Detainees or Prisoners of War?: The Applicability of the Geneva Convention to the War on Terrorism
by Diane K. Hook1
International laws regarding the treatment of prisoners of war are found in the Geneva Convention Relative to the Treatment of Prisoners of War and the Hague Convention (IV) Respecting the Laws and Customs of War on Land. Prisoners of war captured as a result of the War on Terrorism currently consist of members of the Taliban and members of the al Queda forces. Because neither the Taliban nor the al Queda qualify for belligerent status, members of those forces are not entitled to prisoner of war treatment. Notwithstanding, the United States is providing humane treatment in accordance with the principles of the applicable Geneva Convention and is not breaching its international law obligations by not affording prisoner of war status. Although the United States could choose to adjudicate the detainees in the United States federal courts or an international criminal court, the detainees will be tried using military tribunals.
I. Introduction
International law governs almost every aspect of armed conflict, and a substantial and well-developed body of law provides guidelines regarding the treatment of prisoners of war or persons who are not prisoners of war but possess rights as established by international humanitarian law. This article will discuss the status of the al Queda and Taliban prisoners, collectively "detainees," housed at Camp X-Ray, Guantanamo Bay, Cuba, and detained as a result of their participation in terrorist activities or in aid of terrorist activities. This article concludes that neither al Queda nor Taliban prisoners must be afforded prisoner of war status under applicable international laws.
II. Applicable Law
The rules regarding the treatment of prisoners of war are found in the Geneva Convention Relative to the Treatment of Prisoners of War (Geneva III)2 and the Hague Convention (IV) Respecting the Laws and Customs of War on Land, Annex to the Convention (Hague IV).3 The laws regarding armed conflict generally, and prisoners of war specifically, have historically been difficult to administer on an international level because there have never been international bodies in continuous session to enforce them.4 Therefore, compliance with Geneva III, Hague IV and other laws of war was, and is, largely a matter of reciprocation and retaliation.5 In other words, as long as one party adheres to the rules, the other party(ies) would also adhere to the rules. Violations of the rules have been met with retaliation that is meant to re-establish respect for those rules.6 If one party is not a signatory to Geneva III or Hague IV, the party that is a signatory to the convention is still expected to abide by its contractual obligations.7
The Geneva Conventions are associated with the activities of Henry Dunant, who witnessed the Battle of Solferino in northern Italy in 1859, and identified a desperate need to aid the wounded of armed conflicts.8 The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field9 led to additional conventions, all of which were expanded in 1949, regarding the forces at sea,10 prisoners of war,11 and the protection of civilians at time of war.12 Both the United States of America and Afghanistan are High Contracting Parties to all four of the Geneva Conventions.
Geneva III defines prisoners of war as "persons . . . who have fallen into the power of the enemy" and who can be included within one of six categories.13 The categories are:
(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) 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.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour [sic] units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable [sic] treatment under any other provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.14
Geneva III indicates that if there is any doubt as to whether persons who have fallen into the hands of the enemy belong in any of the enumerated categories, "such persons shall enjoy the protection[s] of the . . . Convention until such time as their status has been determined by a competent tribunal."
15
Hague IV indicates that the laws of war apply not only to armies, but to persons or corps fulfilling four conditions: (1) forces that are "commanded by a person responsible for his subordinates," (2) possession of a "fixed . . . emblem recognizable at a distance," (3) carrying of arms openly, and (4) conducting its "operations in accordance with the laws and customs of war."16 If the four conditions are met, the armed force qualifies as a belligerent. Geneva III contemplates that forces must qualify for belligerent status, thus meeting the four conditions, before its members are eligible for prisoner of war status.17 The qualifications for belligerents under Hague IV are almost identical to Geneva III's requirements for prisoner of war status.
A. Application to the War on Terrorism
There are two types of prisoners being housed at Camp X-Ray, Guantanamo Bay, Cuba: prisoners associated with Osama bin Laden's al Queda network and prisoners associated with Afghanistan's former, and almost universally unrecognized, government, the Taliban.18 (Only three countries have recognized the Taliban regime as the lawful government of Afghanistan: Saudi Arabia, the United Arab Emirates and Pakistan.)19 Neither the United Nations nor the United States have recognized the Taliban as the government of Afghanistan. Arguably, the two groups of prisoners could be treated differently, even though members of each group have committed identical offenses. Taliban prisoners, because they comprise the "army" of Afghanistan, seem to be included under Geneva III's allowance for prisoners of war status for "[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power."20 However, the White House has determined that the Taliban prisoners, even though covered under Geneva III's allowance for unrecognized armies, do not qualify for prisoner of war status because they do not meet the four conditions of belligerent status contained in Hague IV and Geneva III: responsible commander, distinctive sign/emblem, open arms, and operating in accord with the laws of war.21
1. The Taliban
There are few, if any, credible arguments that the Taliban soldiers have met all of the four conditions for belligerent status. The Taliban does not have a recognizable military hierarchy, commanded by a person who is responsible for his subordinates. It has been suggested that a "'responsible' command structure is capable of ensuring that the entire military organization complies with the laws of war and that any malfeasance must be addressed and punished."22 The Taliban's military forces have been run by an ever-changing cast of commanders whose authority is unclear, especially since the Taliban regime has toppled.23 Further, leaders of the Taliban seem to encourage non-compliance with the laws of war, rather than address and punish malfeasance.24
Additionally, the Taliban fighters do not display an emblem that would identify their forces as combatants. This requirement is designed to protect non-combatants or civilians and recognizes that when combatants are able to hide within the civilian population, the chance that a civilian population will be fired upon and suffer casualties is drastically increased.25 In other words, a "concealed combatant certainly has an advantage over the uniformed soldier, [and] . . . the advantage comes with a price that others must pay."26 Such a distinctive emblem could take the form of an armband, a coat, a shirt, or a colored sign worn on the chest. The most common emblems take the form of a uniform or a flag. Members of the Taliban are not issued uniforms, they do not carry a flag that is consistently uniform in nature,27 nor are they wearing armbands or colored signs on their chests. Additionally, they blend in well with the population because the Taliban fighters, as opposed to the al Queda fighters, are largely Afghan by nationality.28 Therefore, if the Taliban fighters have in some way distinguished themselves from the civilian population of Afghanistan, it is not apparent to their opponents.
However, the Taliban fighters do carry their arms openly. Afghanis habitually and customarily carry weapons about their persons.29 Even small children can be seen with weapons.30 Therefore, the Taliban have met this requirement, but their carrying arms openly appears only to be a societal norm with little intended consequence in terms of the international laws of war.
The Taliban has not conducted its operations in accordance with the laws and customs of war. From its inception, the Taliban has been a guerilla force, aided by Pakistani and Iranian forces, assassinating leaders who did not agree with Taliban policies.31 Additionally, the Taliban's treatment of women is quite well known,32 and human rights violations against women have been prevalent.33 Violations include preventing Afghan women from being employed or educated, forcing Afghan women to be covered completely by burqas, prohibiting medical services for women, and allowing women to be raped as spoils of war.34 Members of the Taliban have also massacred thousands of innocent civilians at the battle of Mazar-i-Sharif, in Robatak Pass and in Yakaolang, apparently basing the massacre on ethnic differences.35 These violations are against the letter and spirit of international human rights laws, which are embodied in the Universal Declaration of Human Rights adopted by the United Nations in 1946.36 A further example of human rights violations occurred when a spokesperson of the Taliban, Mullah Omar, in regard to the Taliban's failure to abide by Afghanistan's treaty obligations and customary international law, has said, "We [the Taliban] do not accept something which somebody imposes on us under the name of human rights which is contradictory to the holy Koranic law."37 Thus, the Taliban's actual violation of human rights in Afghan territory and Mullah Omar's declaration of intention not to follow human rights laws may be construed as a violation of customary international law obligations and international treaty obligations.
In the War on Terrorism, it is arguable that members of the Taliban have not treated at least one injured American soldier according to the laws of war regarding prisoners of war. In Operation Anaconda, U.S. troops were in armed conflict with a large pocket of fighters who were loyal to Osama bin Laden. The popular press has indicated that there were both Taliban and al Queda fighters on site.38 Accounts of the March 4th, 2002, incident regarding the Navy SEAL, Neil Roberts, who fell from a Chinook helicopter, indicate that Roberts survived the fall from the helicopter, but was hauled away by the fighters and was later found dead with a bullet wound to the head.39 Roberts' capture, but not his death, was recorded on video tape, filmed by a surveillance drone equipped with night lenses, and the London Sunday Times identified the captors as al Queda.40 However, many other popular news services simply indicate that Roberts was killed after capture, without identifying the perpetrators as either al Queda or Taliban.41 Therefore, it is difficult to say conclusively whether the perpetrators were, in fact, al Queda or Taliban, especially when journalists who are not precise use the terms al Queda and Taliban interchangeably. Without more information, which will likely never be forthcoming, an argument could be made that Roberts was killed by either al Queda or Taliban, or both.
Because the Taliban does not have a recognizable military structure with a responsible person at it head, its members do not display a distinctive emblem that would distinguish them from the civilian population, and it has not conducted its operations in accordance with the laws of war, members of the Taliban have not met Geneva III's requirements for prisoner of war status. This is consistent with the interpretation of the International Committee of the Red Cross,42 which is widely recognized as a respected authority on interpretation of all of the Geneva Conventions. The Commentary indicates that:
[o]nce one is accorded the status of a belligerent, one is bound by the obligations of the laws of war, and entitled to the rights which they confer. The most important of these is the right, following capture, to be recognized as a prisoner of war, and to be treated accordingly.43
To be classified as a belligerent, an armed force must fulfill the four conditions outlined both in Hague IV and Geneva III.44 A belligerent may be an inhabitant of an occupied territory who spontaneously takes up arms (as in a mass uprising), or who is "under the protection and empire of the principles of international law."45 Mass uprisings are still subject to the laws and customs of war, and the category is to allow prisoner of war treatment to persons who have not had the opportunity to form themselves into military units, but in other respects meet the four conditions.46 The Commentary uses the phrase "under the protection and empire of the principles of international law" to describe those "persons who, from time to time, participate on their own initiative in war operations and then return to their peaceful pursuits, and . . . persons who take isolated action in . . . order to be of service to their country."47
Applying the Commentary's principles to the Taliban regime, members of the Taliban are not eligible for prisoner of war status because they have not fulfilled all four of the conditions of Hague IV and Geneva III as discussed supra. They are not inhabitants of an occupied territory who have spontaneously taken up arms, they are not under the protection and empire of international law because they do not participate and return to peaceful pursuits, nor is their motive to be of service to their country (but rather to be of service to the regime that happens to occupy a country). Therefore, the United States and any other country that participates in the Coalition Forces should not feel compelled to bestow prisoner of war status upon members of the Taliban.
It would seem logical that even though the Taliban have not met the four conditions in Hague IV and Geneva III, members of the Taliban could still obtain prisoner of war status under Geneva III's allowance for "(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power."48 Although this argument seems facially sound, the Commentary indicates that the same four conditions are required under this allowance.49 While it is true that the United States has never recognized the Taliban as the legitimate government of Afghanistan,50 the Commentary makes it clear that members of the Taliban do not qualify as "members of regular armed forces."51 According to the Commentary, the expression "members of regular armed forces" means that "all of the material characteristics and all the attributes of armed forces"52 are present, including organized hierarchy of command, recognizable emblems, and obedience to the laws and customs of war.53 In essence, the only difference between a belligerent and an unrecognized armed force is that the members of the armed force are not currently operating under the direct authority of a party that is recognized by the Detaining Power.54 All four conditions listed in both Hague IV and Geneva III must still be met. Consequently, members of the Taliban need not be afforded prisoner of war status under Geneva III's allowance for unrecognized authority provision.
2. Al Queda
Osama bin Laden's al Queda network likewise does not meet any of the four conditions of belligerent status and its members should not receive prisoner of war status. Osama bin Laden is not a responsible commander. At a minimum, one of the attributes of a responsible commander should be availability for peace talks, surrender, or other communications from an opposing force. Of course, Osama bin Laden has not been available for communications with the United States since the War on Terrorism began.
Al Queda fighters do not have a fixed, distinctive emblem recognizable at a distance. Its members wear no uniform, armband, coat or shirt, and they carry no flag. In fact, it is difficult to tell Taliban mercenaries from al Queda fighters.55
In some respects, al Queda fighters carry their arms openly, at least while in Afghanistan. However, members of the al Queda did not carry box cutters openly while they were perpetrating the tragedies of September 11, 2001.
Finally, al Queda has not conducted its operations in accordance with the laws and customs of war, and has been credited with attacks on American embassies in Kenya and Tanzania,56 the bombing of the U.S.S. Cole,57 threatening international peace and security by issuing a fatwa (an Islamic edict) against America and Americans in 1998,58 and using force against non-combatants in New York and Washington D.C. on September 11, 2001.59 All of these acts are considered serious breaches of international law. Therefore, al Queda fighters have not met the four conditions required to be a belligerent and are not entitled to the benefits of prisoner of war status.
There is another reason that members of the al Queda network are not entitled to prisoner of war status. Distinctions "between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi – pirates . . . and outlaws [which are] 'the common enemies of mankind,'" have been made as early as Roman times and have been incorporated into the international laws of war.60 It is alleged by Sir Michael Howard, an eminent military historian, that the Geneva Conventions were drafted to address bellum/legitimus hostis conflicts, and that states in conflicts with guerra/latrunculi could summarily execute those types of enemies because they have no right to participate in hostilities.61
There is no doubt that terrorists are the common enemy of mankind, and that perhaps in another time in history they would have been summarily executed. However, the United States is distinguished from many other international states by the humane way in which all persons, regardless of nationality or crime, are treated. Toward that end, President Bush has declared that the all detainees in Camp X-Ray will be treated both humanely and equally, in accord with the principles of Geneva III, but that Geneva III does not cover all situations in which people are captured by military forces, and, therefore, the detainees will not attain prisoner of war status.62
III. Camp X-Ray Detainees
The detainees, both Taliban and al Queda alike, are receiving, as a matter of United States policy, the following items:
Three meals a day that meet Muslim dietary laws
Water
Medical care
Clothing and shoes
Showers
Soap and toilet articles
Foam sleeping pads and blankets
Towels and washcloths
The opportunity to worship
Correspondence materials, and the means to send mail
The ability to receive packages of food and clothing, subject to security screening.63
The White House further states that none of the detainees will be subjected to cruel treatment or mental or physical abuse.64 The detainees are presently housed in open-air shelters while more suitable housing is being built, and the position of the White House is that the open air "shelters are reasonable in light of the . . . security risk posed by these detainees and the mild [Cuban] climate."65 However, there are several watchdog groups that argue, among other things, that the detainees are entitled to a more comfortable detention.66
Because the detainees are not given prisoner of war status, there are some privileges that will not be afforded to them. According to Geneva III and the White House, the detainees, if their status is prisoner of war, would be entitled to "a monthly advance of pay, the ability to have and consult personal financial accounts, the ability to receive scientific equipment, musical instruments, or sports outfits," and "access to a canteen to purchase food, soap and tobacco" (or other items).67 The White House has clearly stated that terrorists will not be provided these items at taxpayer expense.68
IV. Adjudication Options
A. Release and Repatriate
The detainees should not be held indefinitely without adjudication, and the United States has several options at its disposal regarding disposition. First, and it is the position stated in Geneva III, "[p]risoners of war [should] be released and repatriated without delay after the [hostilities cease]."69 As stated above, members of the Taliban and al Queda do not qualify as prisoners of war and, therefore, the United States would not breach its international obligations if it chose not to repatriate the detainees immediately after hostilities cease. Additionally, since one of the objectives of the War on Terrorism is to quash terrorist activity, it would not further that goal to repatriate persons who have either harbored terrorists (Taliban) or are suspected terrorists themselves (al Queda). While they cannot be held indefinitely for acts that they might commit, it does not make sense to repatriate them so that these persons can revive old terrorist cells and networks and strike again. Additionally, since both the Taliban and the al Queda have been forced out of Afghanistan, should the detainees be repatriated to their county of nationality, the country of their choosing, or back to Afghanistan? Again, Geneva III contemplates that the country upon which the detainees depend actually wants them back.70 Therefore, it is quite unlikely that any detainee who poses a threat of repeated terrorist activity will be "repatriated without delay after the cessation of active hostilities."71 Further, President Bush has warned the world that the War on Terrorism may be a lengthy proposition by stating: "Our war on terror is well begun, but it is only begun. This campaign may not be finished on our watch — yet it must be and it will be waged on our watch."72 Therefore, repatriation after cessation of hostilities probably will not be considered.
B. Adjudication in U.S. Federal Court
The United States could elect to try all of the detainees in federal court. Of course, trying any person criminally in any court of the United States involves various protections such as due process, innocence until proven guilty, court-appointed counsel, evidentiary rulings according to the Federal Rules of Evidence, and other constitutional protections. This could mean that the United States, as plaintiff, might have to choose between admitting sensitive information that could compromise national security and not meeting its burden of proof because of the constitutional protections afforded the defendant. Additionally, the United States will have to consider the safety of jurors, judges, other court personnel, attendees, and lawyers, both while the trial is in session and thereafter. Undoubtedly, remaining terrorist cells would attempt mischief in order to influence the outcome of any trial of their comrades.
The United States has chosen to try at least two individuals connected to the Taliban and al Queda in federal court: John Walker Lindh73 and Zacarias Moussaoui.74 Because the United States has decided to try Lindh, an American citizen by birth, in federal court, it appears that prosecutors have abandoned arguments that Lindh has renounced his American citizenship. Arguably, renouncing one's American citizenship creates foreign citizenship and, therefore, would subject that person to the same type of tribunal as the other detainees.
Initially, one could argue that the reason why Moussaoui, who is a citizen of France, is being tried in federal court is simply for the sake of relations with France. However, since the United States has elected to seek the death penalty as a possible punishment upon Moussaoui, the decision has certainly negatively affected diplomatic relations with the French.75 It is a common belief in the international community that the United States is "barbaric" because of the imposition of the death penalty in our domestic laws. The European Union members have been especially vocal. Notwithstanding, the United States has in the past imposed the death penalty upon German nationals, despite disapproval of the German government.76 The likely consequence of consideration of the death penalty is that the French may decide to cease cooperation with the United States' investigation of Moussaoui, which would be permissible under various bilateral treaties.77 It is rumored that the French possess a voluminous file on Moussaoui and his ties to al Queda and other militant Muslim groups.78
C. Adjudication in the International Criminal Court
The United States could seek to have the detainees tried in an international criminal tribunal. Presently, there are two working models in the form of the International Criminal Tribunal for the Former Yugoslavia79 and the International Criminal Tribunal for Rwanda.80 These criminal tribunals are the forerunners of a permanent International Criminal Court (ICC). The ICC is a product of a joint 1988 conference between the International Law Commission and the United Nations, wherein participating nations negotiated and adopted the regulations for the ICC.81 The ICC will come into existence on the first day of the month following 60 days after the 60th country has ratified the statute.82 The ICC became a permanent criminal tribunal as of July 1, 2002.83 President Clinton, on behalf of the United States, signed the statute, but recommended that it not be submitted to the Senate for ratification because of significant flaws.84 President Bush not only did not recommend ratification, but actually withdrew the United States' signature from the Rome Statute, which is quite extraordinary under international law.85 In fact, committees in both houses of Congress have considered the American Service Members Protection Act, which prohibits the United States' cooperation with the ICC.86
One significant flaw of the ICC is that it claims to have universal jurisdiction, which purports to give it authority to prosecute individuals from countries who have not signed the treaty, a derogation of national sovereignty.87 Since the ICC is under not an obligation to safeguard the Bill of Rights, American service members, if prosecuted by the ICC, may be denied U.S. constitutionally protected rights such as right to a trial by jury, right against self-incriminating testimony, confrontation, and cross-examination.88 Another significant flaw is the ICC's inherent jurisdiction to decide who to prosecute, which could mean that anti-American justices could prosecute diplomats, soldiers, businessmen, and tourists for what they consider to be humanitarian abuses.89 As a result, if the ICC claims to have jurisdiction over the detainees, it is highly unlikely that the United States will cooperate in any way with the ICC.
D. Adjudication Using Military Tribunals
The United States, however, has selected military tribunals to adjudicate the detainees.90 "A military commission is a war-time, military tribunal used to try violations of the laws of war."91 The U.S. has participated in military tribunals in the past. The Nuremberg trials, a notable example, were international military tribunals designed to try war criminals whose crimes were not confined to any one particular location.92 President Bush has indicated that members of al Queda, persons involved in acts of international terrorism against the United States, persons who knowingly harbor such terrorists, the Taliban and possibly members of other governments are eligible to be tried by a military tribunal or commission.93 A commission consists of between three and seven members who are officers in the United States Armed Forces.94 The protections afforded defendants in military commissions are: (1) military defense counsel at no cost or counsel of their own choosing at their own expense, (2) presumption of innocence until proven guilty, (3) a standard of guilt beyond a reasonable doubt, (4) defendant's right to refuse to testify, and (5) prohibition of double jeopardy before military commissions.95
The military commissions generally will be open to the public, but will be closed to photography, video and audio recording, broadcasting, or when classified or sensitive information is presented, or when the physical safety of the participants is in question.96 The death penalty will be available, but instead of a two-thirds vote of the members, which is normally required for conviction, a unanimous vote of the members is required to impose it.97 The commissions have come under fire because there is a relaxed standard of evidentiary rules (for example, hearsay evidence can be admitted if it has "probative value to a reasonable person") and because there is no opportunity for civilian appellate review.98
V. Conclusion
The War on Terrorism undoubtedly is a war unlike any war that the United States has previously conducted and, consequently, the United States has found itself in the possession of prisoners of war unlike any captured before. International customary and treaty law, while giving guidance on some issues, can be seen as being inadequate on others. As a result, new declarations, resolutions and conventions must be facilitated by the United Nations so that clear guidelines can be established with regard to the treatment of prisoners of war.
Footnotes
1 Ms. Hook is a J.D. candidate, 2003, at the University of Missouri-Kansas City School of Law.
2 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135, available at www.yale.edu/lawweb/avalon/lawofwar/geneva03.htm [hereinafter "Geneva III"].
3 Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539, available at http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm [hereinafter "Hague IV"].
4 But see Rome Statute of the International Criminal Court, U.N. Doc. 32/A/CONF. 183/9, I.L.M. 999 (1998). .http://www.un.org/law/icc/statute/romefra
5 W. Michael Aeisman & Chris T. Antoniou, The Laws of War: A Comprehensive Collection of Primary Documents on International Laws Governing Armed Conflict xviii (Vintage 1994).
6 Id.
7 See Geneva III, at art. 2.
8 See Reisman, note 5 at xxi and Founding and Early Years of the International Committee of the Red Cross.
9 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31 available at http://www1.umn.edu/humanrts/instree/y1gcacws.htm.
10 Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85 available at http://www1.umn.edu/humanrts/instree/y2gcacws.htm.
11 Geneva III, see note 2.
12 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 347.
13 Geneva III, at art. 4.
14 Id.
15 Id. at art. 5.
16 Hague IV, supra note 3 at art. 1.
17 International Committee of the Red Cross, Commentary on the Geneva Conventions, 45-64 (J. Pictet, ed., 1960) also available at: http://www.icrc.org/IHL.nsf/COMART?OpenView&Start =1&Count=30&Expand=3#3 [hereinafter "Commentary"].
18 Statement by the Press Secretary, The White House, Regarding the Status of the Detainees in Guantanamo Bay, Feb. 7, 2002, available at 2002 WL 191074.
19 Alissa Rubin, Response to Terror: Sorting Through Truth, Fiction in Afghan Prison, Los Angeles Times, Feb. 17, 2002 at A.1. Available at 2002 WL 2454690.
20 Geneva III, article 4(A)(3).
21 Statement by the Press Secretary, see note 18.
22 The Laws of War, They Aren't POWs, The Washington Post, Mar. 3, 2002, at B03.
23 Id.
24See notes 32-33.
25See Reisman, at note 5 at 43-44.
26Id. at 44.
27 See generally "Afghanistan 1996-2001: Taliban Regime, Islamic Emirate of Afghanistan," at http://flagspot.net/flags/af_talib.html.
28 Beth Daley, Old Loyalties Blur Fate of Pakistan's Captives, The Boston Globe, Dec. 18, 2001 at A1.
29 Laws of War, at note 22.
30 Afghanistan On-line, at http://www.afghan-web.com/gallery/kid3.jpg (image of small boy holding an automatic weapon.)
31 See Chronological History of Afghanistan Part IV (1978-Present) at http://www.afghan-web.com/history/chron/index4.html.
32 Women and Girls in Afghanistan, Fact Sheet released by the Senior Coordinator for International Women's Issues, Mar. 10, 1998, available at http://www.state.gov/www/global/women/fs_980310_women_afghan.html. See also Laws of War, at note 22.
33 Laws of War, at note 22.
34 See Fact Sheet, at note 32.
35 Daley, at note 28.
36G.A. Res. 217A (III), U.N. GAOR, U.N. Doc. A/810, 183d plen. mtg. at 71 (1948). See http://www.un.org/Depts/dhl/landmark/amajor.htm.
37 Laws of War, at note 22.
38 Mark Franchetti, America's Shock Troops Writhe in the Afgan (sic) Viper's Nest, Sunday Times, Mar. 10, 2002, at 30. Available at 2002 WL 15679831.
39 Id.
40 Id.
41 E.g., Paul Haven, As the Fog of War Lifts, Operation Anaconda Comes Into Sharper Focus, The Associated Press, Mar. 18, 2002, available at 2002 WL 16391439; Michael Elliott, "We Put The Capital 'M' In Miracle," Time, Mar. 18, 2002 at 34. Available at 2002 WL 8385923.
42 Commentary at 47-48.
43 Id. at 46-47.
44 Id. at 47-48.
45 Id. at 48.
46 Id.
47 Id.
48 Geneva III, at art. 4(A)(3).
49 Commentary at 62-64.
50 Statement by the Press Secretary, The White House, Regarding the Status of the Detainees in Guantanamo Bay, Feb. 7, 2002, available at 2002 WL 191074.
51 Commentary at 62.
52 Id. at 63.
53 Id.
54 Id.
55 David S. Cloud & Jeanne Cummings, Son of Terrorist Convicted in Plot to Blow Up Five New York Landmarks Captured in Afghanistan, Asian Wall St. J., Dec. 3, 2001, at 12. Available at 2001 WL 29658154.
56 Kevin Johnson & Richard Willing, Bosnian Evidence Makes FBI Case, USA Today, May 1, 2002.
57 Nick Pelham, Yemen May Become New Hideout for al Qaeda, Nat'l Post, Mar. 16, 2002, at A19. Available at 2002 WL 15265167.
58 Jeannine Aversa, U.S. Blocks Assets of Islamic Charity's Operations in Bosnia and Somalia, The Associated Press, Mar. 11, 2002 available at 2002 WL 16388884; see also U.N. Charter art. 2, para 4.
59 See U.N. Charter art. 2, paras. 3-4, available at http://www.un.org/aboutun/charter/index.html.
60 Mackubin T. Owens, Detainees or Prisoners of War?, available at http://www.ashbrook.org/publicat/oped/owens/02/pow.html.
61 Id.
62 Statement by the Press Secretary, The White House, Regarding the Status of the Detainees in Guantanamo Bay, Feb. 7, 2002, available at 2002 WL 191074.
63 Fact Sheet: Status of Detainees at Guantanamo, The White House, Feb. 7, 2002, available at 2002 WL 191071.
64 Id.
65 Id.
66 See Letter from Kenneth Roth, Executive Director of Human Rights Watch, to Condoleezza Rice, National Security Advisor, Jan. 28, 2002, available at http://hrw.org/press/2002/01/us012802-ltr.htm
67 Fact Sheet: Status of Detainees at Guantanamo, The White House, Feb. 7, 2002, available at 2002 WL 191071; see Geneva III, see note 2 at art. 60 (monthly advance in pay), arts. 63-66 (accounts), art. 72 (scientific equipment, "musical instruments, sports outfits and materials allowing prisoners of war to pursue their studies or their cultural activities"), and art. 28 (canteens).
68 Statement by the Press Secretary, The White House, Regarding the Status of the Detainees in Guantanamo Bay, Feb. 7, 2002, available at 2002 WL 191074.
69 Geneva III, supra note 2 at art. 118.
70 Id.
71Id.
72President George W. Bush, State of the Union Address (Jan. 29, 2002). http://www.whitehouse.gov/news/releases/2002/01/20020129-11.html.
73 United States of America v. John Phillip Walker Lindh, 198 F.Supp.2d 739 (E.D. Va. 2002).
74 United States of America v. Zacarias Moussaoui, No. 01-CR-455-A (E.D. Va. 2002). 2002 U.S. Dist. LEXIS 17587.
75 See Philip Shenon & Neil A. Lewis, A Nation Challenged: The 20th Hijacker; France Warns U.S. Not to Seek Death for Terror Suspect, New York Times, Mar. 28, 2002 at A14.
76 See LaGrand v. Stewart, 133 F.3d 1253, 1259-65 (9th Cir. 1998).
77 Shenon, at note 75.
78 Id.
79 See Statute of the International Criminal Tribunal for the Former Yugoslavia, U.N. Doc. S/RES/1166 (1998), which amended U.N.S.C. R/827 (1993) available at http://www1.umn.edu/humanrts/resolutions/SC98/1166SC98.html.
80 See Statute of the International Criminal Tribunal for Rwanda, U.N. SCOR, 3454rd mtg., S/RES/955 (1994) (Annex), 33 I.L.M. 1598.
81 See Rome Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9, 37 I.L.M. 999 (1998) (adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on July 17, 1998).
82 Id. at art. 126.
83 Id.
84 Statement by the Press Secretary, The White House, Press Briefing by Ari Fleischer, May 7, 2002, available at 2002 WL 864290.
85 Ultra Vires, Nat'l Post, May 7, 2002 at A21. Available at 2002 WL 19617130.
86 American Service Members' Protection Act of 2000, S. 2726, 106th Cong., § 4, (2000).
87 See note 85.
88 See S. 2726, 106th Cong. at § 2(6).
89 See note 85.
90 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001). Available at 2001 WL 1435652.
91 Fact Sheet: Department of Defense Order on Military Commissions, Mar. 21, 2002, available at http://www.defenselink.mil/news/Mar2002/d20020321fact.pdf.
92 See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945, 58 Stat. 1544, 82 U.N.T.S. 279.
93 Fact Sheet: Department of Defense Order on Military Commissions, Mar. 21, 2002, available at http://www.defenselink.mil/news/Mar2002/d20020321fact.pdf.
94 Id.
95 Id.
96 Id.
97 Id.
98 William Safire, Military Tribunals Modified, New York Times, March 21, 2002, at A37.
JOURNAL OF THE MISSOURI BAR
Volume 58 - No. 6 - November-December 2002