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Decision Not to Regard Persons Detained in Afghanistan as POWs

Published online by Cambridge University Press:  16 May 2017

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Type
Contemporary Practice of the United States Relating to International Law
Information
American Journal of International Law , Volume 96 , Issue 2 , April 2002 , pp. 475 - 480
Copyright
Copyright © American Society of International Law 2002

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References

1 See Seelye, Katharine Q.. Seelye, First “Unlawful Combatants” Seized in Afghanistan Arrive at U.S. Base in Cuba, N.Y. Times, Jan. 12, 2002 Google Scholar, at A7.

2 See Seelye, Katharine Q..Rumsfeld Lists Outcomes for Detainees Held in Cuba, N.Y. Times, Feb. 27, 2002 Google Scholar, at A10. Most of the detainees reportedly are Saudi nationals. See Mintz, John, Most Detainees Are Saudis, Prince Says, Wash. Post, Jan. 29, 2002 Google Scholar, at A12.

3 See Reid, T. R. , U.S. Pressed on Detainees’ Treatments, Wash. Post, Jan. 17, 2002 Google Scholar, at A15; Mintz, John, Treatment of Detainees in Cuba Questioned, Wash. Post, Jan. 16, 2002 Google Scholar, at A13.

4 Sec Seelye, Katharine Q.. On Defensive, General Says Prisoners Get Mats, Even Bagels, N.Y. Times, Jan. 17, 2002 Google Scholar, at A14; Seelye, Katharine Q.. Rumsfeld Defends Treatment by U.S. of Cuba Detainees, N.Y. Times, Jan. 23, 2002 Google Scholar, at A1.

5 Mintz, John, At Camp X-Ray, a Thawing in the Animosity and Fear, Wash. Post, Feb. 3, 2002 Google Scholar, at A3; see Mintz, John, Captives Resist U.S. Questioning, Wash. Post, Feb. 7, 2002 Google Scholar, at A1. U.S. officials said that information obtained from the detainees assisted in identifying a possible terrorist attack in the United States or Yemen in early February. See Johnston, David, Attack Possible in U.S. or Yemen, the F.B.I. Warns, N.Y. Times, Feb. 12, 2002 Google Scholar, at A1.

6 See Shenon, Philip, Britain Defends U.S. Treatment of Detainees at Guantánamo, N.Y. Times, Jan. 22, 2002 Google Scholar, at A12; Q, Katharine. Seelye, , Criticized, U.S. Brings Visitors to Prison Camp, N.Y. Times, Jan. 26, 2002 Google Scholar, at A6; Mintz, John, Media Given a Tour of Tent Hospital, Wash. Post, Feb. 4, 2002 Google Scholar, at A3; Becker, Elizabeth, Red Cross Man in Guantánamo: A “Busybody, “ but Not Unwelcome, N.Y. Times, Feb. 20, 2002 Google Scholar, at A10.

7 Article 4 of the Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), Aug. 12, 1949, 6 UST 3316, 75 UNTS 135, provides:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

  • (1)

    (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

  • (2)

    (2) Members of other militias and members of other volunteer corps... belonging to a Party to the conflict and operating in or outside their own territory, . . . provided that such militias or volunteer corps . . . fulfil the following conditions:

  • (a)

    (a) that of being commanded by a person responsible for his subordinates;

  • (b)

    (b) that of having a fixed distinctive sign recognizable at a distance;

  • (c)

    (c) that of carrying arms openly;

  • (d)

    (d) that of conducting their operations in accordance with the laws and customs of war.

  • (3)

    (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

In the course of the debate over the applicability of the Third Geneva Convention, some commentators noted that the United States had not declared war on Afghanistan. The United States had adopted a joint resolution, however, authorizing the use of armed force in response to the September 11 attacks. See Pub. L. No. 107-40,115 Stat. 224 (2001). In any event, Article 2 of the Third Geneva Convention provides that the Convention applies to “all cases of declared war or of any other armed conflict” between two or more states “even if the state of war is not recognized by one of them.”

8 Article 5 of the Third Geneva Convention provides, in part:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

9 U.S. Department of The Army, Operational Law Handbook 22 (2002).

10 Common Article 3 provides that in “the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain basic protections, such as prohibitions on “violence to life and persons” and on “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Third Geneva Convention, supra note 7, Art. 3 (emphasis added); but see Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, para. 218 (July 27) (“There is no doubt that, in the event of international armed conflicts, these rules [of common Article 3] also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called “elementary considerations of humanity.”).

11 See Draft Memorandum from John Yoo, Deputy Assistant Attorney General, and Delahunty, Robert J.. Special Counsel, U.S. Department of Justice, to William J. Haynes II, General Counsel, Department of Defense (Jan. 9, 2002)Google Scholar (on file at GWU).

12 See, e.g., Roberts, Adam, The Prisoner Question, Wash. Post, Feb. 3, 2002 Google Scholar, at B1 (“[T]he elasticity of Article 4 must have limits somewhere, and it seems probable that al Qaeda detainees would be ineligible for POW status. The Taliban are more problematic. A plausible argument could be made that they scrape by, most likely under the heading of ‘members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.’”)

13 Third Geneva Convention, supra note 7, Art. 4(A) (3); see Seelye, Katharine Q.. & Sanger, David E.. Bush Reconsiders Stand on Treating Captives of War, N.Y. Times, Jan. 29, 2002 Google Scholar, at A1.

14 See Seelye, Katharine Q.. Powell Asks Bush to Review Stand on War Captives, N.Y. Times, Jan. 27, 2002 Google Scholar, at 1; Safire, William, Colin Powell Dissents, N.Y. Times, Jan. 28, 2002 Google Scholar, at A21.

15 See Seelye, Katharine Q.. Prisoners Straddle an Ideological Chasm, N.Y. Times, Jan. 27, 2002 Google Scholar, at 14.

16 See Seelye, Katharine Q.. In Shift, Bush Says Geneva Rules Fit Taliban Captives, N.Y. Times, Feb. 8, 2002 Google Scholar, at A15; John Mintz & Allen, Mike, Bush Shifts Position on Detainees, Wash. Post, Feb. 8, 2002 Google Scholar, at A1.

17 [Editor’s Note: See Third Geneva Convention, supra note 7, Art. 25 (providing that prisoners of war “shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area.”)].

18 [Editor’s Note: See id., Art. 28.]

19 [Editor’s Note: See id., Art. 60.]

20 [Editor’s Note: See id., Arts. 64-65.]

21 [Editor’s Note: See id., Art. 72.]

22 White House Fact Sheet on Status of Detainees at Guantanamo (Feb. 7, 2002), at <http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html>.

23 See Seelye, Katharine Q.. Detainees Are Not P. O.W.’s, Cheney and Rumsfeld Declare, N.Y. Times, Jan. 28, 2002 Google Scholar, atA6 (quoting Secretary of Defense Rumsfeld that “[t]here is no ambiguity in this case”).

24 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287.

25 Protocol I Additional to the 1949 Geneva Conventions provides a range of fundamental guarantees to all persons arrested who do not qualify as prisoners of war. See Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Victims of International Armed Conflicts, June 8, 1977, Art. 75, 1125 UNTS 3, 16 ILM 1391. While the United States has not ratified Protocol I, government officials have previously asserted that the United States supports the fundamental guarantees contained in Article 75. See Matheson, Michael J.. The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U.J. Int’l L. & Pol’y 419, 427–28 (1987)Google Scholar.

26 International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 UNTS 171.

27 See U.S. POW Decision Criticized, Wash. Post, Feb. 9, 2002, at A22.

28 ICRC Press Release on Geneva Convention on Prisoners of War (Feb. 9, 2002), at <http://www.icrc.org>.

29 U.S. Dep’t of Defense News Transcript, Secretary Rumsfeld Media Availability en Route to Camp X-Ray (Jan. 27, 2002), at <http://www.defenselink.mil/news/Jan2002/t01282002_t0127sd2.html>.

30 Third Geneva Convention, supra note 7, Art. 17.

31 Id, Art. 118.

32 Id, Arts. 99-108.

33 Pierre-Richard Prosper, Ambassador-at-Large for War Crimes Issues, Status and Treatment of Taliban and al-Qaida Detainees, Remarks at Chatham House, London, United Kingdom (Feb. 20, 2002), at <http://www.state.gov/s/wci/rls/rm/2002/8491.htm>.