International Law and Popular Culture Symposium: ‘The Mauritanian’, Guantanamo, and the Politics of International Law

[Vivek Bhatt is an Assistant Professor of International Law at Utrecht University, a Fellow at the Netherlands Institute of Human Rights (SIM) and the Montaigne Centre for Rule of Law and Administration of Justice, and a Member of the Essex Human Rights Centre.]

Introduction 

Some of the most widely seen photographs from the war on terror show US soldiers at Guantanamo Bay standing over prisoners who are shackled and dressed in orange jumpsuits. These outfits have come to symbolise the morbid events of the past two decades. The Guantanamo orange jumpsuit has been donned by protesters outside the White House and is even available for purchase as a Halloween costume from popular online retailers. In the 2021 film, The Mauritanian, the orange jumpsuit symbolises the dehumanisation and physical degradation of Guantanamo detainees. Each time we see the protagonist, a former prisoner named Mohamedou Ould Slahi, he seems to shrink further into his jumpsuit, more injured and haggardly.

As noted by Hohmann and Joyce, international law is often seen as “remote and technical: something that happens only far away at the UN, or when world leaders shake hands at lavish, highly securitised summits” (p. 2). But the law and its violation are often encountered by the masses, including through the visual media of photographs, art, television, and film. When we see a Guantanamo detainee on film, when we recognise the orange jumpsuit from newspapers and human rights campaigns, we are involved in an encounter with international law. And in developing our own understanding of such a film, we participate in international law’s life within the global body politic.

This relationship between film and international law is increasingly being explored in academic literature. The scholar of international cine-legalities – to adopt Simpson’s terminology – is interested in the ways in which films present ways of thinking about international law. Prost writes, “Films – and popular culture more generally – play an essential role in forming our affective landscapes. They provide the signs, images, stories, metaphors, plotlines and characters with which we make sense of our lives and the world around us.”

In what follows, I show how The Mauritanian reveals and obscures certain ways of thinking about international law. Though I build upon the literature noted above, I advocate for the development of a postmodern approach to the relationship between international law and film. A film is, as Simpson observes, open to multiple interpretations. It can, therefore, furnish many different understandings of international law depending on how it is perceived by individual audience members. Yet scholars should also be attuned to two further features of films. Firstly, films can tap into popular memory by replicating recognisable symbols like the orange jumpsuit. Films can, therefore, be part of a broader corpus of images depicting issues relevant to international law. Secondly, we should also pay attention to the silences and ambiguities of films. These also tell stories about international law, invisibly shaping audience understandings of the law’s limitations, relevance, and reach.

Synopsis and Reception

The Mauritanian tells the true story of Slahi (Tahar Rahim), who was taken to Guantanamo Bay in 2002 and released without charge in 2016. The film is structured around the work of two lawyers: Slahi’s defence lawyer Nancy Hollander (Jodie Foster) and military prosecutor Stuart Couch (Benedict Cumberbatch). The plot is driven by these two lawyers’ pursuit of truth and justice. Hollander develops a friendship with Slahi and, over time, convinces him to send her written accounts of his time at Guantanamo Bay. Couch, meanwhile, determinedly seeks access to the MFRs (“memoranda for the record”) of Slahi’s interrogation – documents the US Government is initially unwilling to disclose. Hollander and Couch both discover that Slahi was held incommunicado by US Military Intelligence and subjected to torture. This revelation leads Couch to quit the prosecution, and it leads Hollander to victory in Slahi’s habeas corpus petition. Slahi is held for another six years at the behest of the Obama administration, but is repatriated to Mauritania in 2016, returning home to a hero’s welcome.

The film received a mixed reception. Foster won the 2021 Golden Globe for Best Supporting Actress in a Motion Picture, and the film was nominated for the 2021 BAFTA for Best Film. But The Mauritanian failed to receive a single nomination for the SAGs or the Oscars, a rare outcome in cinematic awards seasons. Reviews were similarly divided. The Independent’s Clarisse Loughrey gave the film four stars, noting that it “directly confronts” the fact that a “public desire for blood, post 9/11, superseded all sense of justice.” The review reads, “There’s still a need for films such as The Mauritanian. We cannot allow the horrors to fade.” By contrast, The Guardian’s Peter Bradshaw gave the film two stars, describing it as a “self-congratulatory” piece “comprised entirely of good guys.” With The Mauritanian, Bradshaw writes, viewers “are plunged right back into the exasperating 9/11 fence-sitting handwringer genre that was fashionable in the 00s: conscience-stricken films that invited us to sympathise with their liberal agony.” To the first reviewer, the film rightly sparks moral outrage about Guantanamo Bay. To the second, it is amoral, celebrating the liberal heroes of Slahi’s story without condemning those most responsible for his suffering. These conflicting reviews, as I show below, reveal the breadth of international legal narratives that viewers might find in The Mauritanian.

The Mauritanian and International Law

The Mauritanian reveals many ways of thinking about international law. Each warrants further elaboration and analysis, but in the interest of brevity, this section focuses on just two.

i. Guantanamo Bay as a Place Beyond the Law

The Mauritanian represents Guantanamo Bay as a place that was deliberately placed beyond the law’s reach by US Government officials, thus mirroring much of the international law scholarship on the topic. Steyn characterises the base, which the US perennially leases from Cuba, as a legal “black hole.” The US Government advanced two key legal arguments to justify the indefinite detention and interrogation of terrorist suspects at Guantanamo Bay. It argued, firstly, that neither the US Constitution nor international human rights law apply to aliens situated outside US territory – even those detained on American military bases. Secondly, the US government argued that all members of Al-Qaeda were “unlawful enemy combatants” and could not, therefore, be considered prisoners of war for the purposes of the Third Geneva Convention. This was, as Borelli observes, because Al-Qaeda is not a High Contracting Party to the Geneva Conventions. These arguments subverted common understandings of international law, of course; UN treaty bodies and the European Court of Human Rights have held that states’ human rights obligations apply extraterritorially, and it is widely accepted that non-state armed groups are bound by the customary laws of armed conflict. Yet as Johns has noted, these arguments showed the US Government’s willingness to put the law and legal institutions to work in justifying its practices at Guantanamo Bay.

The Mauritanian makes accessible to the masses the vision of Guantanamo Bay as a place situated beyond the law’s reach. This view is made explicit early in the film. An aerial shot of azure blue seas and sandy beaches on the Cuban coast cuts to a closeup of Hollander onboard a bus from the airbase to the detention facilities. The passengers are briefed by a military commander. “This base exists outside of US legal jurisdiction,” he says. “If you stray outside the designated areas, you will be removed from the island.” Throughout the film, viewers witness the deployment of carefully constructed – but tenuous – legal arguments to deny detainees’ rights. In one scene, Couch and his military colleagues discuss the legal justification for the incommunicado detention of terrorist suspects and their trial at the new Guantanamo Military Commissions. The only justification they can summon is Ex Parte Quirin. Quirin isa WWII decision that predates the United States’ ratification of the Geneva Conventions, in which the Supreme Court approved the use of a special regime of detention and trial for Nazi German saboteurs as “unlawful enemy combatants.” The decision is outdated and inconsistent with the United States’ current international obligations. But for Couch and colleagues, it is the perfect precedent. “[Here’s] the punchline”, one of Couch’s colleagues says. “Six got the electric chair. Rough justice – that’s what this Administration wants.”

ii. Torture

The US Government also deployed lawyers and legal arguments to justify the use of torture in the interrogation of Guantanamo detainees. In 2002, senior legal advisers to the US Government wrote and signed the “torture memos.” These memos expressed the opinion that only extreme pain and suffering resulting in a near-death experience can be classified as torture. This led Donald Rumsfeld, then the Secretary of Defense, to approve the use of several “enhanced interrogation” techniques at Guantanamo Bay, most infamously waterboarding. The US Government steadfastly maintained that the “enhanced interrogation” of prisoners at Guantanamo Bay did not amount to torture until 2014, when President Obama famously admitted, “We tortured some folks.”

The Mauritanian hints at the dubiousness of the US Government’s legal position on torture. Late in the film, an interrogator admits to Couch, “The week that Slahi was handed over to Military Intelligence, we received signoff from Donald Rumsfeld authorising the use of special measures.” When asked if he “just went along with it”, the interrogator replies, “Yes, I did. We were trying to prevent a second 9/11.” This moment taps into the ticking time-bomb scenario made famous by 24’s Jack Bauer, raising, yet again, the question of whether torture is morally and legally justified when a terrorist attack may be imminent. But The Mauritanian is antithetical to 24 in this regard. As De Wijze has noted, 24 fetishizes torture through Bauer, a stoic, alpha-male antihero, willing to get his hands dirty to save American lives. In The Mauritanian, torture is presented as a clear violation of human dignity. An eight-minute scene shows Slahi being beaten, held in stress positions, deprived of sleep, sexually assaulted, and tormented with threats of violence against his family. At one point, Slahi is seen among a sea of blindfolded and shackled men, all dressed in those infamous orange jumpsuits. The film is unequivocal in its characterisation of torture as part of a programme of punitive detention and dehumanisation of terrorist suspects. In this sense, The Mauritanian demonstrates film’s ability to expose gross human rights violations. Guantanamo, which was slowly fading from public consciousness, appears on the map once more. Films, as Prost observes, “Depict certain practices to spark outrage and raise, rather than lower, our collective state of consciousness.” They “play a powerful role in mainstreaming human rights violations with a degree of efficacy that historians or victims’ accounts fail to achieve.”

(International) Law’s Silence

Yet if violations of international law are everywhere in The Mauritanian, international law itself is nowhere. Though a legal drama, the film is silent regarding international law. It does not explore – directly or indirectly – the way that human rights law and the laws of armed conflict were read away from detention and interrogation at Guantanamo. And while we are made aware that the Mauritanian government was complicit in Slahi’s initial capture, there is no exploration of the implications of such complicity for the customary prohibition of torture.

Ultimately, The Mauritanian associates justice with liberal America and its virtues of Christianity and constitutionalism. The film’s central message is, perhaps, that “America is better than this.” Hollander, a fearless defence lawyer from New Mexico, boldly asks, “Since when did we start locking people up without a trial in this country?” And she ultimately invokes the writs of habeas corpus and the protections of the US Constitution to free her client. Couch is, meanwhile, a churchgoing family man with a straight-back-and-sides haircut. He does not decide to resign from Slahi’s prosecution because his detention and torture are unlawful, but because they are contrary to the values of Christianity. Couch appears troubled during a church service as the priest asks, “Will you do everything in your power to seek justice on Earth and treat every human being with inherent dignity?” This is Couch’s moment of realisation. There is an extreme close-up on his face as he whispers, “Amen.”

Scholars must be careful not to ask too much of popular culture. One cannot expect a Hollywood film to explore every international legal aspect of the events it depicts. But we should ask questions about international law’s absence from films where it is clearly relevant. A postmodern approach to international law and film allows us to approach silence itself as one of the many things that viewers might take from a film. Perhaps, The Mauritanian silently conditions its audience to invest in an exceptionalist American narrative of the war on terror, thereby dismissing the relevance or transformative potential of international law. Or perhaps it is a relativist narrative depicting a multitude of individual journeys to justice and forgiveness: Hollander through (domestic) legalism; Couch through Christianity; Slahi through the laws and teachings of Islam. Or, perhaps, the film does what the international law of human rights simply cannot do: it humanises victims of violence, making them likeable, loving, and funny; and giving them stories.