United States of America
Practice Relating to Rule 106. Conditions for Prisoner-of-War Status
The US Air Force Pamphlet (1976) states that combatants are only entitled to prisoner-of-war status if, inter alia
, they have a fixed distinctive sign and carry arms openly.
The Pamphlet explains that the requirement of having a fixed distinctive sign
may be satisfied by wearing a uniform [and] insures that combatants are clearly distinguishable from civilians to enhance protection of civilians. Less than a complete uniform will suffice provided it serves to distinguish clearly combatants from civilians.
With respect to the requirement to carry arms openly, the Pamphlet states: “Irregular forces do not satisfy this requirement by carrying arms concealed about the person or if the individuals hide their weapons on the approach of the enemy.”
The US Naval Handbook (1995) states: “Combatants … carry their arms openly, and otherwise distinguish themselves clearly from the civilian population.”
The US Naval Handbook (2007) states: “Commanders … must distinguish their forces from the civilian population. This is why combatants wear uniforms or other distinctive signs.”
At the CDDH, the United States voted in favour of Article 42 of the draft Additional Protocol I (now Article 44) and stated:
The basic rule contained in the first sentence of paragraph 3 meant that throughout their military operations combatants must distinguish themselves in a clearly recognized manner. Representatives who had stated or implied that the only rule on the subject was that set forth in the second sentence of paragraph 3 were wrong.
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support … the principle that combatant personnel distinguish themselves from the civilian populations while engaged in military operations.”
In 1987, the Legal Adviser of the US Department of State stated:
A fundamental premise of the Geneva Conventions has been that to earn the right to protection as military fighters, soldiers must distinguish themselves from civilians by wearing uniforms and carrying their weapons openly … Fighters who attempt to take advantage of civilians by hiding among them in civilian dress, with their weapons out of view, lose their claim to be treated as soldiers. The law thus attempts to encourage fighters to avoid placing civilians in unconscionable jeopardy.
In January 2002, in response to a request from the Counsel to the President and the General Counsel of the Department of Defense, the US Office of Legal Counsel, Department of Justice, provided its views regarding the application of treaties and laws to al-Qaeda and Taliban detainees. On the law regarding the prisoner-of-war (POW) status of these detainees, the memorandum stated:
Application of WCA [War Crimes Act] and Associated Treaties to al Qaeda.
We conclude that Geneva [Convention] III does not apply to the al Qaeda terrorist organization. Therefore, neither the detention nor trial of al Qaeda fighters is subject to Geneva III (or the WCA). Three reasons, examined in detail below, support this conclusion. First, al Qaeda is not a State and thus cannot receive the benefits of a State party to the Conventions. Second, al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva Convention III. Third, the nature of the conflict precludes application of common article 3 of the Geneva Conventions.
Geneva III does not apply to a non-State actor such as the al Qaeda terrorist organization. Al Qaeda is not a State. It is a non-governmental terrorist organization composed of members from many nations, with ongoing operations in dozens of nations. Non- governmental organizations cannot be parties to any of the international agreements here governing the laws of war. Common article 2, which triggers the Geneva Convention provisions regulating detention conditions and procedures for trial of POWs, is limited to cases of declared war or armed conflict “between two or more of the High Contracting Parties.” Al Qaeda is not a High Contracting Party. As a result, the U.S. military’s treatment of al Qaeda members is not governed by the bulk of the Geneva Conventions, specifically those provisions concerning POWs. Conduct towards captured members of al Qaeda, therefore, also cannot constitute a violation of 18 U.S.C. § 2441(c)(1).
Second, al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva Convention III. It might be argued that, even though it is not a State party to the Geneva Conventions, al Qaeda could be covered by some protections in Geneva Convention III. Article 4(A)(2) of Geneva III defines prisoners of war as including not only captured members of the armed forces of a High Contracting Party, but also irregular forces such as “[members of other militias and members of other volunteer corps, including those of organized resistance movements.” Article 4(A)(3) also includes as POWs “[members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” Id. art. 4(A)(3). It might be claimed that the broad terms of these provisions could be stretched to cover al Qaeda.
This view would be mistaken. Article 4 does not expand the application of the Convention beyond the circumstances expressly addressed in common articles 2 and 3. Unless there is a conflict subject to article 2, article 4 simply does not apply. If the conflict is one to which article 3 applies, then article 4 has no role because article 3 does not trigger application of the rest of the provisions of Geneva III. Rather, article 3 provides an alternative set of standards that requires only minimal humanitarian protections. As we have explained, the conflict with al Qaeda does not fall within article 2. As a result, article 4 has no application. In other words, article 4 cannot be read as an alternative, and a far more expansive, statement of the application of the Convention. It merely specifies, where there is a conflict covered by article 2 of the Convention, who must be accorded POW status.
Even if article 4, however, were considered somehow to be jurisdictional as well as substantive, captured members of al Qaeda still would not receive the protections accorded to POWs. First, al Qaeda is not the “armed forces,” volunteer forces, or militia of a state party that is a party to the conflict, as defined in article 4(A)(1). Second, they cannot qualify as volunteer force, militia, or organized resistance force under article 4(A)(2). That article requires that militia or volunteers fulfill four conditions: command by responsible individuals, wearing insignia, carrying arms openly, and obeying the laws of war. Al Qaeda members have clearly demonstrated that they will not follow these basic requirements of lawful warfare. They have attacked purely civilian targets of no military value; they refused to wear uniform or insignia or carry arms openly, but instead hijacked civilian airliners, took hostages, and killed them; and they themselves do not obey the laws of war concerning the protection of the lives of civilians or the means of legitimate combat. As these requirements also apply to any regular armed force under other treaties governing the laws of armed conflict, al Qaeda members would not qualify under article 4(A)(3) either, which provides POW status to captured individuals who are members of a “regular armed force” that professes allegiance to a government or authority not recognized by the detaining power. Members of al Qaeda, therefore, would not qualify for POW treatment under article 4, even if it were somehow thought that they were participating in a conflict covered by common article 2 or if article 4 itself were thought to be jurisdictional in nature.
Third, the nature of the conflict precludes application of common article 3 of the Geneva Conventions
. As discussed in Part I, the text of common article 3, when read in harmony with common article 2, shows that the Geneva Conventions were intended to cover either: a) traditional wars between state parties to the Conventions (article 2), b) or non-international civil wars (article 3). Our conflict with al Qaeda does not fit into either category. It is not an international war between nation-States because al Qaeda is not a State. Nor is this conflict a civil war under article 3, because it is a conflict of “an international character.” Al Qaeda operates in many countries and carried out a massive international attack on the United States on September 11, 2001. Therefore, the military’s treatment of al Qaeda members is not limited either by common article 3 or 18 U.S.C. § 2441(c)(3).
Status of Taliban Prisoners Under Article 4
Even if the President declines to suspend our obligations under Geneva III toward Afghanistan, it is possible that Taliban detainees still might not receive the legal status of POWs. Geneva III provides that once a conflict falls within common article 2, combatants must fall within one of several categories in order to receive POW status. Article 4(A)(l)-(3) sets out the three categories relevant here: i) members of the armed forces of a party to the conflict, along with accompanying militia and volunteer forces; ii) members of militia or volunteer corps who are commanded by an individual responsible to his subordinates, who have a distinctive sign recognizable from a distance, who carry arms openly, and who obey the laws of war; and iii) members of regular armed forces who profess allegiance to a government or authority that is not recognized by the detaining power. Should “any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy,” article 5 of Geneva III requires that these individuals “enjoy the protections of the Convention until a tribunal has determined their status. As we understand it, as a matter of practice prisoners are presumed to have article 4 POW status until a tribunal determines otherwise.
Although these provisions seem to contemplate a case-by-case determination of an individual detainee’s status, the President could determine categorically that all Taliban prisoners fall outside article 4. Under Article II of the Constitution, the President possesses the power to interpret treaties on behalf of the Nation. He could interpret Geneva III, in light of the known facts concerning the operation of Taliban forces during the Afghanistan conflict, to find that all of the Taliban forces do not fall within the legal definition of prisoners of war as defined by article 4. A presidential determination of this nature would eliminate any legal “doubt” as to the prisoners’ status, as a matter of domestic law, and would therefore obviate the need for article 5 tribunals.
We do not have, however, the facts available to advise your Department or the White House whether the President would have the grounds to apply the law to the facts in this categorical manner. Some of the facts which would be important to such a decision include: whether Taliban units followed a recognizable, hierarchical command-and-control structure, whether they wore distinctive uniforms, whether they operated in the open with their weapons visible, the tactics and strategies with which they conducted hostilities, and whether they obeyed the laws of war. If your Department were to conclude that the Afghanistan conflict demonstrated that the conduct of the Taliban militia had always violated these requirements, you would be justified in advising the President to determine that all Taliban prisoners are not POWs under article 4.
It is important to recognize that if the President were to pursue this line of reasoning, the executive branch would have to find that the Afghanistan conflict qualifies as an international war between two state parties to the Conventions. Article 4 is not a jurisdictional provision, but is instead only applied once a conflict has fallen within the definition of an international conflict covered by common article 2 of the Conventions. At this point in time, we cannot predict what consequences this acceptance of jurisdiction would have for future stages in the war on terrorism.
Nonetheless, if the President were to make such a determination, the WCA still would not impose any liability. As will be recalled, the WCA criminalizes either grave breaches of the Geneva Conventions or violations of common article 3. If members of the Taliban militia do not qualify as POWs under article 4, even though the conflict falls within common article 2’s jurisdictional provisions, then their treatment cannot constitute a grave breach under Geneva III. Article 130 of Geneva III states that a grave breach occurs only when certain acts are committed against “persons … protected by the Convention.” If the President were to find that Taliban prisoners did not constitute POWs under article 4, they would no longer be persons protected by the Convention. Thus, their treatment could not give rise to a grave breach under article 130, nor constitute a violation of the WCA.
Further, if the President were to find that all Taliban prisoners did not enjoy the status of POWs under article 4, they would not be legally entitled to the standards of treatment in common article 3. As the Afghanistan war is international in nature, involving as it does the use of force by state parties – the United States and Great Britain – which are outside of Afghanistan, common article 3 by its very terms would not apply. Common article 3, as we have explained earlier, does not serve as a catch-all provision that applies to all armed conflicts, but rather as a specific complement to common article 2. Further, in reaching the article 4 analysis, the United States would be accepting that Geneva Convention jurisdiction existed over the conflict pursuant to common article 2. Common article 3 by its text would not apply, and therefore any violation of its terms would not constitute a violation of the WCA.
For the foregoing reasons, we conclude that neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions of al Qaeda prisoners. We also conclude that the President has the plenary constitutional power to suspend our treaty obligations toward Afghanistan during the period of the conflict. He may exercise that discretion on the basis that Afghanistan was a failed state. Even if he chose not to, he could interpret Geneva III to find that members of the Taliban militia failed to qualify as POWs under the terms of the treaty. We also conclude that customary international law has no binding legal effect on either the President or the military because it is not federal law, as recognized by the Constitution.
We should make clear that in reaching a decision to suspend our treaty obligations or to construe Geneva III to conclude that members of the Taliban militia are not POWs, the President need not make any specific finding. Rather, he need only authorize or approve policies that would be consistent with the understanding that al Qaeda and Taliban prisoners are not POWs under Geneva III.
In May 2004, the US Secretary of Defense provided a media briefing whilst en-route to Baghdad. In responding to a question concerning the applicability of the 1949 Geneva Conventions to members of the Taliban and al-Qaeda with regard to their status as combatants, he responded:
[T]he Geneva Convention applied to parties, states. It did not apply to terrorist organizations like Al-Qaeda. Therefore, Al-Qaeda was not covered specifically by Geneva Convention. It did apply to Afghanistan and Taliban – and I’m going to be careful how I say this – because Taliban was running Afghanistan at the time so it applied. And the President said so. This was a presidential decision with hundreds of lawyers involved in it. They then concluded that the Taliban did not qualify because under Geneva there are certain things that one looks for to determine whether or not they are lawful or unlawful combatants. Had the Taliban worn uniforms, had the Taliban used weapons that were visible, had the Taliban functioned in a chain of command, had the Taliban done three or four other things that are the indicators or the criteria by which Geneva suggests it be judged as to whether someone is or is not a lawful or unlawful combatant. Had they had those characteristics and met those criteria, the President would have announced that the Geneva Convention applied specifically to Taliban. The judgment was that they did not meet those. They were not running around in uniforms. They were not doing those things that lawful combatants do. So the President made a decision that not only Al-Qaeda did not merit under the criteria of Geneva, the specific provisions as lawful combatants, but so too Taliban did not even though Afghanistan did as a country.
Geneva is designed to distinguish between lawful combatants like our men and women in uniform who we want protected under Geneva, because they wear uniforms, they wear – carry weapons that are exposed, they do function in a chain of command, they meet the criteria. And the Geneva Conventions were designed to protect people like that and not to protect people not like that.
So to the extent that unlawful combatants do what they do, that is to say blend into civilian, women and children, put them at risk, put them in danger, attack men and women and children who are civilians and innocents, to the extent they do that they are deemed by Geneva Convention to not be appropriate to fall under the provisions of Geneva.
The US Air Force Pamphlet (1976) provides:
A levée en masse
need not be organized, under command, or wear a distinctive sign. However, members must carry arms openly and comply with the law of armed conflict. To be a lawful levée en masse
, it must be a spontaneous response by inhabitants of a territory not under occupation to an invading force. Spontaneity requires that there be no time to organize into regular armed forces.
The US Naval Handbook (2007) states:
Lawful combatants … include civilians who take part in a levee en masse
. A levee en masse
is a spontaneous uprising by the citizens of a nonoccupied territory who take up arms to resist an invading force without having time to form themselves into regular armed units. Combatant immunity for a levee en masse
ends once the invading forces have occupied the territory.
The US Air Force Pamphlet (1976) provides that irregular forces, such as members of organized resistance movements belonging to a party to the conflict, are considered combatants if they meet certain requirements “customarily required of all combatants”, including having a fixed distinctive sign recognizable at a distance and carrying arms openly.
At the CDDH, the United States explained its vote in favour of Article 42 of the draft Additional Protocol I (now Article 44) as follows:
The article conferred no protection on terrorists. It did not authorize soldiers to conduct military operations while disguised as civilians. However, it did give members of the armed forces who were operating in occupied territory an incentive to distinguish themselves from the civilian population when preparing for and carrying out an attack … As regards the second sentence of paragraph 3, it was the understanding of [the US] delegation that situations in which combatants could not distinguish themselves throughout their military operations could exist only in the exceptional circumstances of territory occupied by the adversary or in those armed conflicts described in Article 1, paragraph 4, of draft Protocol I … The sentence was clearly designed to ensure that combatants, while engaged in military operations preparatory to an attack, could not use their failure to distinguish themselves from civilians as an element of surprise in the attack. Combatants using their appearance as civilians in such circumstances in order to aid in the attack would forfeit their status as combatants … Combatants must distinguish themselves from civilians during the phase of the military operation which involved moving to the position from which the attack was to be launched.
Upon signature of the 1977 Additional Protocol I, the United States stated:
It is the understanding of the United States of America that the phrase “military deployment preceding the launching of an attack” in Article 44, paragraph 3, means any movement towards a place from which an attack is to be launched.
In 1987, the Deputy Legal Adviser of the US Department of State affirmed:
The executive branch regards [the provision of Article 44(3) of the 1977 Additional Protocol I, second sentence] as highly undesirable and potentially dangerous to the civilian population and of course does not recognize it as customary law or deserving of such status.
In a memorandum issued in 1988, the Office of the Legal Adviser of the US Department of State stated:
Article 44 grants combatant status to irregular forces in certain circumstances even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the existing laws of war. This was not acceptable as a new norm of international law. It clearly does not reflect customary law.