Captivity and the Law: Hostages, Detainees, and Criminal Defendants in the Fight Against Terrorism

Abstract

Appearing in the annual "International Practitioner's Notebook" edition of the ILSA Journal of International and Comparative Law, this article briefly addresses three issues related to modern counterterrorism operations. First, it examines whether there are limits on the force that can be used in an operation to rescue hostages held by a terrorist organization. Second, it looks at how the detention policies and practices of the United States, specifically with respect to those detained at Guantanamo Bay, compare to the evolving approach of the international community. Finally, it describes military commissions as a mode of prosecuting alleged war criminals, and how United States and international law relate to one another in this context under present law, mindful that litigation in this area is ongoing.

Keywords: Terrorism, counterterrorism, kidnapping, hostages, rescue, detention, detainee, Guantanamo, GTMO, military commissions, international law, Al Qaeda, ISIS, ISIL, war crimes