Executive branch policy meets international law in the evolution of the domestic law of detention
Thomas B. Nachbar
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Virginia journal of international law, Vol. 53, no. 2, 2013, p. 201-246
This paper considers the role that the executive branch can play in modifying international law through a specific case: the March, 2011 issuance of Executive Order 13567: Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force. As its title suggests, the Order establishes a system of periodic review for detainees held at Guantanamo Bay, but the release of the Order suggests much more than merely the adoption of new procedures for reviewing detention determinations. In a "Fact Sheet" issued with the Order, the Obama administration suggested some concrete changes to how the United States views the international law of detention, specifically with regard to Additional Protocols I and II of the Geneva Conventions. Those changes, when combined with the content of the Order itself, may signal an even more profound shift in the role of international law in the shaping of the domestic law of detention and in the role of the executive branch in shaping both international and domestic law. The paper proceeds by describing the Order in detail and comparing the procedures adopted in the Order with those that preceded it, namely Combatant Status Review Tribunals and detainee Administrative Review Boards. The paper next analyzes the Order's procedures under Article 75 of Additional Protocol I and Articles 4-6 of Additional Protocol II, as suggested by the Fact Sheet. Finally, the paper considers the broader questions raised by the Order and Fact Sheet's stated approach to the international law of detention. By recognizing an increased role for Additional Protocols I and II, the Order and Fact Sheet go some distance toward providing an avenue for incorporating international human rights norms into the U.S. domestic law of detention, an approach that sharply diverges with previous U.S. positions on the law of armed conflict, and does so through the executive branch operating alone.
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