It cited a 2004 US Supreme Court case — Hamdi vs Rumsfeld — as establishing that “the law of armed conflict permits the United States to detain belligerents until the end of hostilities without charging such individuals with crimes, because they are not being held as criminals facing future criminal trial.”
The US military is fighting irregular forces — al-Qaeda, the Taliban and an array of similar shadowy insurgent or terrorist groups. So it is not clear when “hostilities” would ever formally end, since there is no declaration of war and no enemy government to defeat. Only the US can decide when it deems a conflict to be over, in those circumstances.
Foster said that the teens seized are not in uniform or even typically taken in combat.
“We’re not talking about battlefield captures, we’re talking about people who are living at home, and four or five brothers might be taken together. It might take them a year or more to figure out that one of them was younger than 18, to determine the identities of these kids,” she said.
In January, the US State Department will send a delegation to Geneva to present the report to the UN’s Committee on the Rights of the Child, and to answer any further questions the UN committee members may have.
The report is available online at: www2.ohchr.org/english/bodies/crc/docs/CRC.C.OPAC.USA.Q.2.Add.1.doc.