Long after George W. Bush has left office, his 'war on terror' rumbles on, even if the term has been used rather less of late.
The US Congress' current proposals to allow indefinite military detention of its citizens without charge or trial, and America's ongoing use of unmanned attack aircraft ('drones') in Pakistan, Yemen and elsewhere to assassinate opponents (including at least one US citizen), highlight anew the need for clear thinking when it comes to that much abused term, 'war', and what the law of war actually allows.
Many people have commented that 'war on terror' is a nebulous term. Terry Jones, of Monty Python fame, asked, in Terry Jones' War on the War on Terror: 'How do you wage war on an abstract noun? ... It's well known, in philological circles, that it's very hard for abstract nouns to surrender.' Richard Jackson notes that the phrase was used to build up a good-evil duality and to desensitise us to the human rights violations which the new 'war footing' would involve.
Even if one accepts the dubious premise that there is a war on, however, war has not been law-free for a very long time. Ever since St Augustine proposed requirements for a 'just war', international law has set limits on how one may conduct hostilities.
It is true that there are fewer laws governing conflicts which do not have countries as belligerents on both sides, than there are for those that do. The bulk of the four Geneva Conventions of 1949 only apply to the former. Nevertheless, other conflicts are not 'law free'.
Even if hostilities involve non-state actors, common article 3 of the Conventions and customary law mandate certain minimum standards. Recent developments, especially the authorisation of extra-judicial killings and detentions of US citizens by American forces, suggest that states need a reminder of international law obligations owed to people found in a 'war' zone.
Firstly, international law only recognises a distinction between combatants (who carry arms openly and take part in hostilities and are therefore legitimate targets) and civilians. Importantly, one is either a combatant (even if not part of the armed forces or a regular military formation) or not. 'Unlawful enemy combatant' is a label