Enemy Combatants and Access to Habeas Corpus: Questioning the Validity of the Prisoner of War Analogy
Santa Clara Journal of International Law, Vol. 5, p. 2, 2007
32 Pages Posted: 21 Aug 2007
One of the most commonly asserted justifications for denying habeas review to individuals detained by the armed forces during the Global War on Terror has been that such review is both illogical and inconsistent with the tradition of warfare because prisoners of war (POWs) have never been provided analogous access to judicial review. This view reflects a flawed assumption that the necessity for habeas access is equal for both POWs and other individuals detained as a result of their participation in armed conflict - individuals excluded from the benefits of the Geneva Convention Relative to the Treatment of Prisoners of War. Accordingly, it is not only unjustified, but distorts the underlying questions at issue in the habeas debate.
This article challenges the validity of this analogy by explaining this internal compliance mechanism of the Prisoner of War Convention, and exposing how designation as an "enemy combatant" deprives captured personnel of any legal remedy for arbitrary decisions by the detaining power, mainly the United States.
Keywords: Enemy Combatant, Habeas Corpus, Detention, Prisoner of War, Geneva Convention, the Law of War
JEL Classification: K33, K19
Suggested Citation: Suggested Citation