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Keywords:

  • counterterrorism;
  • international law;
  • human rights;
  • humanitarian law

In the “war on terror,” the Bush administration sought to delegitimize international human rights law (IHRL), international humanitarian law (IHL), and customary law by claiming that they were “quaint” and “obsolete” in the face of the threat from al Qaeda. On this view terrorist suspects fell into a legal “black hole” and could be deprived of the most basic rights, such as the right to recognition as persons before the law. International law supporters reacted by reconsidering fundamental questions, like the degree to which human rights may be restricted in states of emergency, and the clarity of the civilian/combatant distinction in IHL. In response to the black hole theory, the “full coverage” and “evolutionary” theories identified four principles within IHL and IHRL that enable existing law to address terrorist threats: the principles of complementarity, maximal extension, restricted derogation, and regulated detention. The Obama administration has so far enacted the “evolutionary” approach.