Applying combatant status under the international law of armed conflict to the domestic militia system of the United States
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Military law review, Vol. 225, issue 2, 2017, p. 486-511
Travis R. Stevens-White
This article will analyze and apply substantive international law of armed conflict (LOAC) to the primary domestic legal mechanisms for national defense regarding militia forces of the United States and its states and identify likely conflicts that may arise at the intersection of our domestic system and the overarching international LOAC. A key aspect of this analysis is the ability of the general population, acting either as individuals or as some ad hoc militia (under domestic law) independent of governmental oversight, to qualify for privileged combatant status under LOAC. Furthermore, the potential for domestic mechanisms to assimilate the general population, likely operating under the limited temporal authority of a levée en masse, into a legitimate military force with continued long-term standing under LOAC is both strategically promising and academically fascinating.