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

Cambridge Journal of International and Comparative Law (2) 4: 800-824 (2013)

25 Pages Posted: 9 Mar 2014

Date Written: 2013

Abstract

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 “U.S. common law of war,” a form of customary domestic liability in armed conflict distinct from international law. This paper offers a critique of the U.S. theory from the perspective of international criminal law practice and theory. In particular, it explains how the U.S. 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.

Keywords: National Security, International Law, Criminal Law, Legal Tradition

Suggested Citation

Hafetz, Jonathan, Diminishing the Value of War Crimes Prosecution: A View of the Guantanamo Military Commissions from the Perspective of International Criminal Law (2013). Cambridge Journal of International and Comparative Law (2) 4: 800-824 (2013), Available at SSRN: https://ssrn.com/abstract=2405704

Jonathan Hafetz (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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