Academic journal article Vanderbilt Law Review

Combatant Status Review Tribunals and the Unique Nature of the War on Terror

Academic journal article Vanderbilt Law Review

Combatant Status Review Tribunals and the Unique Nature of the War on Terror

Article excerpt


On September 11, 2001, terrorists1 attacked the United States, killing 2,973 innocent civilians. This was the largest loss of life on U.S. soil due to a hostile act in the nation's history.2 Al Qaeda, an international terrorist organization, claimed responsibility for the act.3 Al Qaeda had been systematically targeting U.S. civilians and service members for at least the previous nine years.4 In response to the attacks, the United States conducted a series of military and legal actions that were highly controversial and unprecedented. As part of these actions, the executive branch claimed the authority to detain indefinitely individuals it labeled as "enemy combatants."5

This Note examines the procedures currently used by the United States to determine whether an individual qualifies as an enemy combatant. It then assesses the legitimacy of this process in light of the law of armed conflict, the history of military tribunals, the special characteristics of the war on terror, and practical necessity. This Note concludes that the current procedures, although technically legal, must be refined by Congress in order to address the many shortcomings therein.


The law of armed conflict is designed to "offer a proven, durable mode of imposing principled constraints on organized violence."6 The law of war today can be generally described as falling into two categories:7 Hague Law,8 which addresses the methods of conducting warfare, and Geneva Law,9 which deals with the protection of the victims of war. The recent international debate concerning U.S. enemy combatant detainees has almost exclusively focused on Geneva Law.10 The starting point, however, for any legal discussion of the rights of an enemy in the field is the well-established rule that combatants are legally entitled to kill adversary combatants.11 This default rule forms the baseline from which we can measure the due process rights of captured adversaries.12 Likewise, the law of armed conflict gives opposing parties the authority to detain adversaries.13

A. Is the War on Terror an "Armed Conflict?"

There has been extensive debate as to whether any of the laws of war under the Geneva Conventions apply to the "war on terror" led by the United States. Specifically, does the current conflict rise to the level of armed conflict described in the Conventions? Although originally designed for de jure declared wars between nations, the laws of war also cover de facto armed conflicts.14 Pursuant to the Geneva and Hague Conventions, the September 11 attacks did not initiate an "international armed conflict" because al Qaeda did not act on behalf of a foreign state.15 Common Article III of all Geneva Conventions, however, also "explicitly regulate[s] internal armed conflicts-that is, conflicts between states and non-state armed groups."16 The difficult question, therefore, is determining the point at which an internal disturbance crosses the threshold and becomes an "armed conflict" under international law.17

The drafters of the Geneva Conventions sought to define internal armed conflicts broadly by applying a limited set of substantive principles.18 Common Article III provides:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. …

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