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 report 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 report 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. Abrief explanation of the background issues and arguments surrounding the use of military commissions will follow. The report will then explore the legal bases and implications of applying the law of war under United States law, summarize precedent for its application by military commissions, and provide an analysis of the President's Military Order of November 13, 2001. Finally, the report discusses considerations for establishing rules of procedure and evidence that comport with international standards.

After earlier criticism from human rights organisations and many foreign governments regarding the determination that the Geneva Conventions of 1949 do not apply to the detainees held in Cuba, President Bush shifted position with an announcement that Taliban fighters are covered by the 1949 Geneva Conventions, while al Qaeda fighters are not. Taliban fighters are not to be treated as prisoners of war (POW), however, because they reportedly fail to meet international standards as lawful combatants The decision is not likely to affect the treatment of any of the detainees held at the US. The Geneva Conventions of 1949 create a comprehensive legal regime for the treatment of detainees in an armed conflict. These 'unprivileged' or 'unlawful combatants' may be punished for acts of violence for which legitimate combatants could not be punished. Some have argued that there is implied in the Geneva Conventions a third category comprised of combatants from militias who do not qualify for POW status but also fall outside of the protection for civilians. These combatants may be lawful in the sense that they do not incur criminal liability for engaging in otherwise lawful combat, but they would not be entitled to privileges as POWs or protected civilians. The status of the detainees may affect their treatment in several ways. This book explores the dilemma that the US government faces as far as the classification of its prisoners that they deem to not fall under the POW status and the treatment and rights that they are entitled to.

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. On 13 November 2001, President George W. Bush issued a military order to provide for the detention, treatment, and trial of those who assisted the terrorist attacks on the two World Trade Center buildings in New York City and the Pentagon on September 11. In creating a military commission (tribunal) to try the terrorists, President Bush modelled his tribunal in large part on a proclamation and military order issued by President Franklin D. Roosevelt in 1942, after the capture of eight German saboteurs. This book also describes the procedures used by the World War II military tribunal to try the eight Germans, the habeas corpus petition to the Supreme Court, and the resulting convictions and executions.

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.

The International Criminal Court (ICC) is the first global permanent international court with jurisdiction to prosecute individuals for 'the most serious crimes of concern to the international community'. The United Nations, many human rights organisations, and most democratic nations have expressed support for the new court. The Bush Administration firmly opposes it and has formally renounced the US obligations under the treaty. At the same time, however, the Administration has stressed that the United States shares the goals of the ICC's supporters-promotion of the rule of law- and does not intend to take any action to undermine the ICC. The primary objection given by the US in opposition to the treaty is the ICC's possible assertion of the jurisdiction over US soldiers charged with 'war crimes' resulting from legitimate uses of force. The main issue faced by the current Congress is whether to adopt a policy aimed at preventing the ICC from becoming effective or whether to continue contributing to the development of the ICC in order to improve it. This book provides a historical background of the negotiations for the Rome Statute, outlines the structure of the International Criminal Court (ICC) as contained in the final Statute, and describes the jurisdiction of the ICC. The book further identifies the specific crimes enumerated in the Rome Statute as supplemented by the draft elements of crime. A discussion of procedural safeguards follows, including reference to the draft procedural rules. The book then goes on to discuss the implications for the United States as a non-ratifying country when the ICC comes into being, and outlines some legislation enacted and proposed to regulate US relations with the ICC.