“War is a challenge to law, and the law must adjust. It must recognize that the old wineskins of international law, domestic criminal procedure, or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort”.
There are disturbing echoes here of President George W. Bush’s call to his administration in early 2002, in a central policy memorandum on detentions in the “war on terror”, to engage in “new thinking in the law of war”, to take account of this “new paradigm”.14This “new thinking” ignored the USA’s international human rights obligations and bred old, familiar abuses. Diffidence was not the problem, but rather the overconfidence of officials who operated as if unfettered executive power was the guarantor of public safety from violent attack, and a supine Congress and judicial deference should be the order of the day. Systematic human rights violations were the result. The detainees held in Guantánamo and elsewhere, and their families, are still paying the price. There was (and remains) little recognition within any branch of government in the USA that a wide variety of states and peoples have throughout history faced grave threats of large-scale violent attack from non-state groups, and that far from being obsolete, the international human rights law frameworks enacted over the past several decades were developed in a context in which states were acutely sensitive to those threats.
On the international stage, the Obama administration has put a healthy distance between it and the Bush administration’s view of provisions of the Geneva Conventions as too “quaint” or “vague and undefined” to be suitable for this “new war”. For example, on the 60thanniversary of the Geneva Conventions, the US Permanent Representative to the United Nations, Ambassador Susan Rice, said:
“In recent years, some have called the Geneva Conventions outdated as we face an enemy that is loyal to no state, that hides among civilians, and that routinely violates the law our own forces are obliged to uphold. However, for all the enormity of al-Qaeda’s deadly ambitions, the challenge we face today has its own unfortunate tradition. The framers of the Conventions were perfectly familiar with terrorism, albeit of a different sort. If anything, the conflict we are waging today in Afghanistan, and the struggle against violent extremists and terrorists more broadly, make the Geneva Conventions even more relevant and important”.15