Rethinking Guantánamo: Unlawful Confinement as Applied in International Criminal Law

19 Pages Posted: 21 Oct 2011

See all articles by James Graham Stewart

James Graham Stewart

University of British Columbia (UBC), Faculty of Law

Date Written: March 2006


Although criticism of US-led detention at Guantánamo Bay has been extensive, little attention has been placed on evaluating the implications of international humanitarian law standards as applied in international criminal law. This paper concludes that there is a striking resemblance between allegations made of Guantánamo and many of the scenarios that have given rise to individual criminal responsibility for unlawful confinement as a grave breach of the Geneva Conventions in other contexts. In this regard, arguments that individuals who do not enjoy prisoner-of-war status fall into a legal vacuum or that international humanitarian law has somehow been rendered obsolete by the `War on Terror` ignore the fact that international criminal precedents unambiguously disagree. If nothing else, an analysis of international criminal law`s treatment of unlawful confinement highlights the urgent need to rethink the legal basis for detention at Guantánamo and the risks of individual criminal responsibility for purporting to develop international humanitarian law through unilateral changes in policy rather than formal international law-making processes.

Keywords: Guantánamo, international humanitarian law, international criminal law, unlawful confinement, detention, war on terror

Suggested Citation

Stewart, James Graham, Rethinking Guantánamo: Unlawful Confinement as Applied in International Criminal Law (March 2006). Journal of International Criminal Justice, Vol. 4, Issue 1, pp. 12-30, 2006, Available at SSRN:

James Graham Stewart (Contact Author)

University of British Columbia (UBC), Faculty of Law ( email )

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