The Status of Soldiers and Terrorists under the Geneva Conventions
John C. Yoo, ‘The Status of Soldiers and Terrorists under the Geneva Conventions’
Introduction:
In the darkly lit basement of the International Committee of the Red Cross (ICRC) Museum archives in Geneva, a small newspaper cutting from 2004 catches the eye. Setting out the allegations of abuse inflicted upon Iraqi prisoners in Abu Ghraib that the world has since had to contend with, the report alleges that the ICRC had repeatedly alerted US officials to their concerns.[1] This might have come as some surprise to John C. Yoo – a ‘legal scholar’ who had only the year before served as Deputy Assistant Attorney General in George W. Bush’s administration – who also published an article that year. In his 2004 journal submission, ‘The Status of Soldiers and Terrorists under the Geneva Conventions,’ Yoo sought to address head-on the legal justifications for the US government's denial of Geneva Convention protections to Taliban and al-Qaeda members during the administration’s self-titled ‘War on Terror’.[2] The following month, the US Supreme Court would rule, six to three, that Guantánamo Bay detainees were entitled for their cases of indefinite detention to be heard in federal courts.[3] Even before the consequences of Yoo’s legal approach became clear, an analysis of his argument will show how very wrong he was.
Yoo’s ‘argument’:
To his credit, Yoo’s article does not avoid Abu Ghraib, immediately setting out the differing approach of US policy within Iraq, as compared to al-Qaeda and Taliban members detained outside (although this is surely of little comfort to humiliated and abused Iraqi detainees).[4] While, theoretically, the ‘rights and privileges’ of Prisoners of War (POW) under the Geneva Conventions were extended to Abu Ghraib inmates, Yoo defines al-Qaeda and Taliban members as ‘illegal combatants’ and therefore not entitled to these provisions.[5] The basis for his assessment is the combatants’ conduct including lack of civilian distinction which, he argues, fails to meet the requirements for lawful combatancy under international humanitarian law (IHL).[6]
The Third Geneva Convention (GCIII) protects POWs from inhumane treatment during armed conflict.[7]Lawful combatants are authorised to participate directly in hostilities under IHL; defined in Article 4(A) of the GC III, as well as the more controversial Articles 43 and 44 of Additional Protocol I (API) to the Geneva Conventions.[8] Lawful combatants are also entitled to protections including POW status (GC III, Article 4), humane treatment (GCIII, Article 13), and immunity from prosecution (GCIII, Article 99).[9] Civilians are protected from direct targeting unless they take direct part in hostilities (API, Article 51(3), and APII, Article 4(1)), upon which point they lose these protections for the duration of participation in conflict.[10]
While pledging to treat detainees humanely and where consistent with military necessity aligned with the principles of GCIII, a 2002 White House briefing flatly denied al-Qaeda and Taliban entitlement to POW protection.[11] Yoo’s article echoes this distinction between ‘lawful’ and ‘unlawful’ combatants on the basis of conditions he argues neither group meets: operating under a responsible command, wearing a distinctive emblem, carrying arms openly, and adhering to laws of war.[12]
Yoo also argues that extending POW protections to unlawful combatants would undermine incentives for compliance with such laws of war, citing the Reagan administration's opposition to the 1977 API.[13] Yoo contrasts ‘privileges’ provided to POWs under the Conventions with rights afforded to criminals in US domestic law.[14] As the US administration’s interpretation demonstrates, ‘unlawful combatants’ occupy a legally contentious space; not qualifying for POW status and immunity from prosecution (GCIII, Article 45 and API, Article 44) while being still vulnerable to direct targeting and attack.[15] Uwe Steinhoff raises issues of morality and the necessity of self-defence in modern conflict, which muddies the complexities of distinguishing between ‘soldiers’ and ‘civilians’.[16] Yoo labours the argument that denying such protections is necessary for upholding national security, clearly attempting to justify torture to protect the US administration under Bush from accountability.[17]
Fundamental flaws in Yoo’s approach:
Yoo fails to convincingly expand his argument that defining the 9/11 terrorist attacks as criminal – opposed to acts of war – would create an incentive for further acts. Equally, the very concept of lawful and unlawful combatants and idea that unlawful combatants have no right to engage in hostilities but that lawful ones do –even enjoying immunity from prosecution – is the definition of rigging the system of international law. Al-Qaeda is not a state, though in Syria today, members of al-Qaeda are running the new, post-Assad government. The Taliban is not a state, but today, they run Afghanistan. These are just two examples of how countries like the US delegitimise combatants and legitimise them when they deem this convenient. Other countries may similarly arbitrarily justify abuses of those they claim ‘unlawful’ combatants. Will we draw the line to prevent this from being weaponised further?
[18]
By this logic, while Yoo argues that undermining the principle of distinction violates IHL, one can argue that so too has the US military. By labelling detainees ‘unlawful combatants,’ the administration has blurred the line further between civilians and combatants, weakening civilian protection and trust in the US military. Article 51(3) of API sets out that civilians are entitled to the protection afforded by the provisions, unless and for such time as they take a direct part in hostilities.[19]
The confusion demonstrates the evident need for clearer criteria for distinguishing combatants from civilians, which to some extent the ICRC’s Interpretive Guidance (completed between 2003 and 2008) has addressed, clarifying the principle that civilians are protected from direct attacks unless they directly participate in hostilities.[20] Dapo Akande’s summary draws attention to practical and conceptual challenges, for example classifying non-state actors and implementing a ‘capture rather than kill’ approach.[21] The ICRC’s guidance reflects the changing nature of ‘liberation’ wars and urban warfare, and provides a framework for IHL principles – stressing the temporal nature of loss of immunity (Recommendation 7), as civilians lose protection only ‘for such time’ as they are engaged in acts, giving three criteria for direct participation: threshold of harm, direct causation, and the ‘Belligerent Nexus’ – it leaves other issues unresolved, including the status of ‘irregular forces’.
The notorious December 2002 ‘Haynes Memorandum’ created combatants out of civilians, twisting the concept of international conflict due to al-Qaeda’s missing statehood, and deserves analysis before moving back to Yoo’s 2004 article.[22] The memo, also written by Yoo, shows how distinctions can be interpreted to justify contentious policies, redefining categories of protection. As a non-state actor, the memo argued that al-Qaeda detainees were outside of the scope of the Geneva Conventions. Taliban fighters were also excluded because of Afghanistan’s ‘failed state’ status (and who’s fault might this be?), as well as their non-compliance with GCIII’s Article 4 criteria. The memo also advised that the US President could suspend Geneva Convention protections in the interest of national security or self-defence.[23]
The memo is regarded as laying the groundwork for Guantánamo.[24] As Philippe Sands has surmised, ‘Holding the detainees outside the US and reclassifying them as “unlawful combatants” made it possible to bypass their legal rights… it purported to remove the international legal constraints which prevented interrogators.’[25] By sidestepping protections under the Convention Against Torture (CAT), it also implied that detainees classified as ‘unlawful combatants’ did not enjoy the protections of international human rights treaties, opening the door for aggressive interrogation techniques.[26] The US signed CAT in 1988, joining in 1994.[27] This should have been addressed in Yoo’s article, and the fact it was not mentioned weakens his argument.
Yoo's arguments raise three further concerns: the erosion of international norms because of the selective application of the Geneva Conventions, the practical challenge of seeking to define ‘unlawful combatants,’ and the ethical implications of denying basic protections. Firstly, Yoo’s rationale for withholding Geneva protections has destroyed any moral authority the US may have had in promoting IHL abroad.[28] Even the apparent distinction between US treatment of Iraqi detainees (afforded POW status) and Taliban/al-Qaeda detainees in US custody (initially not) shows an inconsistency in policy; a selective application that is damaging for the universality of international law. Moreover, Yoo's reading of international law is wilfully ignores its racist origins and applications.[29] Mohsen al Attar has written on these issues.[30]
Secondly, Yoo’s reliance on rigid categorisations of ‘lawful’ and ‘unlawful’ combatants overlooks the complexities of modern warfare, where non-state actors operate without the clear hierarchies and uniforms of traditional armies, nor should be expected to! The definition of lawful combatants demands that they follow the laws of war, and Yoo repeatedly stresses the importance of conduct.[31] Are there not ‘lawful combatants’ in the US, Israeli, UK military, and others, who have not followed the laws of war? Whether during the Iraq war or current genocide in Gaza, such ‘lawful’ combatants have violated international law. Should they all be denied POW status if held captive by international counterparts and ‘justifiably’ tortured?[32]
Finally, Yoo's focus on intelligence-gathering justifications, misguidedly prioritising a hollow form of security which dehumanises detainee, undermines the humanitarian purpose of the Geneva Conventions and legitimises abusive practices. This is not just a moral failure to address the ethical responsibility for treating detainees humanely, it is a legal oversight too; he does not once mention the crucial Common Article 3 included in all four Geneva Conventions, which was included to ensure that all non-active participants in conflict are treated humanely.[33]
In 2006, the US Supreme Court would rule again, this time finding that Common Article 3’s minimum protections applied to Guantánamo’s detainees, and that the government had acted unlawfully.[34] As Sands has since written, ‘War crimes or grave breaches of Geneva, as well as violations of the Torture Convention, cannot be justified on the grounds that they have produced useful material.’[35] Besides Yoo’s egregious attempt to justify torture, legal experts and criminologists almost unanimously recognise coerced confessions as false confessions, so any information attained this way would not serve the purpose that Yoo claims.[36]
‘No one detained in an armed conflict is out of the legal framework of IHL,’ adds Keiichiro Okimoto, former ICRC legal advisor in Iraq.[37] Okimoto defends the right of prisoners to seek POW status before a court. ‘Until their status is confirmed, they benefit from the protection in Geneva Convention III and Additional Protocol 1.’[38] If they fail to meet the standards for POW status, they still benefit from the protection in GC III and API in accordance with Article 44(4) of API. ‘The apparent disregard for the rules protecting persons deprived of liberty in recent years, in particular on the basis of the struggle against “terrorism,” is a concerning trend towards the breakdown of the rule of law in armed conflict situations,’ Okimoto adds.[39]
We must regard Yoo’s reasoning as legally inept, and responsible for laying the legal groundwork for the deployment of enhanced interrogation techniques which met the threshold for torture.[40] Ruba Ali Al-Hassani explored how attempts to justify torture ‘have been facilitated by the shifts and fluidity in the definition of “torture” set by the international bodies and conventions.’[41]
**Ruba's MA thesis: The Bush Administration and the Problem of Torture (2005)**
How have these shifts changed since, and according to which standards? Lisa Hajjar suggests that, since torture ‘was taken off the table’ through strategic litigation, the US administration’s shift from capture to targeted killing is its complex legacy.[42] The fight had to be waged in court, Hajjar says, ‘because the government based its interrogation and detention operations on novel and interpretations of federal and international laws.’[43]
Odudu and Allison argue that unlawful combatants, although not entitled to POW protection, are not without rights under IHL. Their push towards a more measured approach to classification, focused on the importance of civilian protection and human rights during armed conflict, is welcome.[44] Luisa Vierucci’s view that Guantánamo Bay Detainees are lawful combatants, entitled to the fair trials she argued for so convincingly in 2003, sits most comfortably with me.[45]
Ultimately, what is lawful and unlawful combatancy – and who decides, and how? The key to any definition, and thus determining detainee status and treatment, depends on the interpretation of taking a direct part in hostilities.[46] According to the ICRC’s criteria, such acts must be likely to adversely affect military operations, have a demonstrable causal link, and be specifically designed to directly cause the required threshold of harm to the detriment of the belligerent nexus. While the intention behind such neat definitions has merits – not least, to incentivise the protection of civilians – the idea that the definition of a civilian in a conflict zone could ever be so simple is inherently flawed and naïve. Equally arrogant is the idea that all militants must have control of a state and even be able to distinguish themselves from a civilian population to be seen as morally and legally worthy of protection.
Conclusion:
Two decades on from Yoo’s article, Mansoor Adayfi, a former Guantánamo detainee and author, is damning about the disappearance of the prison as a US political issue.[47] If neither Trump, Biden, nor Harris pledged to close Guantánamo Bay in the 2024 US election campaign, is it any wonder that so few in the Middle East pay any regard to the Geneva Conventions?
Yoo's failure to prioritise ethical and humanitarian considerations within his argument was bound to create a fundamentally flawed, US-centric article. The legal justification of torture which his interpretation allowed for is morally and doctrinally repugnant. The consequences of Yoo’s words continue to destroy lives today.
Bibliography
Primary Sources:
Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3, arts 43, 44, 51(3), and 96(3) <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/470> accessed 15 December 2024.
Additional Protocol II to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609, arts 1, 2, and 4(1) <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/475> accessed 15 December 2024.
Author’s interview with Ruba Ali (Al-Hassani), 20 December 2024.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, S Treaty Doc No 100-20, 1465 UNTS 85 <https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading> accessed 15 December 2024.
David S. Cloud, ‘Red Cross Found Widespread Abuse of Iraqi Prisoners,’ Wall Street Journal, 7 May 2004, Musée International de la Croix-Rouge et du Croissant-Rouge archives, Geneva, 18 December 2024.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I), 12 August 1949, 75 UNTS 31, arts 3, 13 and 50 <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/365> accessed 15 December 2024.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention II), 12 August 1949, 75 UNTS 85, art 3 and 13 <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/370> accessed 15 December 2024.
Geneva Convention relative to the Treatment of Prisoners of War (Geneva Convention III), 12 August 1949, 75 UNTS 135, arts 3, 4, 5, and 33 <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/375> accessed 15 December 2024.
Hague Convention (IV) Respecting the Laws and Customs of War on Land, and its Annex: Regulations concerning the Laws and Customs of War on Land (Hague Regulations), 18 October 1907, arts 1-3 and 13 <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/195> accessed 15 December 2024.
Hamdan v Rumsfeld 126 S.Ct 2749 (2006).
John C. Yoo, and Robert J. Delahunty, Memorandum for William Haynes II General Counsel, Department of Defense, Washington DC, Re Application of Treaties and Laws to Al-Qaeda and Taliban Detainees, 9 January 2002 <http://hrlibrary.umn.edu/OathBetrayed/Yoo-Delahunty%201-9-02.pdf> accessed 15 December 2024.
Rasul et al. v Bush 124 S.Ct 2686 (2004).
White House, Fact Sheet on Status of Detainees at Guantanamo, 7 February 2002 <https://georgewbush-whitehouse.archives.gov/news/releases/2002/02/20020207-13.html> accessed 15 December 2024.
Secondary Sources:
Amnesty International, ‘Beyond Abu Ghraib: Detention and Torture in Iraq’ (6 March 2006) <https://www.amnesty.org/en/documents/mde14/001/2006/en> accessed 15 December 2024.
Antonio Cassese, ‘Are International Human Rights Treaties and Customary Rules on Torture Binding upon US Troops in Iraq?’ (2004) 2 Journal of International Criminal Justice 872.
Dapo Akande, ‘Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities’ (2010) 59 International and Comparative Law Quarterly 180.
Dapo Akande, ‘Clearing the Fog of War?’ (4 June 2009) EJIL:Talk! <https://www.ejiltalk.org/clearing-the-fog-of-war-the-icrcs-interpretive-guidance-on-direct-participation-in-hostilities/> accessed 15 December 2024.
Dino Kritsiotis, ‘Mercenaries and the Privatization of Warfare’ (1998) 22 Fletcher Forum of World Affairs 11.
Emily Crawford, and Alison Pert, International Humanitarian Law (Cambridge University Press 2015).
Fleur Johns, ‘Guantánamo Bay and the Annihilation of the Exception’ (2005) 16 European Journal of International Law 613.
Holly Honderich, ‘US Jury Awards $42m to Ex-Detainees at Iraq’s Abu Ghraib’ (12 November 2024) BBC News <https://www.bbc.co.uk/news/articles/cn4v1ydkj04o> accessed 15 December 2024.
Human Rights Watch, ‘Getting Away with Torture: The Bush Administration and Mistreatment of Detainees’ (12 July 2011) <https://www.hrw.org/report/2011/07/12/getting-away-torture/bush-administration-and-mistreatment-detainees> accessed 15 December 2024.
International Committee of the Red Cross (ICRC), ‘2024 ICRC Report on IHL and the Challenges of Contemporary Armed Conflicts’ (26 September 2024) <https://www.icrc.org/en/report/2024-icrc-report-ihl-challenges> accessed 15 December 2024.
James LaRock, ‘The Decline and Fall of John Yoo’ (August 3 2022) Balls and Strikes<https://ballsandstrikes.org/legal-culture/decline-and-fall-of-john-yoo> accessed 15 December 2024.
John C. Yoo, ‘The Status of Soldiers and Terrorists under the Geneva Conventions’ (2004) 3 Chinese Journal of International Law 135.
Keiichiro Okimoto, ‘The Protection of Detainees in International Humanitarian Law’ in Sarah Perrigo, and Jim Whitman (eds), The Geneva Conventions Under Assault (Pluto Press 2010).
Keseme Philip Odudu, and Ebitari Joshua Allison, ‘International Humanitarian Law: The Status of Unlawful Combatants’ (2017) 8 Nnamdi Azikiwe University Journal of International Law and Jurisprudence 38.
Lisa Hajjar, The War in Court (University of California Press 2024).
Luisa Vierucci, ‘Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantanamo Bay Detainees are Entitled’ (2003) 1(2) Journal of International Criminal Justice 284.
Mansoor Adayfi, ‘From Trump To Harris, Political Silence on a Normalized Guantanamo’ (25 November 2024) Forever Wars <https://www.forever-wars.com/from-trump-to-harris-political-silence-on-a-normalized-guantanamo> accessed 15 December 2024.
Michael Byers, War Law: Understanding International Law and Armed Conflict (Atlantic Books 2005).
Mohsen al Attar, ‘Pathways in the Struggle Against the Racialised Universe of International Law’ OpinioJuris (5 April 2022) <https://opiniojuris.org/2022/04/05/a-corrective-methodology-pathways-in-the-struggle-against-the-racialised-universe-of-international-law> accessed 20 December 2024.
Mohsen al Attar, ‘Of Anti-Colonialism and International Legal Pedagogy’ OpinioJuris (22 February 2023) <https://opiniojuris.org/2023/02/22/of-anti-colonialism-and-international-legal-pedagogy-can-we-visualise-a-post-westphalian-world> accessed 20 December 2024.
Mohsen al Attar, ‘Tackling White Ignorance in International Law’ OpinioJuris (30 September 2022) <https://opiniojuris.org/2022/09/30/tackling-white-ignorance-in-international-law-how-much-time-do-you-have-its-not-enough> accessed 20 December 2024.
Nathaniel Berman, ‘Privileging Combat? Contemporary Conflict and the Legal Construction of War’ (2004) 43 Columbia Journal of Transnational Law 1.
Nils Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law’ (ICRC 2009).
Philippe Sands, Lawless World (Allen Lane 2005).
Philippe Sands, Torture Team (Palgrave Macmillan 2008).
Robin Geiß, Andreas Zimmermann, and Stefanie Haumer (eds), Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law (Cambridge University Press 2017).
Ruba Ali Al-Hassani, ‘The Bush Administration and the Problem of Torture: The Limits of Justification’ (MA Thesis, University of Toronto 2005). <https://www.academia.edu/6921099/The_Bush_Administration_and_the_Problem_of_Torture_The_Limits_of_Justification_2005> accessed 15 December 2024.
Uwe Steinhoff, ‘Civilians and Soldiers’ in Igor Primoratz (ed), Civilian Immunity in War (Oxford University Press 2007).
Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press 2004).
Yumna Rizvi, ‘10 Years Later: The CIA Torture Report and America’s Accountability Deficit’ (9 December 2024) The Hill <https://thehill.com/opinion/national-security/5026841-cia-torture-report-10-year-anniversary> accessed 15 December 2024.
---
[1] David S. Cloud, ‘Red Cross Found Widespread Abuse of Iraqi Prisoners,’ Wall Street Journal, 7 May 2004, Musée International de la Croix-Rouge et du Croissant-Rouge archives, Geneva, 18 December 2024.
[2] John C. Yoo, ‘The Status of Soldiers and Terrorists under the Geneva Conventions’ (2004) 3 Chinese Journal of International Law 135.
[3] Rasul et al. v Bush 124 S.Ct 2686 (2004); Michael Byers, War Law: Understanding International Law and Armed Conflict (Atlantic Books 2005) 129-130.
[4] Amnesty International, ‘Beyond Abu Ghraib: Detention and Torture in Iraq’ (6 March 2006).
[5] Yoo (n 2) 135-6.
[6] ibid, 141.
[7] Geneva Convention relative to the Treatment of Prisoners of War (Geneva Convention III), 12 August 1949, 75 UNTS 135.
[8] Geneva Convention III (n 7) art 4(A); Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3, arts 43 and 44.
[9] Geneva Convention III (n 7) arts 4, 13, and 99.
[10] Additional Protocol I (n 8) art 51(3); Additional Protocol II to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609, art 4(1).
[11] White House, Fact Sheet on Status of Detainees at Guantanamo, 7 February 2002.
[12] Yoo (n 2) 140.
[13] ibid 147.
[14] ibid 150.
[15] Geneva Convention III (n 7) art 45; Additional Protocol I (n 8) art 44.
[16] Uwe Steinhoff, ‘Civilians and Soldiers’ in Igor Primoratz (ed), Civilian Immunity in War (Oxford University Press 2007).
[17] Author’s interview (n 17).
[18] ibid.
[19] Additional Protocol I (n 8) art 51(3).
[20] Nils Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law’ (ICRC 2009).
[21] Dapo Akande, ‘Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities’ (2010) 59 International and Comparative Law Quarterly 180.
[22] John C. Yoo, and Robert J. Delahunty, Memorandum for William Haynes II General Counsel, Department of Defense, Washington DC, Re Application of Treaties and Laws to Al-Qaeda and Taliban Detainees, 9 January 2002.
[23] ibid 2.
[24] Philippe Sands, Torture Team (Palgrave Macmillan 2008).
[25] Philippe Sands, Lawless World (Allen Lane 2005) 163.
[26] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, S Treaty Doc No 100-20, 1465 UNTS 85.
[27] ibid.
[28] Sands (n 25); Michael Byers (n 3) 135.
[29] Author’s interview (n 17).
[30] Mohsen al Attar, ‘Pathways in the Struggle Against the Racialised Universe of International Law’ OpinioJuris (5 April 2022); ‘Of Anti-Colonialism and International Legal Pedagogy’ OpinioJuris (22 February 2023); ‘Tackling White Ignorance in International Law’ OpinioJuris (30 September 2022).
[31] Yoo (n 2) 138-141.
[32] Author’s interview (n 17).
[33] Yoo (n 2) 140.
[34] Hamdan v Rumsfeld (2006) 126 S Ct 2749.
[35] Sands, Torture Team (n 25) 148.
[36] Author’s interview (n 17).
[37] Keiichiro Okimoto, ‘The Protection of Detainees in International Humanitarian Law’ in Sarah Perrigo, and Jim Whitman (eds), The Geneva Conventions Under Assault (Pluto Press 2010) 100.
[38] ibid 102.
[39] ibid 129-130.
[40] Yumna Rizvi, ‘10 Years Later: The CIA Torture Report and America’s Accountability Deficit’ (9 December 2024) The Hill <https://thehill.com/opinion/national-security/5026841-cia-torture-report-10-year-anniversary> accessed 15 December 2024.
[41] Ruba Ali Al-Hassani, ‘The Bush Administration and the Problem of Torture: The Limits of Justification’ (MA Thesis, University of Toronto 2005).
[42] Lisa Hajjar, The War in Court (University of California Press 2024).
[43] ibid.
[44] Keseme Philip Odudu, and Ebitari Joshua Allison, ‘International Humanitarian Law: The Status of Unlawful Combatants’ (2017) 8 Nnamdi Azikiwe University Journal of International Law and Jurisprudence 38.
[45] Luisa Vierucci, ‘Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantanamo Bay Detainees are Entitled’ (2003) 1(2) Journal of International Criminal Justice 284.
[46] Additional Protocol I (n 8) art 51(3).
[47] Mansoor Adayfi, ‘From Trump To Harris, Political Silence on a Normalized Guantanamo’ (25 November 2024) Forever Wars <https://www.forever-wars.com/from-trump-to-harris-political-silence-on-a-normalized-guantanamo> accessed 15 December 2024.
