If the Hat Fits, Wear it, If the Turban Fits, Run for Your Life: Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists

Abstract

This article analyzes and discusses some of the United States' unilateral policies in the war on terror, namely the indefinite detention and targeted killing of suspected terrorists. It posits that the legal community should resist recent arguments purporting to vindicate certain justifications for curtailing fundamental human rights. First, the article rebuts recent attempts to subsume legally insulated aspects of the war on terror into one overriding security discourse, with particular resistance to the merger of human rights by the national security agenda. Secondly, the article attempts to refute claims that the significance of the distinction between prisoners of war and protected persons has begun to fade. In doing so, it also takes stock of current national and international developments in implementing or suspending human rights and humanitarian protection. Finally, the article also broadly discusses inherent double standards in post-9/11 policies, along with the widening gap between Arab and Western societies. Concerns that military personnel may not be afforded humanitarian protection abroad, that the rationale of reciprocity underlying the laws of war may be failing, and that the war on terror is eroding fundamental cleavages in international law also permeate the discussion. In analyzing these difficult issues, the article draws abundantly on other experiences, such as those of the European Convention on Human Rights, Israel, Northern Ireland, and the UK. The discussion ultimately leads to a critique of the balancing metaphor in striking a balance between security and liberty.

Keywords: international human rights, humanitarian law, international law, terrorism, indefinite detention, targeted killing, laws of war, national security, liberty

JEL Classification: K33, K19, K49, K30