....As I read it, I found myself having several reactions which made me want to examine some of the presuppositions behind the entire military tribunal system and, especially, as it applies to those being held in Guantanamo Bay. ...
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My first question, then, would be “when does a non-state actor become a state”? Or, to phrase it subtly differently, when does world opinion hold that the use of violence by a specific, identifiable group, shift to the point that the rules applied to its use of violence are those of “international relations” (e.g. “lawful combatants”) rather than those of a single, sovereign, legal system (e.g. “unlawful combatants”)? ...
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.... my second question: why should any group accept the state-based conceptualization of international relations?
This question is especially important when one considers that the post-Westphalian concept of a “society of states” is based on a radically different religious, historical and cultural view of “reality” from that of much of the world today. And, possibly more importantly, when the force a transnational non-state actor can now apply is much greater than at any other time in our species history thanks to the growth of global integration in economics and communications and the increased development of diaspora communities? ...
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My question is this: what possible interpretation of international law allows the military of one sovereign nation to detain the citizens of another sovereign nation and charge them under a national, as opposed to an international, legal system?
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