The Misuse of History: Conspiracy and the Guantánamo Military Commissions

Glazier, David W.

doi:10.2139/ssrn.2274502

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Evading Legality and Due Process1

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2013

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“…The government relies mainly on selective historical examples dating from the Civil War. 84 Those examples, however, involved military commissions that exercised hybrid jurisdiction over domestic criminal offences based on martial law and over war crimes, 85 or that involved charges alleging participation in a completed war crime. 86 The Civil War tribunals, moreover, predated the development of the modern law of war.…”

Section: Evading Legality and Due Processmentioning

confidence: 99%

Diminishing the Value of War Crimes Prosecutions: a View of the Guantanamo Military Commissions from the Perspective of International Criminal Law

Hafetz¹

2013

Cambridge Journal of International and Comparative Law

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One of the most important questions in the current Guantanamo detainee litigation is whether the United States may prosecute individuals in military commissions for offenses that are not recognized as war crimes under international law. The United States maintains that such offenses-particularly, material support for terrorism and conspiracy-are violations of the`US common law of war' , a form of customary domestic liability in armed conflict distinct from international law. This paper offers a critique of the US theory from the perspective of international criminal law practice and theory. In particular, it explains how the US position unduly expands the conception of war crimes liability, thereby distorting the meaning of a war crime and undermining the value of prosecuting conduct on that basis.

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Section: Evading Legality and Due Processmentioning

confidence: 99%

Diminishing the Value of War Crimes Prosecutions: a View of the Guantanamo Military Commissions from the Perspective of International Criminal Law

Hafetz¹

2013

Cambridge Journal of International and Comparative Law

View full text Add to dashboard Cite

show abstract

The Misuse of History: Conspiracy and the Guantánamo Military Commissions

Cited by 1 publication

References 14 publications

Diminishing the Value of War Crimes Prosecutions: a View of the Guantanamo Military Commissions from the Perspective of International Criminal Law

Diminishing the Value of War Crimes Prosecutions: a View of the Guantanamo Military Commissions from the Perspective of International Criminal Law

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