreme Courts as well as acomparison with the situation confronted by

British security forces in Northern Ireland during the "Troubles"8as alimited pre-

decessor for such a"war." At the end, we will return to the specific starting point

about legal standards for the treatment of detainees in military custody in light of

the foregoing discussion about the nature and classification of the conflict, and

draw some conclusions with suggestions for apossible way forward in what has be-

come averitable legal and moral minefield.

Recent Legal Developments in the United Kingdom

The Al-Skeini Litigation

On June 13, 2007 the House of Lords (sitting in its judicial capacity as the highest

court in the United Kingdom) gave its judgment in along-running saga

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