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Jihad and Just War in the War on Terror$
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Alia Brahimi

Print publication date: 2010

Print ISBN-13: 9780199562961

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199562961.001.0001

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Jus in Bello, Guantanamo Bay, and the War on Terror

Jus in Bello, Guantanamo Bay, and the War on Terror

Chapter:
(p.73) Chapter 3 Jus in Bello, Guantanamo Bay, and the War on Terror
Source:
Jihad and Just War in the War on Terror
Author(s):

Alia Brahimi (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199562961.003.0004

Examining questions of jus in bello, this chapter begins by applying the principles of proportionality and discrimination to the invasion of Iraq. The analysis then focuses on the Bush administration's justifications for the treatment of ‘non‐lawful combatants’ at Guantanamo Bay. Using the logic of ‘supreme emergency’, alleged terrorists were stripped of Geneva Convention protections because the defensive just cause was presented as unusually urgent and the stakes were said to be civilizational. First‐order principles such as the prohibition against torture were qualified by the emergency of the jus ad bellum, thus rendering supposedly absolute human rights contingent upon the state of the world. The Bush administration's ‘choice of evils’ strategy was critiqued by other lawyers, governments, and human rights groups worldwide, as well as by members of the Bush administration's Department of State.

Keywords:   jus in bello, proportionality, discrimination, non‐combatant immunity, civilians, Bush administration, war on terror, Guantanamo Bay, torture, supreme emergency, Geneva Conventions, WMD, necessity

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