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Terrorism & the Law of War (Paperback)
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Terrorism & the Law of War (Paperback)
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On November 13, 2001, President Bush signed a Military Order
pertaining to the detention, treatment, and trial of certain
non-citizens as part of the war against terrorism. The order makes
clear that the President views the crisis that began on the morning
of September 11 as an attack "on a scale that has created a state
of armed conflict that requires the use of the United States Armed
Forces." The order finds that the effective conduct of military
operations and prevention of military attacks make it necessary to
detain certain non-citizens and if necessary, to try them "for
violations of the laws of war and other applicable laws by military
tribunals." The unprecedented nature of the September attacks and
the magnitude of damage and loss of life they caused have led a
number of officials and commentators to assert that the acts are
not just criminal acts, they are "acts of war." The President's
Military Order makes it apparent that he plans to treat the attacks
as acts of war rather than criminal acts. The distinction may have
more than rhetorical significance. Treating the attacks as
violations of the international law of war could allow the United
States to prosecute those responsible as war criminals, trying them
by special military commission rather than in federal court. The
purpose of this book is to identify some of the legal and practical
implications of treating the terrorist acts as war crimes and of
applying the law of war rather than criminal statutes to prosecute
the alleged perpetrators. The book will first present an outline of
the sources and principles of the law of war, including a
discussion of whether and how it might apply to the current
terrorist crisis. A brief explanation of the background issues and
arguments surrounding the use of military commissions will follow.
The book will then explore the legal bases and implications of
applying the law of war under United States law, summarise
precedent for its application by military commissions, and provide
an analysis of the President's Military Order of November 13, 2001.
Finally, the book discusses considerations for establishing rules
of procedure and evidence that comport with international
standards.
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