‘A monstrous failure of justice’? Guantanamo Bay and national security challenges to fundamental human rights

Abstract

This article considers challenges to the existing international human rights regime in the post-9/11 era. It uses an interdisciplinary approach that brings together issues of politics and law by focussing on international legal provisions and setting them into the context of International Relations theory. The article examines the establishment of Guantanamo Bay as a detention centre for suspected terrorists captured in the 'war on terror' and focuses on violations of international human rights and humanitarian law in the name of national security. This article demonstrates that the wrangling over Guantanamo Bay is an important illustration of the complex interaction between interests and norms as well as law and politics in US policy making. The starting point is that politics and law are linked and cannot be seen in isolation from each other; the question that then arises is what kind of politics law can maintain.The events of 9/11 had a profound effect on human rights in US national policy; established international human rights standards came increasingly second place behind national security considerations and advances in international human rights that had been made over the past decades were suddenly called into question for the need to emphasise national security. America declared a 'war on terror' with far

Social immunology: A theory of the immune processes of social systems

“…For example, since 2001, some Western legal systems have adopted emergency provisions and have introduced an increasing number of measures that commonly intend to deal with a diffuse fear of terrorist attacks. In some cases, these measures revealed a common characteristic: a collision between the “logic of consequences” underlying individual states' attempts to defend their sovereignty and protect their citizens and the “logic of appropriateness” based on legal constraints at domestic and international levels (Birdsall, 2010). States designed new legislation and provisions that conferred special powers on law enforcement agencies and military authorities and that centred on purpose‐oriented decisions: a specific style of decision‐making oriented towards the future and primarily focused on the ability to guarantee security and prevent new terrorist attacks (Tosini, 2012).…”

Why Architecture?

“…The idea that the “war on terror” is a new kind of war requiring “novel mechanisms” (Birdsall, 2010, pp. 688);…”

“…The revival of “the doctrine of the unitary executive, in which the President’s actions as commander-in-chief are supposedly beyond the law” (Birdsall, 2010; Gregory, 2006, p. 412).…”

Violence from the perspective of social immunology: a contribution to social systems theory

“…underlying individual states' aim to defend their sovereignty and protect their citizens, on the one hand, and the "logic of appropriateness" based on legal constraints at domestic and international levels, on the other (Birdsall 2010). States have designed new legislation and provisions that have conferred special powers on law enforcement agencies and military authorities and have centered on purpose-oriented decisions: a specific style of decision-making oriented toward the future and primarily focused on the ability to guarantee security and prevent new terrorist attacks.…”