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The War on Terror and the Laws of WarA Military Perspective$
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Geoffrey S. Corn, James A. Schoettler, Jr., Dru Brenner-Beck, Victor M. Hansen, Dick Jackson, Eric Talbot Jensen, and Michael W. Lewis

Print publication date: 2015

Print ISBN-13: 9780199941452

Published to Oxford Scholarship Online: December 2014

DOI: 10.1093/acprof:oso/9780199941452.001.0001

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Trial and Punishment for Battlefield Misconduct

Trial and Punishment for Battlefield Misconduct

(p.193) 6 Trial and Punishment for Battlefield Misconduct
The War on Terror and the Laws of War

Dru Brenner-Beck

Oxford University Press

This chapter discusses trial and punishment for battlefield misconduct in the context of the United States “war on terror” since 2001, examining the basis for the use of military commissions to try violations of the law of war, as well as recent commission trials. It traces the development of the U.S. military commissions at Guantanamo, and the two Military Commissions Acts ultimately enacted to authorize them in the aftermath of the Supreme Court’s Hamdan v. Rumsfeld decision. Although there is nothing controversial in the use of military courts to compel compliance with the laws and customs of war, their use to try operatives captured in the course of the armed struggle against transnational terrorism is subject to considerable controversy. This chapter examines why such use can and should be considered legitimate, but also how this legitimacy is contingent on respecting substantive and procedural limitations that are inherent in the LOAC.

Keywords:   war crimes, military commissions, prosecution, Guantanamo, Hamdan v. Rumsfeld, international criminal tribunals, jurisdiction

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