international human rights law, but that the protections embodied in international humanitarian law did not apply to Guantánamo detainees since, among other reasons, al Qaeda is not a High Contracting Party to the Geneva Conventions and members of the Taliban did not distinguish themselves from the civilian population or comply with the laws of war. As such, the United States considered Guantánamo detainees to be “unlawful enemy combatants”, who were not entitled to protections under international humanitarian law.12 The United States also sought to place these detainees outside the protection of the US Constitution and laws by detaining them at Guantánamo Bay. 107. Under the Obama administration, the United States has abandoned terminology referring to the “war on terror” but still considers itself in an armed conflict without geographical boundaries against al Qaeda, the Taliban and associated forces13 that justifies the detention of “unprivileged enemy belligerents” at Guantánamo. The US government has maintained that Guantánamo detainees are being lawfully held under the Authorization for Use of Military Force (AUMF) as informed by the laws of war until a competent authority determines that “the conflict has ended or that active hostilities have ceased”.14 The United States’ position that the International Covenant on Civil and Political Rights (ICCPR) does not apply extraterritorially and that international humanitarian law is the lex specialis during armed conflicts remains unchanged. In addition to considering itself bound by Common Article 315 governing the treatment, including the conditions of detention and interrogation of individuals held at Guantánamo, the United States has also announced its support to the principles set forth in Article 75 of the Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts (API)16. The constitutional protections afforded to Guantánamo detainees are decided on a clauseby-clause basis by the US courts. 12 United States President George W. Bush, “Memorandum: ‘Humane Treatment of Taliban and al Qaeda detainees’”, 7 February 2002, pp. 1-2, <http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf>; United States Press Secretary Ari Fleischer, “White House Press Secretary Announcement of President Bush’s Determination re Legal Status of Taliban and Al Qaeda Detainees”, United States Department of State website, 7 February 2002, <http://www.state.gov/s/l/38727.htm>; “Assessing Damage, Urging Action”, International Commission of Jurists, op. cit., note 10, p. 51; Gabor Rona, “Interesting Times for International Humanitarian Law: Challenges from the ‘War on Terror’”, Fletcher Forum of World Affairs, Vol. 27:2, 2003, pp. 65-66, <https://www.icrc.org/eng/assets/files/other/rona_terror.pdf >. 13 “National Strategy for Counterterrorism”, June 2011, The White House website, p. 2, <https://www.whitehouse.gov/sites/default/files/counterterrorism_strategy.pdf>: “The United States deliberately uses the word “war” to describe our relentless campaign against al-Qa‘ida. However, this Administration has made it clear that we are not at war with the tactic of terrorism or the religion of Islam. We are at war with a specific organization—al-Qa‘ida.” See, also, Jonathan Hafetz, “Military detention in the ‘war on terrorism’: Normalizing the exceptional after 9/11”, Columbia Law Review, Vol. 112, 20 March 2012, p. 31, <http://www.columbialawreview.org/wp-content/uploads/2012/03/31_Hafetz.pdf>. 14 Department of Defense (DoD) Directive 2310.01E, “DoD Detainee Program”, 19 August 2014, paras. 3(f), 3(m)(5), <http://www.dtic.mil/whs/directives/corres/pdf/231001e.pdf>. 15 United States Supreme Court, Hamdan v. Rumsfeld, op. cit., note 11. 16 The United States is not a party to API, but does recognize the principles set forth in Article 75 in relation to international armed conflicts and declared that the Article’s principles are to be applicable to all individuals it detains in an international armed conflict. Article 75 of API is considered customary international humanitarian law, and, as such, is applicable to the armed conflict in Afghanistan, including to members of al Qaeda, the Taliban and associated forces. Article 72 of API further makes it clear that the guarantees set out in the Protocol are additional to “other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict”. Jelena Pejic, “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”, International Review of the Red Cross, Vol. 87, No. 858, June 2005, p. 377, <https://www.icrc.org/eng/assets/files/other/irrc_858_pejic.pdf>; “Fact Sheet: New Actions on Guantánamo and Detainee Policy”, The White House website, 7 March 2011, <http://www.whitehouse.gov/the-pressoffice/2011/03/07/fact-sheet-new-actions-guant-namo-and-detainee-policy>; Department of Defense Directive 2310.01E, op. cit., note 14, para. 3(a)(3). 37