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Wednesday, January 12, 2005

With the four left over British detainees from the US base in Guantanamo Bay apparently heading back to these isles soon, this is a good time to reflect in the legal and political issues surrounding the detention of these four and of course the hundreds of others being held in various places.
On these questions I found this article by a Ted Lapkin quite interesting. He makes several points about the legality of detention without trial and similar practices in fighting terrorism, showing that these practices are all perfectly withing the bounds of international legal accords. Well, it’s a convincing read. However, I’m no legal expert and I found that articles making the opposite point sounded equally convincing, so I’m keeping an open mind about this for now. (see Kenneth Roth of Human Rights Watch for the other side of the argument.)

But Lapkin touches on a different problem in his article as well (scroll down to the final paragraph under the heading “Do Human Rights Groups Undermine International Law?”):

The authors of the 1949 Geneva Conventions were realists who recognized that by attempting to ban everything, they would stop nothing.
Distinction between permissible and impermissible violence is the keystone of international humanitarian law. . . . The practical implementation of the rules depends upon soldiers' ability to discriminate between what is military and what is not. . . .
Anything that obscures the distinction between combatant and noncombatant undermines the entire foundation of international humanitarian law. Any erosion in the ability to differentiate between civilians and soldiers on the battlefield inevitably would automatically place noncombatants at greater risk. . . . Yet, by seeking to ban detention of illegal combatants in facilities like Guantánamo Bay, this is precisely where the recommendations of the human rights industry would lead.
. . .
To blur this distinction and to unnecessarily apply the Geneva Conventions to illegal combatants would erode that distinction and constitute not only a legal mistake, but an ethical one as well.

It’s a strong argument and certainly shows the need to find new ways of dealing with terrorists and those suspected as such. We simply can’t stick to the old rule book and to pretend otherwise would be a waste of time. Clearly it is time to start thinking about new ways to deal with these problems. (Here’s one possible suggestion:special terrorism courts).

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