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The Taliban, Al Qaeda, and the Determination of Illegal Combatants
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The Taliban, Al Qaeda, and the Determination of Illegal Combatants
2 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001).
3 Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 [hereinafter Geneva Convention No. III].
4 This comment is an expansion of remarks by the author at a symposium in The Hague on June 7, 2002, that was sponsored by the Netherlands Red Cross and the Leiden University Chair of International Humanitarian Law.
5 Ari Fleischer, Special White House Announcement Re: Application of Geneva Conventions in Afghanistan (Feb. 7, 2002), available in LEXIS, Legis Library, Fednew File; see also White House Fact Sheet: Status of Detainees at Guantanamo (Feb. 7, 2002), at <http://www.whitehouse.gov/news/releases/2002/02/>.
6 I was a member of the Office of the General Counsel to the Secretary of Defense from 1960 to 1965 and of the Office of the Legal Adviser to the Secretary of State from 1965 to 1977.
7 While members of the armed forces of parties to the Geneva Conventions who are not combatants, such as medical personnel and chaplains, as well as certain categories of persons who accompany the armed forces, are entitled to POW status if captured, other persons who are not members of the armed forces are civilians and, as such, are not privileged by law to take part legally in hostilities. See Regulations Respecting the Laws and Customs of War on Land, Art. 1, annex to Convention [No. IV] Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631; Geneva Convention No. III,supra note 3, Art. 4; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Arts. 43, 44, 1125 UNTS 3 [hereinafter Protocol I]. From this analysis I exclude the archaic “levée en masse” provided for in Article 2 of the Hague Regulations, supra, and retained in Article 4 A(6) of Geneva Convention No. III,supra.
8 All four Geneva Conventions include a common Article 2, which provides:
In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, Art. 2, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12,1949, Art. 2; 6 UST 3217, 75 UNTS 85; Geneva Convention No. III, supra note 3, Art. 2; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 2, 6 UST 3516, 75 UNTS 287 [hereinafter Geneva Convention No. IV].
9AccordFitzpatrick, Joan, Jurisdiction of Military Commissions and the Ambiguous War on Terrorism, 96 AJIL345, 348 (2002). But see id. at 353 (stating that some Qaeda combatants “may also be entitled to presumptive POW status”).
10 U.S. Dep’t of State, Treaties in Force: A List of Treaties and Other International Agreements of The United States in Force on January 1,1998, at 437, available at <http://www.state.gov>/s/l/> (last modified Jan. 1, 2000). A list of state parties to the Conventions is also available online at <http://www.icrc.org/eng>.
11 I know of no evidence suggesting that Qaeda personnel were incorporated in Taliban military units as part of the Taliban armed forces.
12 With respect to illegal combatants to whom the Geneva Conventions apply, it may be argued that such persons enjoy some additional protections as “protected persons” under the Geneva Convention Relative to the Protection of Civilian Persons of 1949, but such status would not preclude their prosecution and punishment under national laws. See Geneva Convention No. IV, supra note 8, pt. III; U.S. Dep’t of The Army, The Law of Land Warfare, para. 73 (Field Manual 27-10, 1956), available at <http://www.adtdl.army.mil/atdls.htm> (1976 ed.). Qaeda personnel would not qualify as “protected persons,” because die Geneva Conventions do not apply to the conflict with them. Moreover, virtually all of them appear to be nationals of states with which the United States has normal diplomatic relations, and such nationals are excluded from the definition of protected persons by Article 4 of the Convention.
13Baxter, R. R., So-called “Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs, 1952Brit. Y.B. Int’l. L. 323, Reprinted inMil. L. Rev. Bicentennial Issue487, 501 (1975).
14 Fleischer, supra note 5.
15 Article 4A(2) of Convention No. Ill, supra note 3, includes the following category of persons captured by the enemy who are entitled to POW status:
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
16Id Art. 4A(1).
17See, e.g., Rosas, Allan, The Legal Status of Prisoners of War328 (1976); Thomas Mallison, W. & Sally, V. Mallison, The Juridical Status of Irregular Combatants Under the International Humanitarian Law of Armed Conflict, 9 Case W. Res. J. Int’ L L. 39, 44, 48 (1977). Ruth Wedgwood, in the Agora, supra note 1, agrees, seeWedgwood, Ruth, Al Qaeda, Terrorism, and Military Commissions, 96 AJIL328, 335 (2002), but Michael J. Matheson, in the Agora, implies that the four conditions do not apply to the armed forces of a state, seeMichael, J. Matheson, U.S. Military Commissions: One of Several Options, 96 AJIL354, 355 (2002).
18 Fleischer, supra note 5.
19Contra Wedgwood, supra note 17, at 335.
20 All of the then-Communist states made a reservation to Article 85 of Geneva Convention No. Ill to the effect that they refused to accept continued POW status for prisoners of war who were tried and convicted of war crimes or crimes against humanity. North Korea and North Vietnam, however, denied POW status to all American prisoners solely on the basis of the allegation that they were all war criminals. George, H. Aldrich, The Laws of War on Land, 94 AJIL 42, 62 n.100 (2000).
22 Note that Article 17 of Convention No. Ill provides, inter alia:
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.
23See, e.g., Guy, B. Roberts, The New Rules for Waging War: The Case Against Ratification of Additional Protocol 1, 26 Va. J. Int’l. L.109 (1985); Douglas, J. Feith, Law in the Service of Terror—The Strange Case of the Additional Protocol, Nat’l Interest, Fall1985, at 36; Safire, William, Rights for Terrorists’? A 1977 Treaty Would Grant Them, N.Y. Times, Nov. 15, 1984, at A31; Abraham, D. Sofaer, Terrorism and the Law, 64 Foreign Aff. 901 (1986)
For responses to these comments, see George, H. Aldrich, Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85 AJIL1 (1991); George, H. Aldrich, Progressive Development of the Laws of War: A Reply to Criticisms of the 1977 Geneva Protocol I, 26 Va. J. Int’l L.693 (1986); Hans-Peter, Gasser, An Appeal for Ratification by the United States, 81 AJIL912 (1987); Waldemar, A. Solf, A Response to Douglas J. Feith s Law in the Service of Terror—The Strange Case of the Additional Protocol, 20 Akron L. Rev.261 (1986).
24 Geneva Convention No. Ill, supra note 3, Art. 5.
25AccordDaryl, A. Mundis, The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts, 96 AJIL320, 325 (2002).
27George, H. Aldrich, Individuals as Subjects of International Humanitarian Law, In Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski851, 855-56 (Makarczyk, Jerzy ed., 1996).
28 U.S. Dep’t of the Army, supra note 12,para. 71(b).
29 Article 45, paragraph 1 of Protocol I, supra note 7, provides:
A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.
30 Article 12 of Geneva Convention No. Ill, supra note 3, includes the following restriction:
Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.
31 Paragraph 2 of Article 45 of Protocol I, supra note 7, reads in full:
If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated. Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offence. The Representatives of the Protecting Power shall be entitled to attend the proceedings in which that question is adjudicated, unless, exceptionally, the proceedings are held in camera in the interest of State security. In such a case the detaining Power shall advise the Protecting Power accordingly.
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