For those closely following the US presidential race, the current heated exchange over the rights of terrorism suspects illustrates the wide chasm between the world view of Barack Obama and John McCain with each side accusing the other of embracing a policy that would encourage terrorists. While Obama expressed support for last week's US Supreme Court decision granting detainees the right to seek habeas corpus hearings, McCain described the ruling as one of the most dangerous decisions to ever come out of the Supreme Court.

The debate over whether to treat terrorism primarily as a law enforcement issue or as a military issue is an old one and illustrates the disagreement among scholars as to how law should respond to Al Qaeda terrorism in the face of the apparent willingness of the US Government to use military means to confront it. Perhaps the most controversial aspects of the Afghan conflict have arisen in relation to humanitarian protections, designed to protect the human dignity of persons who no longer take part in hostilities. Some experts argue that it is inadequate to ‘pursue and prosecute suicidal Islamic extremists as if they were typical criminals’; other experts say that doing so is precisely what is needed to puncture the aura of "holy warriors" that the terrorists feed on and to deglamorize them in the eyes of other Muslims.

The position of the present US government may be summed up as follows: Firstly, The US is engaged in an international armed conflict against Al Qaeda, a general ‘war on terrorism’ and against terrorists everywhere. Secondly, the September 11 attack is an ‘act of war’ and military action is justified on the ground of self-defence, with all the prerogatives of International Humanitarian Law especially the right to detain enemy combatants indefinitely without judicial decision but at the same time, they that captured Al Qaeda personnel are entitled to be prisoners of war under the Geneva Convention. Rather all Qaeda militants in US custody are classified as ‘unlawful enemy combatants’.

This position of the US has not gone unchallenged. in Rasul v. Bush, the United States Supreme Court decision established that the U.S. courts have the jurisdiction to decide whether foreign suspects who are non-United State citizens held in Guantanamo Bay were rightfully imprisoned. Following this judgment The US government established “The Combatant Status Review Tribunals”; the purpose is to permit detainees at the Guantanamo Bay to contest their status as “enemy combatants”. The Supreme Court in Hamdan v. Rumsfeld decided that the Military Commission is not a ‘competent Tribunal’ as envisaged by the Geneva Convention and is illegal under both the US military law and the Geneva Conventions which is part of US law, the US being a party to the convention. The Supreme Court also held that common article 3 to the 1949 Geneva Conventions applies to the armed conflict with al-Qaeda and that it applies to the Guantanamo detainees and to all the detainees held by the United States in Afghanistan and elsewhere. Following this defeat, the US government went back to Congress and The US Congress  then passed and the President signed into law the Military Commissions Act of 2006 (MCA). Among other controversial provisions, the MCA codified their legal status as ‘unlawful enemy combatants’. Finally in July 2006, the Bush administration recognized the applicability of the Geneva Conventions to terrorism suspects in military custody but still denies them Prisoner Of War status and asserts the right to detain them indefinitely at Guantanamo.

By arguing that even the US domestic law does not apply in Guantanamo, it means essentially that by executive order, the American authorities have determined that international humanitarian law only applies according to their whims and to the extent that they wish. This is a cynical decision that is simply intended to reserve for the US government the right to do whatever they want to do. That being said, The US government is operating currently within the spirit of the third Geneva Convention by recognizing the applicability of the Geneva Conventions to terrorism suspects in military custody. In many other aspects, however, its actions fall short of the requirements of that Convention. It is unacceptable to say that international humanitarian law does not apply in Guantanamo because firstly, the detainees were held within the context of an armed conflict. The US being a party to the Geneva Conventions, should respect international humanitarian law. Every counter-terrorist strategy must be conducted in accordance with principles of humanity. The international obligation of States to take any measures against international terrorism must be in accordance with international humanitarian law. In fact The US finds itself in a deadlock: it is either that the detainees are a party to an armed conflict and are combatants, in which case they should be considered as prisoners of war or they are civilians in which case, they should have stayed in Afghanistan and not have been transferred to Guantanamo or anywhere else outside their country.

A lot of emphasis has been placed on the new features of the international landscape post 9/11 occasioned by Al Qaeda new kind of ‘war’ raising new challenges. The relevance of international law and its capacity to meet the challenges of contemporary conflict have been questioned. The debate evolves around the need to revise the whole gamut of international law. However, a careful reflection of international law will reject the idea that Al Qaeda and post 9/11 exigencies reveal the need for a radical revision of international law in general. Behind the smoke-screen of this debate, the real challenge relates, ‘not to the normative content of Law but to the need to focus on judicial and non-judicial techniques to convince both state and non-state actors to respect the law’, and to strengthen the effectiveness of the implementation mechanisms, especially the UN and its organs.

The fundamental principles of international criminal law and the concepts of the laws of war and the international humanitarian law are flexible enough to be adapted to cover Al Qaeda terrorism.  The complex system of national and international criminal justice does not rule out the use of force in self defence but as much as possible, military counter-terrorist operations should be taken as a last resort. The use of force in self defence is not automatically justified especially against non-state actors operating from foreign territory. Proposed measures to counter the terrorist threat must be necessary, effective and proportionate. In this manner, force would be used but within the limits of the law of war and International Humanitarian Law or with Security Council authorization in full compliance with International Law.

In this debate, “president” Obama is correct, he argues that “the Bush administration's approach to fighting terrorism has been a failure, and he proposes an approach that mixes law enforcement, intelligence and military tools, including the possibility of for example, invading Pakistan to pursue al-Qaeda if the Pakistani government does not cooperate”. The unfortunate experience since September 11, 2001 is that several years after 9/11 and despite what was described as ‘the most significant investigation in history’, and despite a flurry of activities following UN Resolution 1373, there is still remarkable paucity of terrorist prosecutions. One conviction in respect of 9/11 was subsequently quashed on the basis that the US refused to share potential exculpatory evidence. Another German trial ended in an acquittal because of doubts about the fairness of the proceedings against him. Efforts to bring the Guantanamo inmates before military tribunals could not overcome enormous legal challenges. This illustrates the procedural and evidentiary challenge that cases such as these pose. On the other hand, the use of torture and arbitrary detention, indefinite detention, inhuman treatment, denial of basic human rights of fair trials, the removal of judicial review of detention, replacement of regular impartial and independent courts with ad hoc military commissions and the suggestion that the status of detainees and lawfulness of detention are exclusively military matters not susceptible to judicial determination illustrates the paradox of relying on repeated violations and disregard for the international rule of law in a ‘war on terror’. As pointed out by Obama, “this has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world and given a huge boost to terrorist recruitment in countries that say, 'Look, this is how the United States treats Muslims’”.

Finally, the challenge of Al Qaeda terrorism would not need to be dealt with exclusively under either criminal law or humanitarian law. We should look beyond this political conflict and realize that the distinction between one criminal law enforcement for the terrorist and another for ‘ordinary criminals’ is in large measure a false dichotomy, a cleavage that we can banish from this debate. The mind-set of John McCain is a continuation of George Bush’s discredited policy and is dangerous to the international community.

Daniel Elombah Esq (LLM)

elsdaniel@yahoo.com

Robot  # 1 | 18.06.2008 15:55

...Read the full article.

Abujaboy  # 2 | 19.06.2008 02:54

A well-written essay. But wrong, just as Obama is wrong about “the Bush administration's approach to fighting terrorism has been a failure". HOW has it been a failure? By the "paucity of prosecutions"? That's exactly the wrong metric; the way to measure success is not court actions but the lack of actual terrorism. And, how many domestic attacks have there been since 9/11? Despite the efforts of thousands of jihadis? Prosecutions in a war like this will by and large be rare -- most of the malcontents are foreigners in a foreign land, many/most would rather die than be captured, and much of the evidence collected is not actionable in a legal sense. One could make the case that Bush has not made the U.S. very popular (and is popularity really what we're looking for?), but that he has failed in the war on terror? Ridiculous. In fact, besides a strong economy for most of his presidency, the war on terror is one of Bush's few successes. And this is to be compared with the man who might call for invading Pakistan!!!! That would make Iraq seem like a walk in the park. Is he insane? So, while the article is well-written, it also shows the author's judgment to be as poor as Obama's. It appears he has succumbed to the political disease sweeping Africa -- pigmentitis. It makes one giddily give his or her political support to a candidate based solely on the color of the candidate's skin. Eradication programs in the U.S. have seen increasing success in the past 40-50 years; how sad that now it is becoming epidemic in Africa.

edoji  # 3 | 19.06.2008 13:02

@Abujaboy "HOW has it been a failure? By the "paucity of prosecutions"? That's exactly the wrong metric; the way to measure success is not court actions but the lack of actual terrorism. And, how many domestic attacks have there been since 9/11"? My brother you are wrong here. Since 9/11, there have been numerous domestic Terrorist attacks; The London bombings, in July 7, 2005 The 11 March, 2004 Madrid bombings, Spain The UK and Other Embassies Bombing in Ankarra, Turkey, 2007 The Rabat, Morroco bombings, 2007 The November 9th bombing of three hotels in Amman is Jordan’s 9/11. The simultaneous attacks, claimed by Abu Musab Zarqawi’s “al-Qaeda in Iraq” terrorist network, killed 57 people, most of them Jordanians. Not to mention IRAQ and others! What you and others of similar mind fail to understand is that Al Qaeda attacks is not only targeted at the US. On the contrary, It targeting techniques aims to inflict a large amount of damage on the economic foundations of western military, political, and financial power as happened on September 11, 2001; Against all who fail to follow its fundamentalist view of Islam, even against fellow muslims. It is instructive that their initial targets were "corrupt Muslim regimes" that they aim to overthrow and replace with pious Muslim leaders. A milestone was reached when Saddam Hussein’s invaded Kuwait in 1990 and Saudi Arabia appeared to be under threat. Bin Laden offered to defend the Kingdom but the Saudi Royal family invited the United States and other non-Muslims to help fight the Iraqis and even allowed the US to establish bases in Saudi Arabia. The appearance of these ‘infidels’ on Arabian sacred soil infuriated Bin Laden and his group. When they moved to Sudan in 1991, the militants pledged a commitment to the global jihad. The continued presence of the US troops at Arabian soil at the end of the Gulf war was considered an infidel invasion of their sacred Land. Further appearance in Somalia aggravated their fears of a US led grand scheme to conquer Muslim lands. They began to gradually shift the focus of their jihad from a struggle against ‘the near enemy’ (e.g. president Mubarak of Egypt) - to the ‘far enemy’, US and their allies. Due to constant international pressure, they were expelled from the Sudan and moved back to Afghanistan in 1996. The movement became more radicalized and militant. They became a tangible group that advances its aims through a network of cells, associated terrorist and guerrilla groups and affiliated political, religious, and social and welfare organizations. Launching terrible terrorist attcks that led to 9/11. So Inability to launch attacks directly in the US does not mean that the US is winning. On the contary al Qaeda was forced to reconfigure its operational agenda away from centrally controlled strategic assaults executed by an inner core of militant jihadist activists. Its institutional structure becomes more fluid and decentralized. Al Qaeda initially based locally, has become international in nature, in terms of both its members and the diversified objectives that it pursue. Al Qaeda began to be transformed into an amalgamation of different terrorist organizations across diverse countries. Yet Still Al Qaeda continues to foster its goals by functioning as an inspirational figurehead to these external militant Jihadist groups, providing the strategic rationale—the why—that inspires them to wage jihad. Al Qaeda’s role would be limited to general ideological guidance, perhaps a specific blessing for the event; to rally Muslims around al Qaeda’s larger ideological agenda. The truth is that their success of the 9/11 operation backfired on Al Qaeda. George Bush and his allies invaded Afghanistan and overthrew the Taliban regime. This severely weakened Al Qaeda’s ability to strike high-profile targets. The absence of a sanctuary in Afghanistan combined with the loss of key human and capital resources has denuded the group of the vital command, logistical, and functional assets needed to launch a high profile attack like the one of 9/11. The lines of command that had existed hitherto began to disintegrate and in some places have completely disintegrated and new groups began popping up. It is therefore not surprising that the nature of the jihad has taken on a somewhat unfocused aspect. New fields of jihad emerged. This development has not resulted in one main organization on which satellite organizations depend. Instead, with the with local cells acquiring sufficient capacity to carry out the jihad on their own, any action does not have to be designed, ordered, or even backed or claimed by him. For example, the three men suspected of shooting four French tourists in Mauritania last Christmas eve have been linked with Al Qaeda. They were only suspected “of having trained in Algerian terrorist camps run by the terrorist group Al Qaeda in the Islamic Maghreb, which has sworn allegiance to Al Qaeda and claimed responsibility for the deadly car bombings in Algeria last month” . Obviously, this is not an operation by the core Al Qaeda. Let me stop here, It suffices to say that by their use of diversified targets, Al Qaeda still pursues its universal agenda.

Deebee  # 4 | 20.06.2008 22:17

Problem with the esay is that these terrorists are not mere civil disobedience types. They are militarily armed and no country should throw them at the mercy of its judicial system, particularly the ones overrun by the kinds of justices that rule based on arrogant but silly ideologies of left-wing sissies disguised as psychologists. We seem to forget the right that nations - weak or strong - have to defend themselves against aggressors such as these cowards that almost always singularly target women and children, then hide among their own women and children so that their enemies, while trying to kill them, can be guilty, too, of killing innocent women and children. While the world makes much noise barking at the U.S. because the rich guy is an easy target, we love to go to their country, enjoy Uncle Sam's welfare, and ake advantage of their enviable laws while kicking them in the groin. Meanwhile, little is done by the lying liberal media to expose the wanton destruction of lives in Niger, Ethiopia, Sudan, Iran, Indonesia, Pakistan, and anywhere else these ignorant Islamofascists live. I know, we are not supposed to call them such names; only they have the right to label others the Great Satan. Sad! When Barack Oh-Bummer gets to the White House, I bet you those attacks that have been warded off the U.S. will return - or at least begin to be planned on a large scale. Go ahead and support appeasement of your enemies. Good luck to you!

Dapxin  # 5 | 20.06.2008 23:03

=Deebee;4295058472>Problem with the esay is that these terrorists are not mere civil disobedience types. They are militarily armed and no country should throw them at the mercy of its judicial system, particularly the ones overrun by the kinds of justices that rule based on arrogant but silly ideologies of left-wing sissies disguised as psychologists. We seem to forget the right that nations - weak or strong - have to defend themselves against aggressors such as these cowards that almost always singularly target women and children, then hide among their own women and children so that their enemies, while trying to kill them, can be guilty, too, of killing innocent women and children. While the world makes much noise barking at the U.S. because the rich guy is an easy target, we love to go to their country, enjoy Uncle Sam's welfare, and ake advantage of their enviable laws while kicking them in the groin. Meanwhile, little is done by the lying liberal media to expose the wanton destruction of lives in Niger, Ethiopia, Sudan, Iran, Indonesia, Pakistan, and anywhere else these ignorant Islamofascists live. I know, we are not supposed to call them such names; only they have the right to label others the Great Satan. Sad! When Barack Oh-Bummer gets to the White House, I bet you those attacks that have been warded off the U.S. will return - or at least begin to be planned on a large scale. Go ahead and support appeasement of your enemies. Good luck to you! While you surely can make a case for the appeasement of your enemies as to merits and all that- how about take a stand back to define those enemies? America told the world AlQaeda trained and executed the 911 action stunts(evil?). They got into the Afghanistan on that account - with the worlds support. Then they defined, spurious WMDs (which they designed in the 1st place) in Iraq and shouted terrorism and all that clappie-trackies, and defined another enemy in Saddam. Then they went in without the worlds support. Each day here, mamas and papas scream and shed funny tears at losing 104 soldiers in a land where they have been directly/indirectly responsible for the wanton killing of possible thousands of people , in the name of entrenching demorazy (no longer finding the WMDs), and we invent enemies specially made to kill of Americans, like they have some blood that wasnt there before 9/11, when the whole world united in the defense/support of America? Lets not lose focus here. There are people, who hates American self-centered politics. And their tactical deployment of underhand techniques to gain advantage of what is not directly theirs and especially in matters not entirely theirs ( AFRICOM is an example that surely rings) and are ready to bomb their embassies in Lagos or Sudan to prove a point. Now go on and call these people enemies, and we can surely have a war fighting globally. To say, Bush has successfully defended America from terrorism by fighting a hopeless war, and sounding more like a robot controlled video game Xter, in matters where utmost diplomacy, and negotiated compromises are the hallmark of a leader in need, is to be easily led. For me, the george Bush / Tony Blair created more terrorists than the world ever had in stock pre 9/11 by their sheer incompetence and personal irresponsibility in Iraq. Had we all been focused on Afghanistan -which as far is we can envisage - habored terrorists, maybe we would have been better able to define the 'enemies'. As for Obama - remind me that Nigerian who famously said "A Tiger does not need to proclaim its Tigritude' - containment isnt exactly the same as appeasement. If Americas proclamation of Tigritude, over the last 8years, in fighting wars, against enemies so hopelessly defined - then, isnt it time you backtrack to see where you are coming from ? Abeegi I dey come....

Deebee  # 6 | 23.06.2008 12:18

Dapkin, Bush is a bungling #@######!! (nothing vulgar meant; just can't print it!) However, that does not remove the fact that the liberal left is a willing accomplice of Islamofascists. I would rather have neither of them - the Islamofascists or a clumsy president. However, if I'm forced to choose one over the other - it's the US over some country overrun by religious zealots, whatever their creed. Like you said, let's not lose sight of the real issue - to give in to these guys is to give in to the kind of murderous killing that goes under the radar unnoticed by most of the rest of us and willfully ignored by the liberal left as long as they have their way in the confused political mess called western democracy. Obama's naivety will sell the U.S. to these murderers and what we will result is better imagined. Just take a look at Pakistan and Afghanistan under the Taliban. I don't want that!

Auspicious  # 7 | 23.06.2008 12:24

=dapxin;4295058478>While you surely can make a case for the appeasement of your enemies as to merits and all that- how about take a stand back to define those enemies? America told the world AlQaeda trained and executed the 911 action stunts(evil?). They got into the Afghanistan on that account - with the worlds support. Then they defined, spurious WMDs (which they designed in the 1st place) in Iraq and shouted terrorism and all that clappie-trackies, and defined another enemy in Saddam. Then they went in without the worlds support. Each day here, mamas and papas scream and shed funny tears at losing 104 soldiers in a land where they have been directly/indirectly responsible for the wanton killing of possible thousands of people , in the name of entrenching demorazy (no longer finding the WMDs), and we invent enemies specially made to kill of Americans, like they have some blood that wasnt there before 9/11, when the whole world united in the defense/support of America? Lets not lose focus here. There are people, who hates American self-centered politics. And their tactical deployment of underhand techniques to gain advantage of what is not directly theirs and especially in matters not entirely theirs ( AFRICOM is an example that surely rings) and are ready to bomb their embassies in Lagos or Sudan to prove a point. Now go on and call these people enemies, and we can surely have a war fighting globally. To say, Bush has successfully defended America from terrorism by fighting a hopeless war, and sounding more like a robot controlled video game Xter, in matters where utmost diplomacy, and negotiated compromises are the hallmark of a leader in need, is to be easily led. For me, the george Bush / Tony Blair created more terrorists than the world ever had in stock pre 9/11 by their sheer incompetence and personal irresponsibility in Iraq. Had we all been focused on Afghanistan -which as far is we can envisage - habored terrorists, maybe we would have been better able to define the 'enemies'. As for Obama - remind me that Nigerian who famously said "A Tiger does not need to proclaim its Tigritude' - containment isnt exactly the same as appeasement. If Americas proclamation of Tigritude, over the last 8years, in fighting wars, against enemies so hopelessly defined - then, isnt it time you backtrack to see where you are coming from ? Abeegi I dey come.... Well said, Dapxin! Thank you again! Auspicious.

Auspicious  # 8 | 23.06.2008 12:55

=Deebee;4295059346>However, that does not remove the fact that the liberal left is a willing accomplice of Islamofascists.. I wish some of us would learn the importance of backing-up sweepingly condemning statements like this with solid argument, rather than just dropping them out there and walking away like this was Nagashaki and Hiroshima. I would like to know, precisely, how the "liberal left" has been a "willing accomplice of Islamofascists". Hopefully that statement isn't one of those convenient submissions made by one side against another of the American political spectrum. What we know as of today is that America enjoyed international solidarity and support after 9|11, such that the American invasion of Afghanistan to route-out the oppressive and suppresive Taliban who hosted Osama bin Laden long enough to plan his heinious attacks against innocent peoples in America. Then, as Daxpin said, the Republican-led administration took its eye off the ball and went into a warfare that bred and inspired the largest concentration of terrorists in recent memory. This has been the pattern for years before Iraq became an issue - America goes and stirs the Hornest's Nest elsewhere and comes home crying about how much she is hated while others blame the "liberal left" for being "willing accomplice of Islamofascists", forgetting that "Islamofascism" was itself spawned of genuine angst against the imperialism of the West as mostly defined by American conservative agenda to force its views and way of life upon sovereign entities across the world. Whoever believes the use of force will tame those who feel genuinely aggrieved by America around the world decieve himself. The battle of attrition will only continue indefinitely, wearing America and her resources away from her priorities at home and elsewhere just as the Iraq War has done at the expense of priorities at home (Katrina, Economy, etc..). Guestimates of the cost of this war is in heading towards Trillions already. Hence why the likes of Obama are trying to change the mindset to governance and international relations. America cannot have different set of rules for herself and other human beings (terrorists, included) if she is to advance the cause of human rights and democracy around the world. It only makes America look hypocritical to go around preaching the need to respect the dignity of all humans while torturing prisoners at Guatanamo. Yes, America must go after terrorists who mastermind catastrophes like 9|11 and kill them in their lairs if need be, but if they are under captive like those in Cuba, they have a right to fair treatment under American and international law. If there is anything that helps expose America to the dangers of terrorists in America or anywhere in the world, it is NOT the call for fairness and justice in the application and execution of American laws by the "liberal left", BUT the mindset and approach that helps breed further hate and intolerance amongst these people - just as it has done in Iraq. Of course, those will kill will kill - those who terrorize will terrorize. But it is a big, fat lie to submit that the approach of the likes of Obama or the so-called "liberal left" endangers America than what the arrogant "conservative right" has done. What nauseating Hypocrisy! Auspicious. Like you said, let's not lose sight of the real issue - to give in to these guys is to give in to the kind of murderous killing that goes under the radar unnoticed by most of the rest of us and willfully ignored by the liberal left as long as they have their way in the confused political mess called western democracy. Obama's naivety will sell the U.S. to these murderers and what we will result is better imagined. Just take a look at Pakistan and Afghanistan under the Taliban. I don't want that!