dangerous.699 The rules governing military commissions do not contain this requirement, but the rules applicable to courts-martial contain a requirement whereby confessions may not be admitted if they are compelled or made without a warning that is substantially similar to a Miranda warning.700 As noted by some experts, courts-martial have dealt with situations arising on the battlefield for years and apply “largely the same evidentiary rules as civilian criminal trials”.701 ODIHR notes that there are exceptions to the Miranda rule and other evidence rules in the federal justice system, such as where there are “overriding considerations of public safety”.702 On this point, US officials claim that the public safety exception, which has parallels on the battlefield, would not be sufficient relief.703 This argument however does not suffice to justify the use of military commissions in their current iteration. As discussed in the introduction of this report, ODIHR disagrees with the notion of a war without geographical boundaries, effectively creating a worldwide battlefield.704 Instead, any relevant battlefield would be limited to armed conflicts that are within the meaning of international humanitarian law and would not be relevant to detainees that were unconnected to any armed conflict.705 The fourth rationale presented to justify the use of military courts is therefore entirely inapplicable for these civilians. 310. Based on all these factors, it does not appear that the US government’s rationale for trying civilians by military commissions, as explained by President Obama in May 2009, is exceptional, nor is it “necessary and justified by objective and serious reasons”. 311. International humanitarian law is only applicable in times of armed conflict. Hence, violations of the laws of war can only occur during armed conflicts.706 Some detainees, such as Al-Nashiri, have nevertheless been charged with violations of the laws of war for conduct that likely occurred outside of any armed conflict. Two problems arise in this 699 US comments to the draft report. UCMJ, Art. 31; Military Rules of Evidence, 2012, Rule 305, <http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf>. 701 Cole, “Military Commissions and the Paradigm of Prevention”, op. cit., note 258, p. 104. 702 The courts could also create new exceptions to the Miranda warning requirement depending on the circumstances. The United States Supreme Court has said that “[p]rocedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost (…). [T]he need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination. We decline to place officers (…) in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them”. Accordingly, other exceptions to rules affecting the admissibility of evidence are also available, such as where evidence is obtained from unreasonable searches and seizures, when US officials’ actions are conducted outside the United States. These exceptions generate further questions on the need for military commissions based on presentation of evidence obtained on the battlefield. United States Supreme Court, New York v. Benjamin Quarles, Case No. 821213, 12 June 1984, <http://scholar.google.pl/scholar_case?case=13717772316457971707&hl=en&as_sdt=6&as_vis=1&oi=scholarr&sa=X&ei=esPc VOT7LIT9UKHbgLgE&ved=0CCkQgAMoADAA>; United States Supreme Court, United States v. Verdugo-Urquidez, Case No. 88-1353, 28 February 1990, <https://supreme.justia.com/cases/federal/us/494/259/case.html>. 703 US comments to the draft report. 704 See the introduction and Part 1-A of this report for additional information. 705 Ibid. 706 “Customary International Humanitarian Law, Rule 156: Definition of War Crimes”, ICRC website, <https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule156#Fn_21_1>; “Customary International Humanitarian Law, Rule 3”, ICRC website, op. cit., note 44. See also, United States Supreme Court, Hamdan v. Rumsfeld, op. cit., note 11; MCA 2009, § 950p(c). 700 135