'Unlawful Enemy Combatant:' Status, Theory of Culpability, or Neither?
7 Pages Posted: 6 May 2009
Date Written: December 15, 2006
The Military Commissions Act of 2006 represents the United States’ most recent effort to establish a forum to try detainees captured in its ‘Global War on Terrorism’. This article briefly explores the Act’s use of the term ‘unlawful enemy combatant’ to define both subject matter jurisdiction as well as the potential source of criminal liability. The article highlights the term’s absence from the positive law of war as well as confusion over its legal significance in United States domestic law. Examining the relationship between status and protections under the law of war, the authors conclude the Act’s use of the term ‘unlawful enemy combatant’ reflects legal convenience more than an objective assessment of the existing laws and customs of war.
Keywords: Law of War, International Humanitarian Law, Law of Armed Conflict, International Criminal Law, Unlawful Enemy Combatant, Unlawful Combatant, Unprivileged Belligerent
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