A bull in a China shop : the war on terror and international law in the United States
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California Western international law journal, Vol. 39, issue 1, Fall 2008, p.135-159
It is obvious that the effort to combat terrorism would be well served by the United States’ return to mainstream concepts of applicable international law. The author proposes three things that the United States can do to that end: • For people detained outside of armed conflict: Stop using the term “combatant” and stop asserting application of IHL. Reform legal procedures so that the power to detain, the right to challenge detention, and trial procedures comport with the requirements of international human rights law, including the right to habeas corpus. • For people detained in international armed conflict: Reform legal procedures so that entitlement to POW status and civilian status might be determined in appropriate cases and so that trial procedures are consistent with applicable requirements of IHL. Restrict the use of the term “combatant” to persons entitled to POW status. • For people detained in non-international armed conflict: Reform legal procedures so that the power to detain, the right to challenge detention, and trial procedures comport with the requirements of applicable IHL and international human rights law, including the right to habeas corpus. Stop using the term “combatant” to describe persons in this category.
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