ABSTRACT The international humanitarian law of armed conflict … constitutes a means to an end: the preservation of humanity in the face of the reality of war. (Kalshoven & Zegveld, 2001, p.203) If the rule of law means anything globally, it must mean that counter‐terrorism defence is undertaken consistently with international law and its institutions. (Horrigan, 2003, p. 287) In situations of war or emergency, as in the current ‘war on terrorism’, international humanitarian law clearly defines what is permissible, particularly in terms of humanitarian and human rights legislation governing state activity. There remains, however, a lack of clarity around the terms ‘unlawful combatant’, ‘unprivileged combatant/belligerent’, widely used in case law, legal literature and military manuals, though not terms used in treaties. They raise debate concerning interpretation and consequent applicable protective processes (Dormann, 2003). This article assesses the status and treatment of the Guantanamo Bay detainees, f...