Rethinking Guantánamo: Unlawful Confinement as Applied in International Criminal Law

Abstract

Although criticism of US-led detention at Guantanamo 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 Guantanamo 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 Guantanamo 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.