The war against terrorism has forced the US Supreme Court to rethink laws on armed conflict, argue Ben Brandon and Ben Watson


The Geneva Conventions envisage wars of limited duration between states. But the 'war on terror' is asymmetric and seemingly endless. Western governments assert that conduct in this new war cannot be measured against the old standards. Two recent US Supreme Court judgments on the rights of 'illegal combatants', and the controversy over detention without trial here in the UK and in Iraq prompt the question - does a new war demand new law?



After the Second World War, the Geneva Conventions were drafted to protect captured enemy soldiers and civilians. Any doubt over an individual's status would be referred to an independent tribunal. The conventions reflected the contemporary experience of warfare - belligerents lose soldiers and civilians to the other side but no war lasts for ever. The shared interest of nations was to protect those captured from abuse, and ensure their return at war's end.


The 'war on terror' is different. Western nations face an enemy that is stateless, and has no immediate territorial aim or concern for international law.



Crucially, the length of conflict is described in indefinite terms. Until now, the law on detention of enemy personnel has been debated extensively, but only in the abstract. Recently, judicial process in the US caught up.



The Supreme Court ruled in Rasul et al. v Bush, President of the United States, et al. that US courts can consider the legality of the detention of foreign nationals in Guantanamo Bay because the US exercises 'plenary and exclusive' jurisdiction over the base. In Hamdi et al. v Rumsfeld, Secretary of Defence, et al. the court held that a US citizen can contest the factual basis of his detention without trial before a neutral decision-maker. Having allowed access to the courts, the sufficiency of the established laws of war falls to be considered.



The court in Hamdi stated that 'long-standing law-of-war principles' were the basis for its ruling that Congress had authorised the detention of 'unlawful combatants' for the duration of the conflict. The court accepted that the war in Afghanistan is far from over, and therefore the continued detention of Taliban fighters captured there is lawful. But the court warned: 'If the practical circumstances of a given conflict are entirely unlike those conflicts that informed the development of the law of war, that understanding may unravel.'



In the UK, Home Secretary David Blunkett has suspended part of the European Convention on Human Rights to permit the detention of terrorist suspects indefinitely without trial. The derogation is justified on the grounds that the 'war on terror' has created a 'public emergency'. In October, the House of Lords will have to consider whether such an emergency exists.


Conflicts between the government and courts might be avoided if reliance is placed on 'sunset clauses', such as those built into UK anti-terrorist legislation. They allow legislative supervision of the war and on ongoing detentions. Similar provisions are being suggested for US anti-terrorist laws requiring increasing congressional majorities each year the conflict continues.


More radically, given that the current US administration has argued that new customary international law rules governing the conduct of warfare are emerging, might the Red Cross convene a conference to modernise the Geneva Conventions to meet the challenges of this 'war without end'?


Whatever solution is arrived at, the significance of these issues will only increase with time. In the Supreme Court, the guardians of the rule of law have acted decisively. Whether or not the 'war against terror' endures for generations, in the US at least, the intervention of law is guaranteed.



Ben Brandon and Ben Watson are barristers specialising in UK and international criminal law at 3 Raymond Buildings, London