Quaint and Obsolete: The ‘War on Terror’ and the Right to Legal Personality

Abstract

In the “war on terror,” the Bush administration sought to delegitimize international human rights law (IHRL), international humanitarian law (IHL), and customary law by claiming that they were “quaint” and “obsolete” in the face of the threat from al Qaeda. On this view terrorist suspects fell into a legal “black hole” and could be deprived of the most basic rights, such as the right to recognition as persons before the law. International law supporters reacted by reconsidering fundamental questions, like the degree to which human rights may be restricted in states of emergency, and the clarity of the civilian/combatant distinction in IHL. In response to the black hole theory, the “full coverage” and “evolutionary” theories identified four principles within IHL and IHRL that enable existing law to address terrorist threats: the principles of complementarity, maximal extension, restricted derogation, and regulated detention. The Obama administration has so far enacted the “evolutionary” approach.

'We Are Bradley Manning': Information Policy, the Legal Subject, and the WikiLeaks Complex

“…It was during the formation of the League of Nations in the early 20th century that the concept of the legal person began to be used in reference to individuals, considered the necessary first step for the protection of civil rights; the concern was to ensure that those groups often historically denied legal personhood-slaves, women, those who are stateless, children, and other marginalized groups-had rights as legal subjects. In a development pertinent to the struggles over issues raised by the WikiLeaks complex, President George W. Bush took the position that terrorist suspects were not legal persons under existing international law (Galchinsky, 2013).…”

Security Matters: The Reconstruction of the ‘New World Order’ in American Foreign Policy

“…As part of their larger strategy to fight a 'different kind of war', President Bush and his legal team redefined the status of and protections for detainees and prisoners of war. The reconstructions that they undertook to amend what they considered to be "quaint" statues of international laws, such as the 1949 Geneva Conventions and the 1984 Conventions Against Torture and Other Inhumane or Degrading Treatment or Punishment, had enormous repercussions (Galchinsky 2013;Goldstone 2005Goldstone -2006. The creation of a category of 'unlawful enemy combatants" who were not granted habeas corpus amongst a host of other legal protections is but one outcome of the Bush administration redefining existing rules (Gill and van Sliedregt 2005).…”