64 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights degrading treatment” from the scope of violations considered to be war crimes under the US War Crimes Act; and defines other elements of Common Article 3 (such as torture and ill-treatment) narrowly.139 In effect, this deficiency provides immunity from prosecution to officials involved in secret detention and coercive interrogation techniques that could be considered to violate Common Article 3, but which would fall outside the scope of the amended War Crimes Act.140 The fact that official policy appears to be aimed at circumventing the long established and peremptory norm prohibiting torture and cruel, inhuman or degrading treatment is one of the most deplorable consequences of the war paradigm. The legal vacuum established by the administration in this area has only partially been plugged: the executive still arrogates to itself the authority to determine the rules governing the treatment of detainees held by intelligence services (see Chapter Four). No reparations have been made to individual victims. 6. Conclusions & Recommendations: war paradigm This Chapter differs from others in that it focuses largely on one country – the United States of America. The impetus for describing current counter-terrorist efforts as a “war”, and seeking to apply the laws of war to those efforts, has come from the US. Allies of the US have expressed concerns about the responsibility to respond effectively to terrorism, but while some have invoked the “war on terror” in a rhetorical sense, none have embraced the war paradigm, as such, in those efforts. The US stance has caused serious damage to the protections accorded by both international human rights and humanitarian law. The war paradigm has given rise to several problems: there is inter alia the false implication that one of the parties to a conflict can invoke the rights and privileges of warfare without affording reciprocal rights to its enemies or accepting the corresponding legal constraints, and the mistaken claim that this can place some individuals in a “legal black hole”. The damage caused by these assertions needs to be repaired. The war paradigm has, in the view of the Panel, led to specific and serious human rights and humanitarian law violations: there should be independent and impartial investigations into the alleged human rights violations and breaches of humanitarian law, and remedies should be provided. 139 Section 6(b) of the MCA. 140 In addition, according to Section 1004 of the DTA, in any civil action or criminal prosecution against US personnel who engaged in practices involving detention and interrogation of terrorism suspects which were “officially authorized and determined to be lawful at the time”, defendants may use it as a defence that they “did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful”. Good faith reliance on advice of counsel should be “an important factor” in determining whether a person of ordinary sense and understanding would not know the practices were unlawful. Section 8 (b) of the MCA made this defence available to US personnel accused of violating Common Article 3 between 11 September 2001 and 30 December 2005, when the DTA was enacted.