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By Vendela Runold

He says it almost in passing, one among many of his throw away comments. It is February 2016 and the world is slowly coming to terms with the fact that Donald Trump is truly in the race to become the Republican Party’s candidate for the American presidency. The hopeful, almost smug, Trump is reacting to President Obama’s recent comment on wanting to close down the detention facility of Guantanamo Bay on the coast of Cuba once and for all. Trump asserts that he would keep it open, and would “load it up with some bad dudes”. The phrasing was not entirely foreign in a campaign of “bad hombres” and “nasty women”, but the choice of words is nonetheless important in hinting at the now President’s possible stance on handling “Prisoners of War”. After the Bush administration’s search for linguistic loopholes to fit its agenda, it seems like a Prisoner of War’s fate may once again be wrapped up in the semantics.

Under the Geneva Convention and International Humanitarian Law, when Prisoners of War are captured, they are entitled to certain legal rights associated with their “Prisoner of War” status. These include humane treatment, release at the end of the war, and more specific rights, concerning things like hygiene and nutrition. However, the Convention can be interpreted as only applying to those who fall into the category of “lawful combatants”. The  Convention also only recognizes war between two or more states, making it increasingly ill-suited to apply in the context of modern conflicts, which are often very different from the inter-state war of earlier times.

When President George W. Bush declared the “War on Terror” after 9/11, linguistic loopholes were at the core of the justifications behind the detaining of prisoners at the newly opened Guantanamo Bay, and the stated reasons for not abiding by the Geneva Convention’s stipulations. By labeling the detainees “illegal enemy combatants”, while also keeping them off American territory, the administration could bypass both the Convention and American law, while still deeming themselves just and law-abiding.

Barack Obama’s administration tried to limit the authority of the US military to detain people at Guantanamo by wanting to develop new standards, and dropping the “enemy combatant” phrasing that had been so important to the previous administration. As a symbolic act, he signed an executive order just after taking office in 2009 to have the facility closed within a year. While Obama did succeed in transferring a significant portion of the detainees from Guantanamo, the Republican Congress’ opposition meant that he did not manage to completely close it down. When Trump was inaugurated on the 20th of February of this year, 41 detainees still remained at the facility, although this compares with 242 in 2009 and the all-time peak population of 684 in 2003. The progress made by Obama will not continue under Trump, but rather may be actively reversed. On top of the statement made during his campaign, he tweeted two weeks prior to his inauguration that no more releases should be made from Guantanamo, and the page about its closing has now been removed from the government’s website.

Many have warned that the new President’s unpredictability acts as one of his most dangerous qualities, and his controversial statement that torture, or “enhanced interrogation techniques”, works is a telling example. It is true that he later stated that he will follow the lead of the cabinet and his Secretary of Defense, and keep within legal limits. However, it is important to consider the implications of the supposed ‘leader of the free world’ so lightly expressing opinions in clear opposition to International Humanitarian Law. There is a risk that we may see a changing doctrine regarding the American treatment of war ethics, departing from the perceived liberal stance of Obama and the interventionist, but always legally justifying, Bush administration.

The United States’ potential move away from its longstanding image of embodying democratic and righteous ideals will have consequences. While the Bush administration was heavily criticized for its actions, with allegations of torture and violating humanitarian law, it still acknowledged the need to appear as though it was operating within the lines of international law. Its actions were framed as necessary and legal measures against an ominous threat. Trump, on the other hand, may usher in a very different policy era. Differing choices of terminology may give a hint: from Bush’s formal “illegal enemy combatant” to Trump’s blunt “bad dudes”.

It may be an empty threat to “load up” Guantanamo again, as some of Trump’s other promises will surely also turn out to be, and the torture ban passed in the Senate in 2015 will hopefully ensure that detainees do not face “enhanced interrogation techniques”. But with the plans of building a wall along the Mexican border being set into motion, a policy considered one of Trump’s more improbable promises, it is important to stay cautious. And perhaps it is also time for International Humanitarian Law to change, in order to better suit the dynamics of contemporary conflict, particularly in a world where borders are becoming increasingly porous and contentious. With the appropriate framework, it would be easier to ensure that linguistic loopholes do not undermine International Law and that political and populist whims do not get in the way of upholding human rights.

By Vendela Runold

Illustration by Agnes Björn

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