Article également publié dans: Israel Yearbook on Human Rights, vol. 42, 2012
The United States used to not think about what law applied in NIAC, particularly with regard to those detained during the conflict. In fact, the United States' last experience with long-term detention was of prisoners of war captured during World War II. The law then was clear—enemy prisoners of war could be held until the end of the conflict. But twenty-first-century conflicts have changed. Now the war is not with another State, but with a non-State actor, al Qaeda. In the early period of this new type of war, the United States was accused of holding detainees indefinitely without providing a means of review to determine whether there was sufficient basis for the detention. Today, newly captured individuals are submitted to a Detainee Review Board. The Board, comprised of three field-grade military officers, reviews each individual's detention for both legality and necessity of continued detention. The detainee receives expert assistance from a U.S. officer who is authorized access to all reasonably available information pertaining to that detainee. This review is repeated periodically after the initial hearing, which must take place within sixty days of arrival at the internment facility. Now some argue that the pendulum has swung too far, and that the United States is releasing detainees (some of whom have returned to the fight) too quickly. What is unarguable is that an indefinite detention without some form of process in these new wars will not be stomached.
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