Guantanamo and the End of Hostilities
Eric Talbot Jensen
Brigham Young University School of Law
March 13, 2013
Southern Illinois University Law Journal, Forthcoming
Detainees in the War on Terror have been at Guantanamo Bay for over a decade. The justification for these detentions has been, at least in part, the on-going hostilities in Afghanistan. However, President Obama’s announcement in his 2013 State of the Union address that “By the end of  our war in Afghanistan will be over” may undercut the continuing detention authority for at least some of these Guantanamo detainees. This paper analyzes the legal doctrine of release and repatriation in light of President Obama’s announcement and concludes that the President’s determination that hostilities have concluded between specific Parties to an armed conflict and the corresponding withdrawal of troops from the area of conflict creates a presumption that detainees from that conflict should be repatriated. This presumption may be overcome on an individual basis by a finding that released and repatriated fighters will return to the battle.
Number of Pages in PDF File: 24
Keywords: law of war, detainee, detention, Guantanamo Bay, GITMO, law of armed conflict, international humanitarian law, international law, armed conflict, terrorism, terrorist
JEL Classification: K10, K14, K33, K41Accepted Paper Series
Date posted: March 14, 2013
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