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Your question is based on an incorrect premise Heads of State can be and have been held accountable for war crimes and crimes against humanity. For example: Germany Japan Yugoslavia Rwanda


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I'm not a lawyer, but Boumediene v. Bush seems applicable, here: https://scholar.google.com/scholar_case?case=913322981351483444&q=bush+v.+boumediene&hl=en&as_sdt=2006&as_vis=1 I believe it succeeds and refines Hamdi v Rumsfeld, and disallows indefinite detention of enemy combatants.


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