The three orders issued by President Obama address different aspects of the procedures put in place by the Bush administration to detain and elicit information from suspected terrorists.  The first order establishes an immediate review of all individuals detained at Guantanamo Bay and, in the meantime, imposes a halt on all military commission proceedings.  The order also crystallises President Obama’s promise to close the Guantanamo Bay facility within a year and requires the current detention of individuals at Guantanamo to be in conformity with the Geneva Conventions.  In contrast to the first order, which focuses specifically on the Guantanamo Bay facility, the second order examines detention of terrorist suspects at a macro level, establishing a Special Task Force to identify lawful policy options “for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations”.  Finally, the third order addresses concerns about torture by the US Government, stating that all detainees must be treated humanely in accordance with Common Article III of the Geneva Conventions.  This follows an admission last month by judge Susan Crawford, who presides over the military commissions, that certain interrogation techniques used by the US military amounted to torture.

There is much to be commended in the text and spirit of the orders, and their promptness indicates a determination by the Obama administration to treat the issues of detention and alleged torture of terrorist suspects as a key priority.  One refreshing aspect of the orders is their tendency to see national security interests and the interests of justice as compatible, rather than as conflicting, values.  For example, in discussing whether a ban on brutal interrogation practices would hinder the Government’s ability to gather valuable intelligence, President Obama’s advisers unanimously concluded that a change in interrogation practices would not materially affect intelligence-gathering capabilities.  This rejection of the “national security vs. adherence to the law” dichotomy represents a welcome step forward for the new administration, signalling an approach that sees the two as heading in the same direction, rather than seeing compliance with international law as an irritating (albeit necessary) obstruction.

However, the realisation of a new policy towards terrorist suspects and an increased willingness to respect international law will not be a journey without glitches.  As the case of Abd al-Rahim al-Nashiri proved last week, there are still diverging views amongst key Defense officials about whether the closure of Guantanamo and the suspension of all military commission proceedings is the right course to take.  Al-Nashiri, a detainee at Guantanamo Bay who has been accused of planning the attack on the USS Cole in 2000, was facing arraignment on 9 February this year.  Although President Obama’s first executive order clearly stated that the Secretary of Defense was to take immediate steps to ensure that all proceedings pending before the military commissions be halted, military commissions judge James Pohl refused to suspend the proceeding of al-Nashiri, stating that “Congress passed the Military Commissions Act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future.”  Pohl’s refusal to suspend al-Nashiri’s arraignment came as a surprise after all other military commission judges had unquestioningly and promptly complied with the executive order.  Although the effect of Pohl’s refusal was quickly neutralised by a decision by judge Susan Crawford to dismiss the charges against al-Nashiri, Pohl’s characterisation of the Government’s stance as “unpersuasive” opened a minefield of questions relating to whether judges have the authority to refuse an executive order to suspend the military commissions.

Technical issues of authority aside, Pohl’s refusal can also be seen as a strong reminder that there are Defense officials out there who believe in the preservation of Guantanamo and who are prepared to use their power to slow or subvert the transition to a new system.  As Anthony D Romero of the American Civil Liberties Union said, Pohl’s decision “shows how officials held over from the Bush administration are exploiting ambiguities in President Obama’s executive order as a strategy to undercut the President’s unequivocal promise to shut down Guantanamo and end the military commissions.”  Although in this case Pohl’s refusal was promptly overruled by a higher authority, the possibility that similar dissent and hindrances will arise in the future (perhaps at higher levels of authority) means that the road to the closure of Guantanamo may not necessarily be a smooth one, and may face resistance from those who are technically part of the new administration, but whose allegiances remain with the former administration.

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On January 26, 2009, the International Criminal Court will take a significant step towards its aim of prosecuting the architects of grave war crimes when the Court’s first trial begins.  The case of Thomas Lubanga Dyilo, the former leader of the military group the Union of Congolese Patriots (UCP), has taken a long and tortured path to the trial stage, and in doing so, has exposed various weaknesses and problems in the Court’s structure and operation.  Nevertheless, the trial represents an historical moment for international justice and, if conducted in a fair and efficient manner, may go a long way towards addressing the concerns of critics of the Court.

Lubanga was the first individual to be arrested under the mandate of the Court and, in many ways, the story of his case has also necessarily been the story of various “teething problems” of the Court.  Some, such as the question of the participation of victims in the proceedings, have been tackled both solidly and seriously by the Court.  Others, such as the issue of confidential exculpatory documents obtained by the Prosecution, have been subject to conflicting opinions from the Trial Chamber and the Appeals Chamber, with no clear policy of the Court emerging.  Of course, these are problems, which can be found in all judicial systems, national or international, and their appearance at a court still in its infancy is especially of no surprise.  However, where the very existence of the court still remains a highly political issue in parts of the world (most notably, in the US in the case of the ICC), each flaw and weakness can take on a pronounced importance in the eyes of critics, and provides valuable fodder for arguments against the work of the court.

There is currently no indication of how long the trial will take or when judgment in Lubanga’s case can be expected.  The operation of the international courts for Rwanda, the former Yugoslavia and Sierra Leone have demonstrated that justice can be a slow beast.  And with conflicts currently raging from Gaza to the Congo itself, it is easy for the work of the Court to slip into the background, to be seen as a somewhat comforting afterthought to what really counts – namely, what happens in the field.  However, to see the Court and Lubanga’s case in this light is to ignore that the Court, in its enforcement of international law, indirectly governs what goes on in the field.  It may currently be very weak, but the threat of being prosecuted for war crimes and the need to respect certain legal boundaries must occupy at least some of the thought of commanders and combatants in conflicts around the world.  The trick is for the Court to show that it is a relevant and powerful means of deterrence and punishment, and not the impotent, unwieldy and politicized body its critics would have you believe.  Lubanga’s trial represents the first opportunity for the Court to do so and therefore, while it may be eclipsed on the front page of the newspaper by more immediate conflicts, we should remember that the architects of and participants in those conflicts may one day face the same processes and penalties that Lubanga may shortly face.

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The report alleges that the Rwandan government, headed by a former Tutsi rebel, has been supplying troops and heavy artillery to General Laurent Nkunda, the leader of the Tutsi community in the DRC.  Meanwhile, the DRC government (or more precisely, the DRC army) stands accused of collaborating with the FLDR, a Hutu militia encompassing many of the leaders of the 1994 genocide.  The result is a proxy war of sorts, between two governments eager to formally distance themselves from the conflict and keen to portray the civil war as a battle between renegade forces.

The report will force the Security Council in general, and the Sanctions Committee in particular, to think long and hard about novel ways to approach the DRC conflict.  Clearly, the current approach of combining an arms embargo with a significant, in-country UN peacekeeping presence has been ineffective in addressing rising security and humanitarian concerns.  The arms embargo, the UN report has found, has been repeatedly breached by the Rwandan and DRC governments, among other organisations.   The UN peacekeeping force, whilst being the largest and most expensive of its kind in the world today and the beneficiary of a recent injection of a further 3,000 troops, still faces considerable problems in terms of both legitimacy and practical power.  The disparate nationalities of the troops and the size of the peacekeeping force, relative to the civilian population, have made it difficult for the peacekeepers to fulfil their mandate of disarming the rebel forces.  Suggestions that the peacekeeping force has not been appropriately prioritising the protection of civilians, including by respected aid agencies such as Oxfam, have only added fuel to the fire. 

However, all of these shortcomings should not lead us to conclude that peace in the DRC is an “impossible task”, as some have argued.  The lessons of the Rwandan genocide, which forms both the temporal and causal precursor to the DRC conflict, are enough to warn the international community against yet another abdication of its responsibility.  Yet we must also avoid the opposite fallacy of taking too rosy a view of intervention.  An ill-conceived operation, eager to compensate for the gross inadequacies of our response to Rwanda, may ironically end up contributing to, rather than preventing, unnecessary carnage in the DRC.    

What action, then, should the UN take?  The UN report recommends the imposition of sanctions against particular foreign companies and individuals that have traded with the FLDR.  However, this can only be seen as a small step in the right direction, given that the majority of support for the rebel forces originates from the Rwandan and DRC governments.  Any serious prospect of stabilising the situation in the DRC, and of eventually reducing the onslaught of violence, must involve negotiations with both governments, as well as the forces they prop up.  Although the willingness of the governments and rebel forces to engage in negotiations has to date been discouraging, it is essential that the UN exhaust all avenues of meaningful compromise first if it is to turn its mind to a more heavy-handed approach. Meanwhile, the UN peacekeeping mission must work hard to regain its legitimacy and effectiveness, including by making strategic use of any additional forces.  After all, the DRC peacekeeping force was approved under Chapter VII of the UN Charter, the most potent tool in the Charter’s collection, allowing the use of “all necessary means” in the carrying out of the peacekeepers’ mandate.  The precise means required by the situation in the DRC may be an issue on which reasonable minds may differ, however the spectre of another Rwanda, on an even greater scale, must surely be enough to startle the international community into taking decisive action this time around.  

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Discussions about the modern US concept of enemy combatancy have tended to focus on a number of discrete issues, including the rights that should be afforded to enemy combatants, who should have the power to determine whether a person is an enemy combatant and whether this power should be subject to review. Although all of these questions are important questions to ask, they assume the fundamental legitimacy of the concept of enemy combatancy, as the term is used today. When one digs a little deeper, the idea of an enemy combatant not only becomes difficult to pin down, but also shows itself to be problematic in terms of international humanitarian law.

Traditionally, an enemy combatant has been defined and understood as a member of the armed forces of an enemy state, who may be properly detained under the laws and customs of war. Since 9/11, the term has acquired an amorphous meaning in both the popular and political lexicons, and is often used interchangeably with the term “unlawful combatant”. According the General Counsel of the Department of Defense, William J. Haynes, unlawful combatants are combatants who “do not receive prisoner-of-war (POW) status and do not receive the full protections of the Third Geneva Convention”. They are, in other words, combatants who lack legitimacy, who have no legal right to take part in hostilities.

Despite William J. Haynes’ references to the Geneva Conventions, the concept of an unlawful combatant finds no support in international humanitarian law. The Geneva Conventions make no distinction between legitimate and illegitimate combatants – the only distinction drawn is the fundamental distinction between civilians or those otherwise rendered hors de combat, on the one hand, and combatants on the other.

Although in the short-term, the introduction of a further category of unlawful combatants represents a convenient way in which the executive may expand its power whilst appearing to stay within the confines of international law, the consequences of doing so may ultimately work against the interests of the US government. In excising a potentially broad class of people from the protection afforded by the law of war, whilst simultaneously justifying its actions by reference to that law, the US government is sending mixed messages to the global community about its willingness to play by the rules of the game. In doing so, the US government ultimately damages its moral standing in the war on terror. Although the legitimacy and credibility of the government’s actions may seem an abstract and secondary consideration when weighed against the hard realities and necessities of the counterterrorist effort, this effort is necessarily one which requires the co-operation and therefore, the approval, of other major states. In the long-term, the damage caused to the government’s counterterrorist agenda by maverick interpretations of international law may outweigh the short-term benefits obtained by the detention of unlawful combatants and the curtailment of their rights.

In light of the ambiguity surrounding the status of both unlawful and enemy combatants, both concepts deserve and require greater scrutiny and clarity as a matter of relative urgency. Although this is primarily a task for federal judges (and judicial definitions of enemy combatancy have to date displayed an effort to provide a fair and workable definition, taking into account the interests of both detainees and the government), it is important that the new administration makes clear its approach to enemy and unlawful combatants. One approach may be to eschew the use of the term “unlawful combatant” all together and to return to the accepted international law position, which exempts only a very limited class of people (such as spies) from certain protections under the law of war and, even so, does not categorise such people as “unlawful”. However, if the new administration is to maintain the distinction between lawful and unlawful combatants, it might still mitigate the misdeeds of the former administration by providing a specific and narrow definition of “unlawful combatant” and taking a more liberal view of combatants’ rights, including affording unlawful combatants the most basic protection of Common Article 3 of the Geneva Conventions. The war on terror, we are often told, embodies a new type of warfare – however, at base it remains a war, and participants on both sides must abide by the law of war.

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