As the US supreme court prepares to rule on the Guantànamo Bay detention regime, US officials are doing what they can to make it look respectable. They have accelerated the release of detainees who are judged to pose no threat - including the five Britons who arrived home in March. The US government has also announced plans to hold annual parole board-type reviews for the captives who remain, and has made limited reforms to the military commissions that will try some of them. There is also a new public relations effort to remind us why the continued detention of these men is legitimate. The US is at war, we are told, and the laws of war allow enemy combatants to be held until the conflict is over.
Critics of the Bush administration have tended to say that there cannot be an armed conflict between the US and a terrorist group like al Qaeda that is based outside US territory. But this response is a weak one, because al Qaeda does pose a greater threat than the sort of criminal activity that can be countered with law enforcement methods. Nato explicitly (and the UN security council implicitly) described the events of 11th September as an "armed attack." If human rights advocates deny that there can be an armed conflict between the US and al Qaeda, they make it easy for the US administration to dismiss their critique.
Yet a much stronger counter-argument can be made. Even if there is an armed conflict between the US and al Qaeda, Guantànamo and other aspects of the war on terror are based on a misleading picture of how international law applies in wartime. The US government's case relies on the idea that there is an absolute distinction between the laws that apply in peace and war. On this account, once you cross the threshold of armed conflict, a completely different set of rules takes effect. Human rights standards are effectively suspended, and military commanders gain the power to detain or target anyone they believe to be fighting on the other side.
This picture of the law is inaccurate. Instead of a clear divide between peace and armed conflict, it would be more accurate to imagine a sliding scale, with a different balance of laws applying at different gradations. The state of peace would be at one end of the scale, and all-out conventional war between national armies at the other. In that kind of war, generally fought between uniformed forces on a recognisable battlefield, there is indeed an implicit right to target enemy soldiers or take them prisoner. But between these two extremes, in the middle of the spectrum, is a looser category of armed conflict. This category takes in situations where fighting of a certain intensity is taking place, but without the full set of rights and responsibilities that apply in inter-state wars. This is where the contest between al Qaeda and the US should be situated.
The Bush administration tends to use the terms "war" and "armed conflict" interchangeably. Under international law, however, the term "war" refers to a select group of clearly defined and highly regulated contests. These are fought between states - which alone under international law are allowed to resort to arms - and subject to stringent requirements on how fighting is conducted. For instance, only armed forces or groups affiliated to them can join in the battle, and all soldiers must wear uniforms to distinguish themselves from civilians. They must be under structured command to make sure that they observe the laws of war. If they fulfil these conditions, combatants are given the legal authority to carry out acts of war: killing or capturing enemy troops. Detaining enemy fighters until the end of a war is thus sanctioned as lawful within a wider framework of humanitarian oversight.
This is the idea that the Bush administration appeals to when it says that human rights standards are not relevant to Guantànamo because it is authorised by the laws of war. The problem is that the conflict between the US and al Qaeda could not be more different from the kind of tightly regulated war that this argument presupposes. Al Qaeda is not a state, and the US would never accept the idea that its members had the right to kill or capture US soldiers; instead, it reserves the right to prosecute them for murder whenever they do so. There is no expectation that al Qaeda fighters will distinguish themselves from civilians. On the contrary, they try to hide among the innocent - meaning that the use of force against them is more likely to endanger civilian lives. The entire structure of entitlements and obligations that make up the carefully drawn balance of the traditional laws of war is simply inapplicable under these circumstances. Indeed, the US admits as much when it says that the Geneva conventions (the fullest modern codification of the laws of war) do not apply to this conflict. But it then turns around and tries to claim powers under the law - to detain or target members of the enemy - that are dependent on the set of conditions it has just denied.
The American "war on terror" is not a war in the legal sense of the term. However, it does fall within the wider category of armed conflict - along with traditional anti-insurgent campaigns fought by governments within their own territories. Armed conflict describes not a regulated situation, but simply one in which a level of fighting is taking place as a matter of fact. Here, international law applies in a much more limited way. It puts a few basic humanitarian conditions on what parties to the conflict can do - they must treat innocent civilians and captured fighters humanely. But it does not create such a thing as a lawful act of war. Insurgents are not authorised to use force and governments rely on domestic not international authority to put down rebellion.
The distinction between war and the wider notion of armed conflict may seem legalistic, but it is significant. In conventional war, the laws of war act as a kind of exclusion zone for human rights. But in armed conflict, there is no time-honoured system of humanitarian rules in place - merely a few rudimentary ground rules. Under these circumstances, it is simply wrong to claim that the laws of war take precedence over the claims of human rights. In putting down domestic insurgencies, governments must always observe human rights principles. And the same is true of America's campaign against the global insurgency of al Qaeda.
How does the doctrine of human rights apply in such circumstances? According to human rights principles, it is permissible to kill in the course of putting down an insurgency, but only in situations where the use of force is no greater than absolutely necessary. Similarly, the human rights regime allows the suspension of full due process of law in time of armed conflict or public emergency, but sets a basic requirement that people must not be arbitrarily deprived of liberty. Most liberal democracies have interpreted this as meaning that there must be independent oversight of every detention.
These are the standards that should be used to judge the legality of America's war on terror. They are appropriate to a situation where there is no fixed battlefield, where the conflict may have no definite end, where the identification of the enemy is disputed - and where the enemy can always be prosecuted for the act of taking up arms. Regarding detention, human rights law would only permit the continued holding of suspected members of the enemy where an independent judge has endorsed it as legitimate on a case by case basis, with regular (perhaps six-monthly) reviews. Once we understand that the laws of war do not provide authority for Guantànamo - even during an armed conflict - it cannot be disputed that these human rights principles set the standard which should be followed.
