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Guantanamo and the End of Hostilities

37 Southern Illinois University Law Journal 491 (2013)

22 Pages Posted: 14 Mar 2013 Last revised: 9 Jun 2015

Eric Talbot Jensen

Brigham Young University School of Law

Date Written: March 13, 2013

Abstract

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 [2014] 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.

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, K41

Suggested Citation

Jensen, Eric Talbot, Guantanamo and the End of Hostilities (March 13, 2013). 37 Southern Illinois University Law Journal 491 (2013). Available at SSRN: https://ssrn.com/abstract=2233082

Eric Talbot Jensen (Contact Author)

Brigham Young University School of Law ( email )

504 JRCB
Provo, UT 84602
United States

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