Description
Under the terms of the Istanbul Protocol, if states have knowledge of torture having taken place, they have specific obligations to provide redress and rehabilitation for victims, and to pursue prosecutions for those responsible. Yet despite signing the protocol, the US continues to detain torture victims in Guantanamo Bay and in some cases, to pursue prosecutions against them within the Military Commissions system. Existing IR literature on US rendition and torture in the context of the war on terror has tended to focus on the program during the period of the Bush administration and shortly after. These accounts tell us much about the political contestation surrounding the torture norm during the headiest days of the so-called war on terror. However, with some exceptions, they have tended to view this contestation as largely settled in favour of the prohibition. Consequently, we are left with the question of how practices of detention and prosecution have persisted despite US commitment to the Istanbul Protocol and effective condemnation of US torture. This paper draws on interviews with the legal defence teams of the remaining Guantanamo Bay inmates and a broader analysis of the program to develop an account of how ongoing detention and/or trial by Military Commissions is possible. While the arguments of this paper are still being developed, it is anticipated that the concept of lawfare can help us develop an insufficient but necessary explanation.
