35 consistent with the law of war See Hamdi v Rumsfeld 542 US 507 520 2004

35 consistent with the law of war see hamdi v

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consistent with the law of war. See Hamdi v. Rumsfeld , 542 U.S. 507, 520 (2004) (plurality). The law of war, in turn, recognizes that juveniles lack the capacity and judgment to become valid, consenting “members” or “affiliates” of armed forces. Second, as discussed above, the Child Soldier Protocol similarly prohibits juveniles under the age of 18 from being recruited or used by non-state armed forces under “any circumstances,” and further provides that if they are so used, they must be treated as victims of inappropriate recruitment, demobilized, and offered rehabilitation services and assistance re-integrating into society. See Child Soldier Protocol arts. 4, 6, 7. The Child Soldier Protocol thus confirms that Petitioner could not have been a valid “member” or “affiliate[]” of al-Qaeda. The AUMF, passed a week after the September 11 attacks, authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” AUMF § 2. As the Supreme Court recognized in Hamdi , the phrase “necessary and appropriate force”—the source of authority for detaining persons at Guantánamo Bay—must be understood in light of, and is limited by, the law of war. See 542 U.S. at 517-31. Hamdi involved the question whether the AUMF authorized detention of an individual classified as an “enemy combatant” because he was “part of or supporting forces hostile to the United States” in Afghanistan and “engaged in an armed conflict against the United States” there. Id . at 516 (internal quotation marks omitted). To determine whether detention of such a person constituted a “necessary and appropriate” use of force under the AUMF, the Court looked to the law of war. It concluded that such detention was “so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” Id. at 518. And in clarifying the duration of permissible detention, the Court 36
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again looked to the law of war—in particular, to a number of treaties and international agreements—concluding that “[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities,” and therefore that “Congress’ grant of authority for the use of ‘necessary and appropriate force’” includes only “the authority to detain for the duration of the relevant conflict.” Id . at 520-21. 21 Under Hamdi , then, it is clear that the Government’s detention authority under the AUMF extends only to the limits of the law of war. And it is equally clear that under the law of war, juveniles cannot become “members” or “affiliate[s]” of armed forces. Initially, as discussed above, numerous military and civil courts have recognized that joining an armed force is akin to entering a contract that changes one’s legal status from “civilian” to “soldier,” and that juveniles below the age of consent simply do not have the capacity to change their status in this way.
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  • Summer '16
  • Ramon Wawire
  • Supreme Court of the United States, Habeas corpus, Hamdan v. Rumsfeld, Boumediene v. Bush, military commission

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