Order Code RL31367
CRS Report for Congress
Received through the CRS Web
Treatment of “Battlefield Detainees”
in the War on Terrorism
Updated September 17, 2003
Jennifer Elsea
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Treatment of ‘Battlefield Detainees’
in the War on Terrorism
Summary
After earlier criticism from human rights organizations and many foreign
governments regarding the determination that the Geneva Conventions of 1949 do
not apply to the detainees held in Cuba, President Bush shifted position with an
announcement that Taliban fighters are covered by the 1949 Geneva Conventions,
while Al Qaeda fighters are not. Taliban fighters are not being treated as prisoners
of war (POW), however, because they reportedly fail to meet international standards
as lawful combatants The Bush Administration has deemed all of the detainees to
be "unlawful combatants," who may, according to Administration officials, be held
indefinitely without trial or even despite their eventual acquittal by a military
tribunal. Six of the Detainees have been designated as subject to the President’s
Military Order of Nov. 13, 2001, making them eligible for trial by military
commission, although none has yet been charged.
While earlier reports that the detainees were being treated inhumanely appear
to be unfounded, some allied countries and human rights organizations are criticizing
the President’s decision as relying on an inaccurate interpretation of the Geneva
Convention for the Treatment of Prisoners of War (GPW).
The U.N. High
Commissioner on Human Rights (UNHCR) and some human rights organizations
argue that all combatants captured on the battlefield are entitled to be treated as
POWs until an independent tribunal has determined otherwise.
The Geneva Conventions of 1949 create a comprehensive legal regime for the
treatment of detainees in an armed conflict. Members of a regular armed force and
certain others, including militias and volunteer corps serving as part of the armed
forces, are entitled to specific privileges as POWs. Members of volunteer corps,
militias, and organized resistence forces that are not part of the armed services of a
party to the conflict are entitled to POW status if they meet four criteria specified in
the treaty. Groups that do not meet the standards are not entitled to POW status, and
their members who commit belligerent acts may be treated as civilians under the
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC).
These “unprivileged” or “unlawful combatants” are not accorded immunity for their
hostile acts.
This report provides an overview of the law of war and the historical treatment
of wartime detainees, in particular the United States’ practice for determining their
status, and describes how the detainees’ status might affect their rights and treatment.
The report also reviews the current status of petitions for habeas corpus filed on
behalf of detainees held at Guantánamo Bay Naval Station. The report concludes
with a discussion of Congress’ role and legislative proposals related to detention in
connection with the war against terrorism, including H.R. 1290, H.R. 1029 and title
I, subtitle C of S. 22.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Law of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Characterizing the Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Authority to Detain during War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Prisoners of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Civilian Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Unlawful Belligerents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Interpretation of GPW Article 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
GPW Art. 4A(1): Does Al Qaeda Form “Part of” the Armed Forces
of a Party to the Conflict? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
GPW Art. 4A(2): Does Al Qaeda “Belong to” a Party to the
Conflict? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
The Four Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Determining Status under GPW Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Treatment of Detainees at Guantánamo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Interrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Trial and Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
POWs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Unlawful Belligerents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Security Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Repatriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Right to Redress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Congress’ Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

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Treatment of “Battlefield Detainees” in the
War on Terrorism
Background
After earlier criticism from human rights organizations and many foreign
governments regarding the determination that the Geneva Conventions of 1949 do
not apply to the detainees held in Cuba,1 President Bush shifted position with an
announcement that Taliban fighters are covered by the 1949 Geneva Conventions,
while Al Qaeda fighters are not.2 Taliban fighters are not, however, treated as
prisoners of war (POW) because they reportedly fail to meet international standards
as lawful combatants.3 The President has determined that Al Qaeda remains outside
the Geneva Conventions because it is not a state and not a party to the treaty.4 The
Bush Administration has deemed all of the detainees to be “unlawful combatants,”
who may, according to Administration officials, be held indefinitely without trial or
even despite their eventual acquittal by a military tribunal. The decision with respect
to the application of the Geneva Conventions has thus not affected the treatment of
any of the detainees held at the U.S. Naval Base at Guantánamo Bay, Cuba, and has
not quelled the criticism. The Secretary of Defense has reaffirmed that detainees will
continue to be treated humanely. Six of the detainees have been determined by the
President to be subject to his military order of November 13, 2001, making them
eligible for trial by military commission.5
Although more than 60 detainees have been released from the detention
facilities at the U.S. Naval Station in Guantánamo Bay, Cuba, and some detainees are
1See Brian Knowlton, Powell and Bush Split On Detainees' Status Applicability of Geneva
Conventions at Issue, INT'L HERALD TRIB, Jan. 28, 2002, at 1, available at 2002 WL
2884164; Tom Shanker and Katharine Q. Seelye, Behind-the-Scenes Clash Led Bush to
Reverse Himself on Geneva Conventions, N.Y. TIMES, Feb. 22, 2002, available at 2002 WL-
NYT 0205300064 (quoting unnamed senior official that Britain and France had warned they
might not turn over suspects captured by their troops unless the Conventions are observed).
2See Mike Allen and John Mintz, Bush Makes Decision on Detainees, WASH. POST, Feb. 8,
2002, at A1.
3See Press Conference, Department of Defense, Secretary Rumsfeld and General Myers,
Feb.
8,
2002,
available
at
[http://www.defenselink.mil/news/Feb2002/
t02082002_t0208sd.html].
4See Fact Sheet, White House Press Office, Feb. 7, 2002, available at
[http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html].
5See Press Release, Department of Defense, President Determines Enemy Combatants
S u b j e c t
t o
H i s
M i l i t a r y
O r d e r
( J u l y
3 ,
2 0 0 3 ) ,
a v a i l a b l e
a t
http://www.defenselink.mil/releases/2003/nr20030703-0173.html.

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being rewarded for cooperation with better living conditions, the status and treatment
of detainees who remain in custody continue to be a source of contention with human
rights groups. Some allied countries and human rights organizations are criticizing
the President’s decision as contrary to international law, arguing it relies on an
inaccurate interpretation of the Geneva Convention for the Treatment of Prisoners
of War (GPW).6 The U.N. High Commissioner on Human Rights (UNHCR) and
some human rights organizations argue that all combatants captured on the battlefield
are entitled to be treated as POWs until an independent tribunal has determined
otherwise.7 The U.N. Commission on Human Rights Working Group on Arbitrary
Detention deemed that the U.S. detention of “enemy combatants,”without
determining their status in accordance with international law, may be arbitrary.8 The
European Parliament asked the United Nations to pass a resolution requesting the
establishment of a tribunal to clarify the detainees’ legal status;9 however, no action
has been taken. The Parliamentary Assembly of the European Council adopted a
resolution in June, 2003 calling the detention of persons detained in Guantánamo
Bay, Afghanistan, and elsewhere “unlawful,” noting in particular its concern that
children are among the detainees.10 The Organization of American States’ Inter-
6 The Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949,
6 U.S.T. 3317 (hereinafter “GPW”).
7See Red Cross Differs on POWs, DETROIT FREE PRESS, Feb. 9, 2002, at 6A (reporting
International Committee of the Red Cross (ICRC) statement criticizing Bush decision);
Afghan Human Rights is Cause for concern, Warns Top UN Official, AGENCE FRANCE-
PRESSE, Feb. 12, 2002, available at 2002 WL 2338501 (reporting (former) UNHCR Chief
Mary Robinson agreed with legal position of ICRC regarding Geneva Conventions’
applicability to detainees); Letter from Kenneth Roth, Executive Director Human Rights
Watch, to Condoleezza Rice, National Security Advisor (Jan. 28, 2002), available at
http://hrw.org/press/2002/01/us012802-ltr.htm.
8See Civil and Political Rights, Including the Question of Torture and Detention, Report of
the Working Group on Arbitrary Detention, U.N. Commission on Human Rights, 59th Sess.,
Agenda Item 11(a), at 19 et seq., E/CN.4/2003/8 (2002), available at http://www.unhchr.ch
(last visited Sep. 15, 2003).
The Working Group concludes from the above that, so long as a “competent tribunal” in
the meaning of [article 5, paragraph 2, of the third Geneva Convention], has not issued
a ruling on the contested issue, detainees enjoy “the protection of the … Convention”, as
provided in paragraph 2, whence it may be argued that they enjoy firstly the protection
afforded by its article 13 (“Prisoners of war must at all times be humanely treated”), and
secondly the right to have the lawfulness of their detention reviewed and the right to a fair
trial provided under articles 105 and 106 of that Convention (notification of charges,
assistance of counsel, interpretation, etc.), so that the absence of such rights may render
the detention of the prisoners arbitrary.
Id. at 20-21.
Arbitrary detention may be considered a violation of customary international law. See
Jordan J. Paust, Judicial Power to Determine the Status and Rights of Persons Detained
Without Trial, 44 HARV. INT’L L.J.503, 506 n.6 (citing numerous international treaties and
decisions).
9See European Parliament Resolution on the Detainees in Guantanamo Bay, Doc.
P5_TAPROV(2002)0066 (Feb. 7, 2002), available at http://www.europarl.eu.int/
meetdocs/delegations/ usam/20020219/004EN.pdf
10Parliamentary Assembly of the Council of Europe, Rights of Persons Held in the Custody
(continued...)

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American Commission adopted precautionary measures with respect to the United
States, urging it to take “urgent measures” to establish hearings to determine the legal
status of the detainees.11 The United States has declined to comply, answering that
the Commission has no jurisdiction to enforce the Geneva Conventions, and
reiterating the Administration’s position that, there being no doubt as to the status of
the detainees, individual legal procedures to determine the status of the detainees are
unnecessary.12
The U.S. Justice Department reportedly set up a special legal team headed by
the Solicitor-General to defend its policy of holding detainees at Guantánamo Bay
against court challenges brought on their behalf.13 One petition for habeas corpus
was rejected by a district court in California on the grounds that the petitioner – a
coalition of clergy and human rights lawyers – did not have standing to bring the
action on behalf of all of the prisoners.14 The district court also held that no federal
court would have jurisdiction over the detainees in Cuba, but the 9th Circuit vacated
that portion of the decision on the basis that it exceeded the scope of allowable
review.15 However, another district court in the 9th Circuit ruled that the privilege of
litigation does not extend to aliens in military custody outside of United States
territory, regardless of whether such aliens were “enemy aliens” captured during a
formally declared war, were charged, or were tried by military commission.16
Several petitions were filed in the District of Columbia against President Bush
and Secretary of Defense Rumsfeld on behalf of the detainees, one by the parents of
three of the detainees – an Australian national and two from the United Kingdom.17
The court declined jurisdiction over the consolidated case and dismissed it with
10(...continued)
of the United States in Afghanistan or Guantánamo Bay, Resolution 1340 (June 27, 2003),
available at http://assembly.coe.int/documents/adoptedText/ta03/ERES1340.htm (last
visited Sep. 15, 2003)[hereinafter “Council of Europe”].
11See IACHR, Precautionary Measures Requested in Respect of the Detainees in
Guantanamo Bay, Cuba (United States), March 12, 2002, 41 I.L.M. 532 (2002);Jesse
Bravin, Panel Says U.S. Policy on Detainees in Cuba Breaks International Law, WALL ST.
J., Mar. 14, 2002, at B2.
12See Response of the United States to Request for Precautionary Measures – Detainees in
Guantanamo Bay, Cuba, 41 I.L.M. 1015 (2002); Frank Davies U.S. Stands Firm on Status
of Detainees at Cuba Base, PHILA. INQUIRER, Apr. 14, 2002, available at 2002 WL
19583567.
13See John Mintz, Guantanamo Could Be Terrorist Penal Colony; U.S. Preparing New
Guidelines for Tribunals, SUN-SENTINEL (Ft. Lauderdale Fla.), Feb 13, 2002, at 19A,
available at 2002 WL 2946820.
14Coalition of Clergy v. Bush, 189 F.Supp.2d, 1036 (C.D.Cal.2002).
15See Coalition of Clergy v. Bush, 310 F.3d 1153, 1165 (9th Cir. 2002), cert. denied 123
S.Ct. 2073 (2003)(finding that once the district court had determined that the petitioners
lacked standing to bring petition on behalf of detainees, the court had no jurisdiction to
determine habeas rights of persons not before it.)
16Gherebi v. Bush, 262 F.Supp.2d 1064 (C.D.Cal.,2003).
17Rasul v. Bush, 215 F.Supp.2d 55 (D.D.C. 2002).

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prejudice based on the Supreme Court decision in Johnson v. Eisentrager,18 holding
that enemy aliens have no right to have their cases heard in U.S. courts if they are not
being held on U.S. soil. The D.C. Circuit affirmed,19 and the plaintiffs have filed a
petition for certiorari. The Supreme Court has not announced whether it will hear the
case.
The Geneva Conventions of 1949 create a comprehensive legal regime for the
treatment of detainees in an armed conflict.20 Members of a regular armed force and
certain others, including militias and volunteer corps serving as part of the armed
forces, are entitled to specific privileges as POWs. Members of volunteer corps,
militias, and organized resistence forces that are not part of the armed services of a
party to the conflict are entitled to POW status if the organization (a) is commanded
by a person responsible for his subordinates, (b) uses a fixed distinctive sign
recognizable at a distance, (c) carries arms openly, and (d) conducts its operations in
accordance with the laws of war.21 Groups that do not meet the standards are not
entitled to POW status, and their members who commit belligerent acts may be
treated as civilians under the Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (GC).22 These “unprivileged” or “unlawful combatants” may
be punished for acts of violence for which legitimate combatants could not be
punished.23 Some have argued that there is implied in the Geneva Conventions a
18339 U.S. 763 (1950).
19See Al Odah v. U.S., 321 F.3d 1134, (D.C.Cir. 2003).
20Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, opened for signature Aug. 12, 1949, 6 U.S.T. 3114, T.I.A.S. No.
3362, 75 U.N.T.S. 31 (entered into force Oct. 21, 1950); Geneva Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, opened for signature Aug. 12, 1949, 6 U.S.T. 3217, T.I.A.S. No. 3363, 75
U.N.T.S. 85 (entered into force Oct. 21, 1950); Geneva Convention Relative to the
Treatment of Prisoners of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S.
No. 3364, 75 U.N.T.S. 135 (entered into force Oct. 21, 1950); Geneva Convention Relative
to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949,
6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 (entered into force Oct. 21, 1950)
[hereinafter referred to collectively as the “1949 Geneva Conventions” or “Conventions”].
21GPW art. 4A(2).
22Geneva Convention 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. 287 (hereinafter “GC”). See also
Department of the Army, FM 27-10, The Law of Land Warfare (hereinafter “FM 27-10”)
para. 78 (1956) states:
If a person is determined by a competent tribunal, acting in conformity with Article 5,
GPW, not to fall within any of the categories listed in Article 4, GPW, he is not entitled
to be treated as a prisoner of war. He is, however, a "protected person" within the meaning
of Article 4, GC. (internal citations omitted).
The Bush Administration does not appear to consider the detainees to be protected as
civilians under the GC, however. See George H. Aldrich, The Taliban, Al Qaeda, and the
Determination of Illegal Combatants, 96 AM. J. INT’L L. 891, 892 (2002)(noting the lack of
mention on the behalf of the Administration of the applicability of the GC).
23See Maj. Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerrillas, and
(continued...)

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third category comprised of combatants from militias that do not qualify for POW
status but also fall outside of the protection for civilians, who may be lawful in the
sense that they do not incur criminal liability for engaging in otherwise lawful
combat24 The Bush Administration takes the position that the Geneva Conventions
do not provide any protection to “unlawful combatants,” although the United States
treats all such detainees in a manner consistent with the Geneva Conventions
protections for prisoners of war.
The status of the detainees may affect their treatment in several ways. The
Administration has argued that granting the detainees POW status will interfere with
efforts to interrogate them, which would in turn hamper its efforts to thwart further
attacks. Denying POW status may allow the Army to retain more stringent security
measures, possibly including close confinement of detainees in prison-like cells. The
Administration also argued that the detainees, if granted POW status, would have to
be repatriated when hostilities in Afghanistan cease, freeing them to commit more
terrorist acts. Finally, POWs accused of crimes are entitled to trial by court-martial
or regular civil court.
Denying POW status would appear to leave open the
possibility that the detainees may be tried by military commissions for violations of
the law of war.25
The White House has not issued a full legal opinion to clarify its application of
the GPW to the Taliban, whose members would arguably seem to be eligible for
POW status as members of the armed forces of Afghanistan under a plain reading of
GPW art. 4A(1).26 It has been suggested that the four criteria in GPW art. 4A(2)
23(...continued)
Saboteurs,28 BRIT. Y.B. INT’L L. 323,343 (1951) (explaining that belligerency is not
violative of international law, but is merely unprotected by it).
24See W. Thomas Mallison and Sally V. Mallison, The Juridical Status of Irregular
Combatants under the International Law of Armed Conflict, 9 CASE W. RES. J. INT’L L. 39,
43 (1977) (suggesting a category of “other combatants, such as spies, saboteurs, and the
irregulars who do not meet the applicable criteria of the law of armed conflict [who are]
lawful combatants in particular contexts, but ... not entitled to privileged treatment of POWs
upon capture”).
25Military Order, November 13, 2001 Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism §1(a), 66 Fed. Reg. 57,833 (Nov. 16, 2001). The
M.O. also appears to permit the detention without trial of persons determined to be subject
to it, but this authority has not been invoked with respect to any of the detainees. See
Terrorism and the Law of War: Trying Terrorists as War Criminals before Military
Commissions, CRS Report RL31191.
26Ambassador-at-Large for War Crimes Issues Pierre-Richard Prosper told a conference in
London:
In reviewing [the] new challenge [of the war against terrorism], we have
concluded that the Geneva Conventions do apply ... to the Taliban leaders who
sponsored terrorism. But, a careful analysis through the lens of the Geneva
Convention leads us to the conclusion that the Taliban detainees do not meet the
legal criteria under Article 4 of the convention which would have entitled them
to POW status. They are not under a responsible command. They do not conduct
their operations in accordance with the laws and customs of war. They do not have
(continued...)

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apply to regular armed forces as a matter of customary international law; however,
others point out that state practice does not appear to support the conclusion that the
armed forces of states have been categorically denied eligibility for POW status on
the basis that the army did not comply completely with the law of war. Indeed, U.S.
practice has been to accord POW status generously to irregulars,27 to support such
status for irregular forces at times,28 and to raise objections whenever an adversary
has sought to deny U.S. personnel POW status based on a general accusation that the
U.S. forces were not in compliance with some aspect of the law of war.29 The
Administration has also asserted that the Geneva Conventions are obsolete when it
comes to dealing with terrorists,30 but that it will continue to follow the treaties’
principles.
With respect to Al Qaeda fighters, the Administration has stated it is not
applying the Geneva Conventions because Al Qaeda is a criminal organization and
not a state party to the Geneva Conventions.31 Opponents of that position argue that
the Geneva Conventions do not apply solely to the armed forces of state parties to the
Conventions; that the treaties also cover non-state belligerents, who have not been
allowed to become parties to the Conventions. Partisan and other irregular groups
can qualify for POW status if they otherwise meet the criteria in GPW art. 4. Non-
states as well as states that are not parties to the Conventions remain bound by the
provisions that have attained opinio juris status,32 and may also accept the obligations
of the Conventions in return for more favorable treatment. Common article 3 of the
26(...continued)
a fixed distinctive sign recognizable from a distance. And they do not carry their arms
openly. Their conduct and history of attacking civilian populations, disregarding human
life and conventional norms, and promoting barbaric philosophies represents firm proof
of their denied status. But regardless of their inhumanity, they too have the right to be
treated humanely.
See Status and Treatment of Taliban and al-Qaida Detainees, remarks of Ambassador
Prosper, Remarks at Chatham House, London, United Kingdom, Feb. 20, 2002, available
at http://www.state.gov/s/wci/rm/2002/8491.htm[last visited Sep. 16, 2003].
27See, e.g., discussion about procedures adopted during Vietnam conflict, infra note 169 et
seq.
28See HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 40-41
(1979) (noting that during WWII, the United States claimed the Philippine resistance
movement as an adjunct of its own armed forces).
29See D. SCHINDLER & J. TOMAN, THE LAWS OF ARMED CONFLICT 563-92 (1981)
(reporting U.S. and allies’ objections to Communist countries’ reservations to GPW, which
resulted in the failure of U.S. airmen to qualify for POW status in Korea and Vietnam
conflicts on the basis they were “war criminals”).
30See Rumsfeld Press Conference, supra note 3.
31See Press Release, White House, Status of Detainees at Guantánamo (Feb. 7, 2002)
(available at [http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html].
32See Theodore Meron, The Geneva Conventions as Customary International Law, 81 AM.
J. INT’L L 348, 350 (1987).

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Geneva Conventions provides minimum protection during non-international conflicts
for all captives.33
Another consideration may be that Al Qaeda members would retain their status
as citizens of their states of nationality. The status and treatment of prisoners of war
generally does not depend on their nationality.34 However, civilians would not
ordinarily derive their status under the Conventions from membership in a private
organization. Under this view, the relevant issue would be whether they are citizens
of states that are parties to the Conventions and whether those states have normal
diplomatic relations with the United States.35 The President’s decision regarding Al
Qaeda’s status suggests that he may consider Al Qaeda to have sufficient
“international personality” to be a valid party to the conflict and subject to the law
of war, such that its members’ status may be determined by their association with it
rather than their nationality. On the other hand, that would seem to imply some
recognition of Al Qaeda as a legitimate entity.
The Law of War
The law of war, also known as the law of armed conflict or humanitarian law,
is a subset of international law that has evolved through centuries of efforts to
mitigate the harmful effects of war. Recognizing the impossibility of eliminating
warfare all together, nations in essence have agreed to abide by rules limiting their
conduct in war, in return for the enemy’s agreement to abide by the same rules.36
There are two branches of the law of war: The older of the two branches, known as
“Hague law” after the Hague Conventions of 1899 and 1907, prescribes the rules of
engagement during combat and is based on the key principles of military necessity
33 The 1949 Geneva Conventions share several types of common provisions. The first three
articles of each Convention are identical. Common Article 3, note 48, infra, has been
described as “a convention within a convention” to provide a general formula covering
respect for intrinsic human values that would always be in force, without regard to the
characterization the parties to a conflict might give it. See JEAN PICTET, HUMANITARIAN
LAW AND THE PROTECTION OF WAR VICTIMS 32 (1975). Originally a compromise between
those who wanted to extend the Convention’s protection to all insurgents and rebels and
those who wanted to limit it to wars between states, Common Article 3 is now considered
to have attained the status of customary international law.
See KRIANGSAK
KITTICHAISAREE, INTERNATIONAL CRIMINAL LAW 188 (2001).
34See In re Territo, 156 F.2d 142 (9th Cir. 1946).
35See GC art. 4, which states, in part:
Persons protected by the Convention are those who, at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the
conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it. Nationals
of a neutral State who find themselves in the territory of a belligerent State, and nationals of
a co-belligerent State, shall not be regarded as protected persons while the State of which
they are nationals has normal diplomatic representation in the State in whose hands they are.
36See Mallison and Mallison, supra note 24, at 41(noting the law of war is dependent for its
observance on the common interests of participants).

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and proportionality.37 The humanitarian side of the law, known as “Geneva law,”
emphasizes human rights and responsibilities, including the humane and just
treatment of prisoners.
The legality and proper justification for resorting to war in the first place are a
separate legal regime.
A principal distinction exists between the law of conduct
during war – jus in bello – and international law regulating when going to war is
justified – jus ad bellum.38 Parties to an armed conflict retain the same rights and
obligations without regard to which party initiated hostilities and whether that
conduct is justifiable under international law.39
Otherwise, each party would
routinely regard its enemy as unlawfully engaging in war and would thus feel
justified in taking whatever measures might be seen as necessary to accomplish its
defeat.40
If the law of war is to have any effect in restraining the conduct of belligerents,
there must be both inducements for adherence to it and punishment for failure to
adhere.41 One incentive for parties to adhere to the rules is the promise that their
members will receive humane treatment and some legal privileges at the hands of the
enemy if they are captured. Reciprocity serves as a primary motivator, but is not an
absolute requirement for adherence;42 a derogation from the rules by one party does
not excuse breaches by another,43 although reprisal in proportion may be
permissible.44 Were this not the case, any deviation from the letter of the law could
37See PICTET, supra note 33, at 31 (describing the principle that “belligerents shall not
inflict on their adversaries harm out of proportion to the object of warfare, which is to
destroy or weaken the military strength of the enemy”).
38See DOCUMENTS ON THE LAWS OF WAR 1 (Adam Roberts and Richard Guelff, eds.
2000)(hereinafter “DOCUMENTS”).
39See CIVILIANS IN WAR 16-17 (Simon Chesterman, ed. 2001) (explaining that theories of
“just war” were to be kept separate from jus in bello in part to make it easier to maintain
legal parity between parties, holding both sides to same rules of conduct).
40See HILAIRE MCCOUBREY, 2 INTERNATIONAL HUMANITARIAN LAW 2 (1998) (predicting
that the mixing of jus in bello and jus ad bellum “...would represent a renaissance of the very
worst features of medieval 'just war' theory.”).
41See Mallison and Mallison, supra note 24, at 41 (noting that the central technique for
enforcing the law of war has been a system of interrelated rights and duties).
42See PICTET, supra note33, at 21 (1975):
It is generally admitted that the non-execution of a treaty by one party may ultimately release
the other party from its obligations, or justify the annulment of the treaty, like a contract
under municipal laws. This, however, would not apply to the Geneva Conventions: whatever
the circumstances, they remain valid and are not subject to reciprocity. Indeed, the mind
absolutely rejects the idea that a belligerent should, for instance, deliberately ill-treat or kill
prisoners because the adversary has been guilty of such crimes.
43 But see LEVIE, supra note 28, at 31(stating that commentators appear to agree that “few
states can actually be expected to continue to apply the provisions of the [GPW] in the
absence of reciprocity despite the provision to that effect...”).
44 See THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 204 (Dieter Fleck,
(continued...)

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be invoked to justify wholesale abandonment of the law of war, causing the conflict
to degenerate into the kind of barbarity the law of war aims to mitigate. Reprisals
may not be taken against POWs or other protected persons.45
Some experts argue that in keeping with the purpose of humanitarian law, that
is, to protect civilians and reduce the needless suffering of combatants, humanitarian
law should be interpreted as broadly as possible in favor of individual rights and
protections, to include rights of irregular combatants who comply to the extent
possible with the law of war. Under this view, no one falls completely outside the
protection of the Geneva Conventions during an armed conflict. Others would
adhere rigidly to their interpretation of the letter of the law, denying rights to irregular
combatants in order to deter the formation of resistance movements and to avoid
legitimizing their belligerent acts. Proponents of this view argue the treatment of
detainees not clearly covered by the Conventions is entirely at the discretion of the
detaining power. However, states dealing with insurgents and armed resistance
groups have typically denied that a state of war exists, treating rebels as common
criminals and trying them in civil court for any belligerent acts.
Characterizing the Conflict
In order to determine the legal status of the detainees, it is first necessary to
determine whether an armed conflict exists, and if so, whether that conflict is
“international” or “non-international.” The type of armed conflict depends upon the
status of the parties to the conflict and the nature of the hostilities. The status and
rights of individuals depend, in turn, on the relationship of those individuals to the
parties to the conflict. It may also become important to determine the temporal and
geographical boundaries of the armed conflict – for the most part, the Geneva
Conventions would not apply to conduct that occurred prior to the onset or after the
end of the armed conflict, nor would it apply to conduct occurring on the territory of
a non-party to the conflict. Whether the territory on which the punishable conduct
occurred is considered “occupied” or “partially occupied” may also be relevant to
determining the status of detainees and the law applicable to them.46
The Geneva Conventions apply in full to “all cases of declared war or of any
other armed conflict which may arise between two or more of the High Contracting
44(...continued)
ed. 1995)(hereinafter “HANDBOOK”)(defining reprisals as “coercive measures which would
normally be contrary to international law but which are taken in retaliation by one party to
a conflict in order to stop the adversary from violating international law.”).
45See id. at 206.
46See GC sec. III; but see W.T. Mallison & R.A. Jabri, The Juridical Characteristics of
Belligerent Occupation and the Resort to Resistance by the Civilian Population: Doctrinal
Development and Continuity, 42 GEO. WASH. L. REV. 185, 189 (1974) (arguing that the
1949 Geneva Conventions removed the traditional distinction between “invasion” and
“belligerent occupation” as far as the treatment of civilians is concerned).

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Parties, even if the state of war is not recognized by one of them,”47 or in “any cases
of partial or total occupation of the territory of a High Contracting Party.” Common
Article 3 of the Geneva Conventions applies to internal hostilities serious enough to
amount to an armed conflict,48 although the parties are encouraged to adopt
voluntarily the remaining provisions with respect to each other. In the case of
sporadic violence involving unorganized groups and uprisings, the law of war is not
implicated, although the law of basic human rights continues to apply.
The classification of an armed conflict presents few difficulties in the case of
a declared war between two states. Such a conflict would clearly qualify as an
international armed conflict to which the Geneva Conventions would apply in their
entirety. Such conflicts have also become rare. The term “internal armed conflict”
generally describes a civil war taking place within the borders of a state, featuring an
organized rebel force capable of controlling at least some territory. Internal conflicts
may be more difficult to classify as such because states frequently deny that a series
of violent acts amounts to an armed conflict.49 Classifying a conflict in which a
foreign state intervenes in an internal armed conflict creates an even more complex
puzzle. Some theorists consider an armed conflict to remain internal where a foreign
state intervenes on behalf of a legitimate government to put down an insurgency,
whereas foreign intervention on behalf of a rebel movement would “internationalize”
47GPW art. 2; GC art. 2.
48Common Article 3 of the Geneva Conventions of 1949 states:
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, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who
have laid down their arms and those placed hors de combat by sickness, wounds, detention,
or any other cause, shall in all circumstances be treated humanely, without any adverse
distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar
criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) 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.
2. The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may
offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to
the conflict.
49See HANDBOOK, supra note 44, at 23.

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the armed conflict.50 Under this view, the war in Afghanistan was an internal conflict
between the Taliban and Northern Alliance troops until U.S. forces intervened, at
which point the conflict became international.51 When the Taliban ceded control of
the government, the conflict may have reverted to an internal conflict, because U.S.
forces then became aligned with the government of the state. Others view virtually
any hostilities causing international repercussions to be international for the purposes
of the Geneva Conventions.52
According to the official commentary of the International Committee of the Red
Cross (ICRC),53 the conditions for an international war are satisfied whenever any
difference arises leading to the use of armed force between the militaries of two
states.54 Both the United States and Afghanistan are signatories to the four Geneva
Conventions of 1949. If the Taliban was, at the onset of the conflict, the government
of Afghanistan and its soldiers were the regular armed forces, it would appear that
the present conflict meets the Geneva Conventions’ definition of an international
armed conflict. However, only three states ever recognized the Taliban as the
legitimate government of Afghanistan. While it is not necessary for the governments
of states engaging in hostilities to recognize each other,55 the rules are less clear
where virtually no country recognizes a government.
Because the use of force by private persons rather than organs of a state has not
traditionally constituted an “act of war,”56 it is arguable that refusing to recognize the
Taliban as a de facto government of a state would preclude the United States from
prosecuting the September 11 terrorist attacks as “war crimes.” After all, it has been
suggested that international terrorism might be considered to amount to armed
conflict for the purposes of the law of war only if a foreign government is involved.57
50See John Embry Parkerson, Jr., United States Compliance with Humanitarian Law
Respecting Civilians During Operation Just Cause, 133 MIL. L. REV. 31, 41-42 (1991)
(applying analysis to determine whether U.S. invasion of Panama on behalf of Endara
government made conflict “international” for the purposes of GPW).
51See Do the Laws of War Apply to the War on Terror?, Public Meeting of the American
Society of International Law, Feb. 13, 2002 (hereinafter ASIL Meeting) (comments of Prof.
Robert Goldman) (audio available at [http://www.sais-jhu.edu/mediastream/intlaw.ram]).
52See Maj. Geoffrey S. Corn and Maj. Michael Smidt, “To Be or Not to Be, That is the
Question”: Contemporary Military Operations and the Status of Captured Personnel,
ARMY LAW. June 1999 (citing interview with DoD law of war expert Hayes Parks, who
advocates a purely de facto standard, without regard to political factors).
53See INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE GENEVA
CONVENTIONS, (J. Pictet, ed., 1960) (hereinafter "ICRC Commentary"). The ICRC was
instrumental in drafting the Geneva Conventions and continues to act as a “custodian” of
international humanitarian law.
54See id. at 23.
55GPW art. 4A(3).
56HANDBOOK, supra note 44, at 42.
57See LT. COL. RICHARD J. ERICKSON, LEGITIMATE USE OF MILITARY FORCE AGAINST
(continued...)

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The level of state support of terrorism required to incur state responsibility under
international law is a matter of debate.58 Denying that any state is involved in the
terrorist acts that precipitated the armed conflict could call into question the United
States’ treatment of those attacks as violations of the law of war.
Some observers cite additional policy grounds for treating the armed conflict as
international. To treat it as an internal conflict could have implications for U.S. and
allied troops. No one would be entitled to POW status or “protected person” status
under the third and fourth Geneva Conventions, although Common Article 3 would
remain in force for all parties. U.S. and coalition soldiers may be placed at risk of
capture in Afghanistan or elsewhere depending on how the conflict proceeds. The
President’s decision to apply the Geneva Conventions to the Taliban but deny their
application to Al Qaeda as a non-party may be an implicit recognition that the armed
conflict is an international one, at least with respect to the Taliban.
It is also possible to view the conflict with the Taliban as separate from the
conflict with Al Qaeda.59 Al Qaeda would have to qualify as a belligerent in its own
right, however, which most observers argue it does not. Because an armed conflict
can only exist where (at least) two belligerents are in opposition, the present
hostilities between the United States and Al Qaeda would not seem to qualify as an
armed conflict under international law.60 The difficulty under this view is that it may
either lend an air of legitimacy to Al Qaeda or cast doubt on the legality of the United
States’ military actions against Al Qaeda.61
57(...continued)
STATE-SPONSORED INTERNATIONAL TERRORISM 66-67 (1989) (arguing that state sponsored
or state supported terrorist organizations may have status under international law, while
terrorist organizations not recognized as international entities might best be dealt with as
criminal matters).
58See Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force,
18 WIS. INT'LL.J. 145, 148 (2000) (citing General Assembly Resolutions 2131 that states have
a “duty to refrain from organizing, instigating, assisting, or participating in acts of civil strife
or terrorist acts in another state or acquiescing in organized activities within its territory....”).
59See Aldrich, supra note 22, at 893 (viewing the decision to treat the conflict with Al Qaeda
as a separate conflict to be correct).
60See Jordan J. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 MICH.
J. INT’L L. 1, 8 n.16 (2001)(arguing that Al Qaeda does not fit the criteria for an insurgency);
Aldrich, supra note 22, at 894 (arguing that Al Qaeda is not capable of being party to a
conflict to which the Geneva Conventions or Protocols apply).
61See Jordan Paust, There is No Need to Revise the Laws of War in Light of September 11th,
American Society of International Law Task Force Paper, Nov. 2002, available at
http://www.asil.org/taskforce/paust.pdf (arguing that “[c]ontrary to the assertion of President
Bush, the United States simply could not be at war with bin Laden and Al Qaeda as such,
nor would it be in the overall interest of the United States for the status of war to apply
merely to conflicts between the United States and Al Qaeda”).

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Authority to Detain during War
The treatment of all persons who fall into the hands of the enemy during an
armed conflict depends upon the status of the person as determined under the four
Geneva Conventions of 1949. Parties to an armed conflict have the right to intern
enemy prisoners of war,62 as well as civilians who pose a danger to the security of the
state,63 at least for the duration of hostilities.64 The right to detain enemy combatants
is not based on the supposition that the prisoner is “guilty” as an enemy for any
crimes against the Detaining Power, either as an individual or as an agent of the
opposing state. POWs are detained for security purposes only, to remove those
soldiers from further participation in combat. The detention is not a form of
punishment.65 The Detaining Power may punish enemy soldiers and civilians for
crimes committed prior to their capture as well as during captivity, but only after a
fair trial in accordance with the relevant convention and other applicable international
law. Failure to accord prisoners a fair trial is a grave breach under article 130 of
GPW66 and article 146 of GC.67
62See GPW art. 21:
The Detaining Power may subject prisoners of war to internment. It may impose on them the
obligation of not leaving, beyond certain limits, the camp where they are interned, or if the
said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the
present Convention relative to penal and disciplinary sanctions, prisoners of war may not be
held in close confinement except where necessary to safeguard their health and then only
during the continuation of the circumstances which make such confinement necessary.
63GC art. 42 states:
The internment or placing in assigned residence of protected persons may be ordered only
if the security of the Detaining Power makes it absolutely necessary.
64See GPW art. 21; PICTET, supra note 33, at 47 (“Prisoners will be released and repatriated
as soon as there are no longer any reasons for captivity, that is to say, at the end of active
hostilities.”).
65 See PICTET, supra note 33, at 46.
66GPW art. 130 states:
Grave breaches to which the preceding Article relates shall be those involving any of the
following acts, if committed against persons or property protected by the Convention: wilful
killing, torture or inhuman treatment, including biological experiments, wilfully causing great
suffering or serious injury to body or health, compelling a prisoner of war to serve in the
forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and
regular trial prescribed in this Convention.
67GC Article 147 states:
Grave breaches to which the preceding Article relates shall be those involving any of the
following acts, if committed against persons or property protected by the present Convention:
wilful killing, torture or inhuman treatment, including biological experiments, wilfully
causing great suffering or serious injury to body or health, unlawful deportation or transfer
or unlawful confinement of a protected person, compelling a protected person to serve in the
forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and
regular trial prescribed in the present Convention, taking of hostages and extensive
destruction and appropriation of property, not justified by military necessity and carried out
unlawfully and wantonly.

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Neutral and non-belligerent signatory countries also have an obligation to intern
members of belligerent armed forces under the Geneva Conventions of 1949.68 The
neutral country must treat these prisoners as POWs, except that certain provisions do
not apply, including arts. 8, 10 and 126 (relating to visits by representatives of the
Protecting Power69 or international organization acting in that role), 15 and 30
(maintenance and medical care; in this case costs are to be borne by the belligerent
nations), 58-67 (financial resources) and 92 (penal provisions for unsuccessful
escape).70 There is no express obligation to arrest and detain persons who are not
lawful combatants and are suspected of having participated in hostilities before
crossing a border into neutral territory.
Prisoners of War.
The privileged status of prisoners of war grew from the concept of military
necessity. Declarations of “no quarter” were forbidden because an enemy soldier
who had become hors de combat – incapacitated due to injury, illness, surrender or
capture – no longer posed a danger to combatants. Killing such persons or causing
their needless suffering was considered to serve no valid military purpose, the
objective being the incapacitation rather than the annihilation of enemy.71 The
privilege of being held as a prisoner of war was not extended to brigands, pirates,
looters and pillagers not associated with the uniformed army of any state. Such
persons were considered common criminals acting for personal gain rather than
agents of a state, and they could be summarily shot.72 (Modern rules require a fair
criminal trial).73
The first codified set of rules for the protection of prisoners of war was General
Orders 100 (known as the Lieber Code), adopted by the Union Army during the Civil
War. It covered “[a]ll soldiers of whatever species of arms; all men who belong to
the rising en masse of the hostile country; all those who are attached to the army for
its efficiency, and promote directly the object of war...” as well as “citizens who
accompany an army for whatever purpose, such as sutlers, editors, or reporters of
68GPW art. 4B(2) requires neutral countries to intern persons falling within the provisions
of overall art. 4, that is, who would be entitled to POW status. See LEVIE, supra note 28,
at 69 (noting that predecessor rule during WWII resulted in the internment of more than
100,000 POWs in neutral countries).
69 The Protecting Power (PP) is a classic international-law device by which States engaging
in armed conflict select mutually acceptable neutral nations to serve as their representatives
in communicating with the other belligerent power. See GEOFFREY BEST, WAR AND LAW
SINCE 1945 371 (reprinted 2001). Since 1950, however, PPs have been appointed in only
four instances. See id. at 372. The ICRC generally carries out the responsibilities of the PP
under the Conventions.
70See LEVIE, supra note 28, at 69.
71See DONALD A. WELLS, THE LAWS OF LAND WARFARE 127 (1992).
72See id.
73See Hague Convention No. IV Respecting the Laws and Customs of War on Land art. 30,
Oct. 18, 1907, 36 Stat. 2277, 205 Consol. T.S. 277.

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journals, or contractors, if captured ....”74 It was forbidden to declare that every
member of a legitimate levy en masse – a spontaneous uprising of citizens in
opposition to an armed invasion – would be treated as a bandit, but once the invading
army had established itself as occupying force, citizens could not lawfully rise up
against it.75
Later conventions adopted the Lieber Code for international application and
clarified the rules, generally expanding their coverage and increasing their
protections.76 The United States Army Field Manual (FM) 27-10, The Law of Land
Warfare is the main source for the Army’s modern interpretation of the law of war,
incorporating reference to relevant international conventions and rules of the
customary law of war, as well as relevant statutes.77 Army Regulation (AR) 190-8
prescribes the treatment to be accorded to prisoners based on their status.78 The U.S.
military also incorporates the law of war into rules of engagement (ROE) prepared
for specific combat operations,79 providing instructions to soldiers on the lawful
handling of prisoners.
The authority to detain enemy combatants continues to rest on a theory of
agency or allegiance to the state. Enemy soldiers are presumed to follow the orders
of commanders, therefore, if hostilities cease, soldiers can be expected to cease their
fighting and will no longer pose a threat. There is thus no longer any military need
to keep them in captivity under article 21 of GPW.
Civilian Detainees.
Civilians in occupied territory or the territory of a belligerent may be interned
during war if necessary for reasons of security.80 The Fourth Geneva Convention
(GC) protects civilians who fall into the hands of the enemy, providing protections
similar to those afforded POWs under the GPW. Enemy civilians, that is, those
civilians with the nationality of the opposing belligerent state, have the status of
74See id. at 127-28.
75General Orders No. 100 para. 52.
76See PICTET, supra note 33, at 25 (noting Third Geneva Convention of 1949 has 143 articles
plus annexes; compared with 97 in the Geneva Convention of 1929, and the chapter of the
Hague Regulations on prisoners had only 17 articles). GPW art. 4 was intended to expand
the coverage of the protection. See id. at 100.
77See FM 27-10, supra note 22, para. 1 (listing treaties pertinent to land warfare to which
the United States is a party).
78Department of the Army, AR 190-8, Enemy Prisoners of War, Retained Personnel, Civilian
Internees and Other Detainees (1997).
79See Lt. Col. Marc L. Warren, Operational Law – A Concept Matures, 152 MIL. L. REV.
33, 51-57 (1996) (explaining function of ROE).
80GC art. 42 (“The internment or placing in assigned residence of protected persons may be
ordered only if the security of the Detaining Power makes it absolutely necessary.”).

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“protected person” under the GC, as long as that state is a party to the GC.81
Nationals of a neutral or co-belligerent states who fall into the hands of a belligerent
state are not entitled to the status of “protected persons” as long as the state of which
they are nationals has normal diplomatic representation with the state in whose hands
they are.82 Presumably, these civilians would be protected through the diplomatic
efforts of their home country and would not be exposed to the same vulnerabilities
as are the citizens of the belligerent states themselves. However, Common Article
3 provides a set of minimum standards for all persons, whether or not they are
“protected persons.”83 Furthermore, part II of the GC applies universally without
regard to the nationality of the civilians affected.84
Civilians who participate in combat, unlike combatants, are not acting on behalf
of a higher authority with whom peace can be negotiated; therefore, they are not
immune from punishment for belligerent acts. Their conduct is dealt with according
to the law of the criminal jurisdiction in which it occurred, which could mean a civil
trial or trial by a military tribunal convened by an occupying power. The GC does not
state that civilians who engage in combat thereby lose their protection under the
Convention. They lose their protection as civilians in the sense that they may
become lawful targets for the duration of their participation in combat, but their
status as civilians does not change according to the Convention. Traditionally, such
a person might be regarded as an “unlawful combatant,”at least if caught while
committing a hostile act, and may be tried and punished in accordance with criminal
law.
Unlawful Belligerents.
There is no definition or separate status under the Geneva Conventions for
“unlawful belligerents.” However, the law of war has denied the status of privileged
combatant to warriors who conduct violence for private rather than public purposes
or who carry out specific unprivileged acts.85 There are traditionally two types of
unlawful belligerents: combatants who may be authorized to fight by a legitimate
party to a conflict but whose perfidious conduct disqualifies them from the privileges
of a POW, and civilians who are not authorized as combatants but nevertheless
participate in hostilities, but who do not thereby gain combatant status.
81GC art. 4.
82Id.
83See George H. Aldrich, The Laws of War on Land, 94 AM. J. INT’L L. 42, 60-61 (2000)
(citing international court cases for the proposition that Common Article 3 states
customary international law with regard to international armed conflicts).
84See GC art. 4 (stating “[t]he provisions of Part II are, however, wider in application, as
defined in Article 13”).
85See Mallison and Mallison, supra note 24, at 42.

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Spies, Saboteurs, and Mercenaries.
The first type of unlawful belligerents includes spies, saboteurs and mercenaries.
These persons are acting on behalf of a party to the conflict and probably under its
orders, but are nonetheless denied the status of lawful belligerents.
Spies and Saboteurs.
A spy is one who, in disguise or under false pretenses, penetrates behind enemy
lines of a belligerent to obtain information with the intent of communicating that
information to the hostile party.86 If captured in the act, a spy may be denied POW
treatment, tried and possibly executed.87 However, if a spy rejoins the army of the
hostile party as a lawful combatant, he is no longer subject to punishment for those
acts should he later fall into the hands of the enemy.88 Saboteurs, or enemy agents
who penetrate into the territory of an adversary without openly bearing arms in order
to perpetrate hostile acts are subject to similar treatment.89 If the acts are directed
against civilian targets, they will likely be termed acts of terrorism.90 Saboteurs retain
the protection of the GC,91 and are entitled to a fair and regular trial before
punishment may be administered.92 If spies and saboteurs were to retain their
entitlement to POW status, belligerents could immunize those they send behind
enemy lines by making them members of the armed forces, thus eliminating the
inherent risk in such conduct.93
GC art. 5 addresses the treatment of spies and saboteurs:
Where, in the territory of a Party to the conflict, the latter is satisfied that an
individual protected person is definitely suspected of or engaged in activities hostile
to the security of the State, such individual person shall not be entitled to claim such
rights and privileges under the present Convention as would, if exercised in the
favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or
saboteur, or as a person under definite suspicion of activity hostile to the security
of the Occupying Power, such person shall, in those cases where absolute military
86 See Hague Convention No. IV Respecting the Laws and Customs of War on Land art. 29,
Oct. 18, 1907, 36 Stat. 2277. The U.S. codification of this rule is article 106 of the UCMJ,
codified at 10 U.S.C. § 904. See FM 27-10, supra note 22, at paras. 75-78.
87 See id. art. 30.
88 See id. art. 31.
89 See FM 27-10, supra note 22, at para. 81 (citing GC III art. 4).
90See Hans Peter Gasser, Prohibition of Terrorist Acts in International Humanitarian Law,
253 INT’L REV. RED CROSS 200 (1986), available at [http://www.icrc.org].
91 See id. at § 73.
92 See GC IV art. 5; FM 27-10, supra note 22, at para. 248.
93See LEVIE, supra note 28, at 37 (noting that a person suspected of being a spy or saboteur
who claims POW status is entitled to a determination by a competent tribunal under GPW
art. 5).

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security so requires, be regarded as having forfeited rights of communication under
the present Convention.
In each case, such persons shall nevertheless be treated with humanity, and in case
of trial, shall not be deprived of the rights of fair and regular trial prescribed by the
present Convention. They shall also be granted the full rights and privileges of a
protected person under the present Convention at the earliest date consistent with
the security of the State or Occupying Power, as the case may be.
Mercenaries.
Mercenaries are persons who are not members of the armed forces of a party to
the conflict but participate in combat for personal gain.94 They may be authorized,
or at least encouraged to fight by a party to the conflict, but their allegiance to the
authorizing party is conditioned on payment rather than obedience and loyalty.95 It
is seen as questionable whether mercenaries can serve as valid agents of a party to
the conflict, or are, rather, mere “contract killers,” especially considering they could
just as easily switch sides to accept a better offer; may be operating in pursuit of
different objectives from those of the party to the conflict; and may have an incentive
for keeping the conflict live. In that sense, they are theoretically similar to brigands,
looters, and bounty hunters,96 who may take advantage of hostilities to conduct
94See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977,
reprinted in 16 I.L.M. 1391.
Art. 47 defines mercenary as follows:
2. A mercenary is any person who:
(a) Is specially recruited locally or abroad in order to fight in an armed conflict;
(b) Does, in fact, take a direct part in the hostilities;
(c) Is motivated to take part in the hostilities essentially by the desire for private gain
and, in fact, is promised, by or on behalf of a Party to the conflict, material
compensation substantially in excess of that promised or paid to combatants of similar
ranks and functions in the armed forces of that Party;
(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by
a Party to the conflict;
(e) Is not a member of the armed forces of a Party to the conflict; and
(f) Has not been sent by a State which is not a Party to the conflict on official duty as a
member of its armed forces.
95See Lieutenant Commander Gregory P. Noone, The History and Evolution of the Law of
War Prior to World War II, 47 NAVAL L. REV. 176, 187 (2000) (recounting origin of
prohibition on mercenaries after the Middle Ages).
96The United States has traditionally regarded the use of bounty hunters and private
assassins as uncivilized. The 1914 Rules of Land Warfare stated:
Civilized nations look with horror upon rewards for the assassination of enemies, the
perpetrator of such an act has no claim to be treated as a combatant, but should be treated
as a criminal. So, too, the proclaiming of an individual belonging to the hostile army, or a
(continued...)

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unlawful looting for their own enrichment without regard for military necessity or the
law of war.97 However, merely having a nationality other than that of the party on
whose side a soldier fights does not automatically make that soldier a mercenary.98
It has been suggested that non-Afghan members of the Taliban and Al Qaeda
might be mercenaries and disqualified from POW privileges on that basis.99 Based
on press reports and Pentagon statements about the detainees, there is little to suggest
that their motives stem from personal material gain rather than a belief that they are
serving a higher power. It appears to be generally recognized that the fighters do not
believe themselves to be serving Afghanistan as a country but are serving either the
Taliban or Al Qaeda, perhaps both, for ideological reasons. The United States has
made it clear that it is not fighting against the Afghan people, but instead considers
the Taliban and Al Qaeda to be the enemies. Since both groups are considered to be
parties to the conflict and their conduct serves as justification for the United States’
combat operations in Afghanistan, the label of mercenary does not appear appropriate
for the groups as a whole, although some of the individual fighters may prove to be
mercenaries.
Civilians Who Engage in Combat.
The second category of unlawful belligerents consists of civilians who carry out
belligerent acts that might well be conducted lawfully by combatants with proper
authorization of the state. They act on their own, albeit perhaps for patriotic or
ideological reasons. Because they do not answer to any higher command, they are not
valid agents of a party to the conflict and cannot always be expected to lay down their
arms when hostilities between parties cease. Civilians who engage in combat lose
their protected status and may become lawful targets for so long as they continue to
fight. They do not enjoy immunity under the law of war for their violent conduct and
can be tried and punished under civil law for their belligerent acts. However, they
do not lose their protection as civilians under the GC if they are captured.100
96(...continued)
citizen or subject of the hostile government, an out-law, who may be slain without trial by
a captor. The article includes not only assaults upon individuals, but as well any offer for an
individual “dead or alive.”
See RULES OF LAND WARFARE para. 179 (U.S. War Department 1917).
97See MCCOUBREY, supra note 40, at 145 (noting the “disturbing” role of mercenaries in the
conflict in Angola as “contract killers”).
98See id.(noting that not all foreigners in service of armed forces of other countries should
be treated as “mercenaries,” as some may serve with the approval of their home
governments or for moral or ideological reasons); LEVIE, supra note 28, at 75 (describing
entitlement to POW status of nationals of neutral states or states allied with enemy state as
well-settled, while status of individual who is national of capturing state or its allies is
subject to dispute).
99See Joseph Samuels, Unconventional Prisoners, GLOBE & MAIL (Toronto), Jan. 24, 2002,
at A21 (opining that U.S. treatment of detainees is consistent with Geneva Protocols).
100See FM 27-10, supra note 22, at para 247 (those protected by GC also include all persons
who have engaged in hostile or belligerent conduct but who are not entitled to treatment as
(continued...)

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It would seem that the Taliban and Al Qaeda do not exactly fit the second
definition of unlawful combatants, either. Again, it appears they are considered to
be parties to the conflict who may lawfully be treated as military targets whether or
not they are directly participating in the immediate hostilities. If every Taliban or Al
Qaeda fighter is considered a civilian participating in an armed conflict without
authorization who can be tried for ordinary acts of combat, then the question might
be asked whether an armed conflict exists at all, there being no apparent legitimate
force opposing the United States.101
Guerrillas and “Non-POWs”?
Some argue there is a third category of unlawful belligerents, comprised of all
members of organized groups of irregular fighters that do not, as a whole, meet the
criteria to be treated as prisoners of war.102
These groups typically employ
unorthodox guerrilla tactics emphasizing stealth and surprise,103 and have received
somewhat uneven treatment at the hands of states.104 In some conflicts, irregulars
who could not prove their affiliation to an official military were summarily shot as
franc-tireurs.105 The lack of international consensus with regard to the treatment of
insurgents and partisans contributed to the international impetus to codify the law of
war, but has not been resolved and remains a source of contention among states
parties to the resulting treaties.106 Guerrilla tactics do not appear to be in and of
themselves violative of international law.107 It could be argued that conventional
style warfare conducted by irregular soldiers is no worse. Under this view, members
of irregular armies who carry out ordinarily lawful belligerent acts, or who have not
personally carried out any hostile acts, while not necessarily entitled to POW
privileges, are not punishable as unlawful combatants. Like POWs, they would be
100(...continued)
prisoners of war). Certain civilians who are suspected of engaging in hostile conduct are
“not entitled to claim such rights and privileges under GC as would, if exercised in favor of
such individual person, be prejudicial to the security of such State.” Id. at para. 248.
101See discussion on “Characterizing the Conflict,” infra.
102See A TREATISE ON THE JURIDICAL BASIS OF THE DISTINCTION BETWEEN LAWFUL
COMBATANT AND UNPRIVILEGED BELLIGERENT 7 (U.S. Army Judge Advocate General’s
School 1959) (hereinafter “TREATISE”) (noting the Geneva Conventions do not state that
fighters who do not pass the four part test of article 4 are illegal combatants, and that
therefore, if they are to be so considered, it is only because of customary international law).
103See Mallison and Mallison, supra note 24, at 42.
104See generally TREATISE, supra note 102, at 11-42 (describing varying treatment given
irregulars at the hands of different states, and even by the same state during different phases
of a conflict).
105See id. at 44 (citing the example of the Franco-Prussian War as impetus for advancements
in the law of war allowing irregular fighters to qualify as belligerents).
106See Baxter, supra note 23, at 327 (arguing the 1949 Geneva Conventions destroyed what
little certainty had existed in the law regarding status of irregulars).
107See id. at 337 (noting distinction between those fighting for private gain and those fighting
because of genuine allegiance to a cause).

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subject to internment at the hands of the state without necessarily being charged with
a crime. Their detention would be based on membership in the irregular army rather
than citizenship and suspicion.
The issue remains: what set of rules applies to them? Some argue that, in the
very least, Common Article 3 applies as well as other international human rights law.
Others argue that neither peacetime civil law nor the law of war applies, essentially
leaving them outside the law altogether.
Interpretation of GPW Article 4
Assuming the conflict is international, both the United States and Afghanistan,
as signatories to the four Geneva Conventions of 1949, are bound to grant POW
status to enemy combatants who qualify under GPW article 4. Members of the
armed forces, including militias and volunteer corps serving as part of the armed
forces, who are captured are entitled to be treated as POWs. Members of other
volunteer corps, militias, and organized resistence forces belonging to a party to the
conflict are entitled to POW status only if the organization meets the four criteria in
GPW article 4A(2). The regular armed forces of a state,108 even if it is a government
or “authority” not recognized by the opposing party,109 need not necessarily satisfy
the four criteria in order for their members to be entitled to POW status under the
GPW art. 4A(2). However, members of regular armed forces may be denied POW
rights if they are caught as spies or saboteurs behind enemy lines.110 Under this view,
Taliban soldiers captured on the battlefield in Afghanistan are at least presumptively
lawful combatants entitled to POW status.
Al Qaeda is not claimed as the armed forces of Afghanistan; therefore, its
members are entitled to POW status only if it “forms part of” the armed forces of
Afghanistan, it “belongs to” the Taliban and meets the four criteria in GPW art.
4A(2), or it can be considered “an authority” not recognized by the United States but
nevertheless a party to the conflict.
GPW Art. 4A(1): Does Al Qaeda Form “Part of” the Armed Forces
of a Party to the Conflict?
The GPW provides little guidance for making the determination whether an
armed militia or volunteer group “forms part of” the regular army of a party to a
conflict for the purposes of article 4A(1). The determination may be made in
accordance with the national laws of the state party to the conflict.111 The language
108GPW art. 4A(1).
109GPW art. 4A(3).
110See LEVIE, supra note 28, at 36-37 (explaining that a soldier wearing civilian clothes
captured in enemy territory engaged in sabotage or espionage is no more entitled to POW
treatment than a civilian in the same situation, lest states incorporate saboteurs and spies
into their armed forces to immunize them for violations of the law of war).
111See id. at 36 (noting, however, that states may not use domestic legislation to bring
(continued...)

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CRS-22
may have been included in order to ensure that members of the United States
National Guard, for example, are protected.112 However, in the case of states with
less developed military organizations, including newly emerging states or new
governments, the determination may not be as clear. If some Al Qaeda combat units
are officially incorporated into the Taliban army, members of those units could argue
that they are entitled to POW status.113
GPW Art. 4A(2): Does Al Qaeda “Belong to” a Party to the Conflict?
Even if Al Qaeda is not part of the armed forces of Afghanistan, its members
could qualify as POWs if Al Qaeda “belongs to” a party to the conflict and it meets
the criteria under GPW art. 4A(2). Presumably, “belonging to” a party would be a
less exacting standard than “forming part of”its armed forces. It may be that informal
and even temporary cooperation between the militia or volunteer group and regular
troops suffices to bring militia members under the protection of combatant status.114
The inclusion of the phrase “organized resistance groups” complicates the
interpretation. The phrase was apparently included to address resistance movements
of the type that sprang up in many occupied territories during World War II.115 If a
militia is fighting on behalf of a government-in-exile, the question arises as to
whether that government is still a party to the conflict to which a resistance group
might validly belong.116
If no party to the conflict claims a partisan group or authorizes it to engage in
combat, there may be insufficient proof that the group is covered. An Israeli court
confronted the question when members of the Popular Front for the Liberation of
Palestine (PLFP) sought to overturn criminal convictions for acts they committed in
the West Bank by claiming POW status.117 The court upheld the civil convictions,
holding that since no government with which Israel was then at war claimed
responsibility for the actions of the PLFP, its members were not entitled to be treated
as POWs. Because the occupied territory of the West Bank previously belonged to
111(...continued)
otherwise unlawful combatants under the protection of the GPW).
112 See LEVIE, supra note 28, at 38.
113 See Douglas Cassel, Case by Case: What Defines a POW?, CHI. TRIB., Feb. 3, 2002
(noting that at least one Al Qaeda battalion is reportedly incorporated into the Taliban armed
forces, possibly entitling those soldiers to POW status upon capture).
114See Mallison and Mallison, supra note 24, at 52 (suggesting “belonging” element could
be satisfied by mere de facto relationship between the irregular unit and a state).
115See Cassel, supra note 113, at 40, n.151 (distinguishing resistance movement in
international conflict from rebel groups in civil wars for the purpose of article 4).
116 See id. at 41 (concluding that indigenous groups resisting invading forces are likely meant
to be covered, but recognizing ambiguity with respect to groups supporting the invading
army).
117Military Prosecutor v. Kassem, 47 I.L.R. 470 (1971) (excerpts reprinted in DOCUMENTS
ON PRISONERS OF WAR, document no. 160 (U.S. Naval War College 1979) (hereinafter
“POW DOCUMENTS”).

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CRS-23
Jordan, a signatory of the GPW, the PLFP could only belong to “a party” if it
belonged to Jordan. Since the group was illegal in Jordan, the court reasoned its
members were not protected as POWs.118
On the other hand, governments are not always willing to acknowledge their
support of irregular armed groups, meaning a partisan group may have to establish
a de facto relationship through other means.119 United States officials have argued
that the Taliban and Al Qaeda are intimately connected.120 That connection is
arguably what makes the Taliban responsible for the terrorist acts of Al Qaeda, and
thus subject to military action. For that reason, it may be counterproductive for
United States Officials to take the position that Al Qaeda does not belong to the
Taliban for the purposes of applying GPW art. 4.
The Four Criteria.
The four criteria in GPW art. 4A(2) appear to be at the center of the debate
about the POW status of detainees. The main issue is whether the four criteria apply
only to irregulars, as the text and structure of the treaty suggests, or whether they
form a part of customary international law and apply to all combatants.121
Unfortunately, there is not much legal precedent that can aid in interpreting and
applying the criteria.122
118But see Mallison and Mallison, supra note 24, at 71-72 (arguing status of PFLP under
Jordanian law was not relevant to the question of whether it “belonged to” a party).
119See LEVIE, supra note 28, at 42 (citing GPW commentary suggesting that supply of arms
might be evidence of relationship).
120See Press Conference, Department of Defense, Secretary Rumsfeld Media Availability
e n
r o u t e
t o
C a m p
X - R a y ,
J a n .
2 7 ,
2 0 0 2 ,
a v a i l a b l e
a t
[http://www.defenselink.mil/news/Jan2002/ t01282002_t0127sd2.html].
With respect to the Taliban, the Taliban also did not wear uniforms, they did not have
insignia, they did not carry their weapons openly, and they were tied tightly at the waist to
Al Qaeda. They behaved like them, they worked with them, they functioned with them, they
cooperated with respect to communications, they cooperated with respect to supplies and
ammunition, and there isn't any question in my mind – I'm not a lawyer, but there isn't any
question in my mind but that they are not, they would not rise to the standard of a prisoner
of war.
121See LEVIE, supra note 28, at 36 -37 (commenting that the lack of criteria under article
4A(1) “does not mean that mere membership in the regular armed forces will automatically
entitle an individual who is captured to [POW] status if his conduct prior to and at the time
of capture have not met these requirements.”). However, the examples he lists have to do
with individual spies and saboteurs, that is, individual soldiers who pose as civilians to
conduct hostile activities behind enemy lines. It is arguably a different matter to apply the
standards to regular armies as a whole.
122 See TREATISE, supra note 102, at 86-87 (predicting nations would be unlikely to adopt
definitions that might foreclose future options, and noting that prior practice was relatively
useless as precedent, consisting of a “collection of varying and conflicting policy decisions
made on an ad hoc basis”).

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CRS-24
The four criteria have their roots in the earliest expressions of the laws of war,
beginning with the Brussels Declaration123 and continuing nearly unchanged in the
Hague Convention Respecting the Laws and Customs of War on Land of 1907,124 and
are repeated in the GPW. However, this may be more a reflection of nations’
inability to agree on a better formula than an indication of the solidity of their
foundation.125 The criteria may reflect the customs of war as they existed among the
European countries who signed the original treaties, but were not viewed at the time
as universal.126 The criteria originated as a compromise between states with strong
standing armies and weaker states whose defense might depend on armed citizens.127
The only real effect of the enumeration of the criteria at the Hague was to prohibit ill
treatment of those who do not meet them.128
Historically, the most important consideration given to POW status has been
whether there is evidence that they serve a government or political entity that
exercises authority over them.129 For example, the United States practice as early as
1900, during the Philippine Insurrection following the Spanish-American War, was
to accord prisoner of war status to members of the insurgent army recognized by the
Philippine government who complied “in general” with the four conditions.130
Members of guerrilla bands not part of the regular forces were punished severely for
acts of violence. A similar policy was adopted by the British during the South
123See LEVIE, supra note 28, at 44 (noting that Declaration of Brussels, based largely on the
Lieber Code, never entered into force but served as a source for later conventions).
124Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2277, 205 Consol. T.S. 277. Article 1 states:
The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer
corps, fulfilling the following conditions:
To be commanded by a person responsible for his subordinates;
To have a fixed distinctive emblem recognizable at a distance;
To carry arms openly; and
To conduct their operations in accordance with the laws and customs of war.
In countries where militia or volunteer corps constitute the army, or form part of it, they are
included under the denomination “army.”
125See TREATISE, supra note 102, at 48 (attributing the reluctance to adopt any change in the
criteria to the sensitivity of the subject).
126See id. at 95 (pointing out that the reasons for defining irregulars as such are the product
of “western minds,” and that the “gulf between the occidental and oriental concept of war
is vast”).
127See id. at 7 (noting that the “four criteria, being the product of a compromise of violently
conflicting interests, are vague and open to varying interpretations”).
128See id. at 52 (noting that the Hague Convention did not enact any new positive law, but
only attempted to codify the existing rules and prohibit certain acts).
129See generally, Lester Nurich and Roger W. Barret, Legality of Guerrilla Forces under the
Laws of War, 40 AM. J. INT’L L 563 (1946) (surveying history of armed conflict from 1847
through the Second World War).
130See id. at 576 (describing official statements as well as practice with regard to different
types of guerrillas).

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African War, although the first inclination was to declare that, inasmuch as the newly
annexed Orange River Colony was British territory, inhabitants who took up arms
were to be treated as rebels.131 Foreign jurists and some prominent British statesman
objected to the policy as a “monstrous proclamation ... absolutely opposed to the first
principles of international law and history.”132 A new proclamation was issued to
declare that only those inhabitants who had not been a continuous part of the fighting
would be treated as rebels. British forces punished as “marauders” those who carried
out acts of hostility who did not belong to “an organized body authorized by a
recognized Government.”133
On the other hand, toward the end of the Mexican War, in 1847, United States
forces changed from a more tolerant policy toward irregulars to one of utmost
severity. By that time, warfare by bands of guerrillas sanctioned by the late Mexican
government had become the primary means of resistance. Once the war degenerated
to the point where the guerrillas more resembled murderers and highway robbers
than soldiers, the U.S. Secretary of War directed General Winfield Scott to adopt a
policy of less forbearance than had hitherto been observed.134 In 1870, during the
Franco-Prussian War, the German commanders refused to treat any irregular fighters
as lawful combatants, even those who possessed papers proving their affiliation with
the government.135 In 1914, when the German army invaded Belgium, it refused to
recognize the citizen defense of yet unoccupied territories as a valid “people’s war”
qualifying for belligerent status because the Belgian government did not adequately
organize the forces and failed to supply the civilian fighters with proper
distinguishing emblems.136
It was a fundamental part of the law of war that only combatants authorized to
fight on behalf of a state party to a conflict were allowed to participate in the
hostilities. It has never been permitted to wage war against civilians.137 Civilians
could become lawful military objectives only if and for so long as they took up arms
against a belligerent. The four criteria are meant to ensure that only persons
authorized to fight on behalf of a higher authority who is responsible for their
conduct will participate, excluding civilians as both combatants and targets.
131See id. at 578.
132See id. (citing statemnt by James Bryce in the House of Commons).
133See id. at 579.
134See id. at 570-71.
135See id. at 573.
136See ELLERY C. STOWALL AND HENRY F. MUNRO, 2 INTERNATIONAL CASES 122-23
(1916)(citing memorial published by German Foreign Office on May 10, 1915). There were
reports of German soldiers indiscriminately killing Belgian civilians after claiming the
soldiers were fired upon. Id at 119. Reportedly, by the German account, all Belgian citizens
had been “called out,” even those in territories occupied by German forces, and were
murdering German soldiers after pretending to be friendly. Id. at 120.
137See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 778 (2d. ed. 2000).

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Supporters of granting POW status to Taliban soldiers argue that the text of the
Conventions should be read literally. That the four criteria are listed only under the
sub-paragraph for volunteer groups and militias not forming part of the regular army
of a state indicates that there is no similar test for those whose status as members of
a state military force is not in doubt. Others, however, argue that regular soldiers
must already meet those criteria under customary international law, and the drafters
of the GPW felt it would be superfluous to list the criteria with regard to regular
armies. Article 1 of the 1907 Hague Convention could be read to apply the four
criteria to all military forces. However, inasmuch as that article states that not only
the rights, but the laws and duties of war as well, apply only to the parties it lists,
such an interpretation could lead to the conclusion that regular armies could evade
their obligations under the law of war simply by not fulfilling the four conditions.
(a) Commanded by a Person Responsible for his Subordinates.
According to U.S. military doctrine, the responsible command element is
fulfilled if:
the commander of the corps is a commissioned officer of the armed forces or is a
person of position and authority or if the members of the militia or volunteer corps
are provided with documents, badges, or other means of identification to show that
they are officers, noncommissioned officers, or soldiers so that there may be no
doubt that they are not persons acting on their own responsibility.
State
recognition, however, is not essential, and an organization may be formed
spontaneously and elect its own officers.138
The key to the first element is that the subject is acting on behalf of and on the
command of a higher authority. The Secretary of Defense has suggested that the
Taliban do not fulfill this requirement because “they were not organized in military
units, as such, with identifiable chains of command; indeed, Al Qaeda forces made
up portions of their forces.”139 However, in response to a reporter who asked whether
it was not clear that the Taliban were operating as a cohesive unit, pointing to
previous reports that the U.S. military had successfully attacked “command and
control” elements, Secretary Rumsfeld responded that while such a case could be
made for the first (command) element, it would be difficult to argue the Taliban meet
all four criteria, suggesting that that element may not be critical to the
Administration’s position.
A possible drawback to setting a high standard of conventional military
organization to determine whether the Taliban or Al Qaeda meet the “responsible
command” element is that it could contradict the justification for targeting them at
all. If there is insufficient command and control of the forces to distinguish the
Taliban from a lawless mob, it would be unlikely that those forces would pose a
significant threat, especially outside of Afghanistan. If there is no central authority
directing the conduct of the fighters, they would be considered mere civilians whose
138FM 27-10, supra note 22, para. 64a.
139See Rumsfeld Press Conference, supra note 3.

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CRS-27
targeting would accomplish little toward the objective of conquering the foe. It also
raises a question as to the possible value of any intelligence to be gained through
interrogating them.
(b) Uses a Fixed Distinctive Sign Recognizable at a Distance.
According to FM 27-10, the requirement for a “fixed distinctive sign” is
satisfied:
by the wearing of military uniform, but less than the complete uniform will
suffice. A helmet or headdress which would make the silhouette of the individual
readily distinguishable from that of an ordinary civilian would satisfy this
requirement. It is also desirable that the individual member of the militia or
volunteer corps wear a badge or brassard permanently affixed to his clothing. It
is not necessary to inform the enemy of the distinctive sign, although it may be
desirable to do so in order to avoid misunderstanding.140
The GPW does not clarify what is meant by “fixed” or by “distinctive,” despite
the fact that the same language gave rise to disputes as it was interpreted in earlier
treaties.141 Presumably, the requirement for a sign to be “fixed” was meant to prevent
fighters from removing them easily, but it is unlikely the requirement was meant to
remain in force even when no military operations were ongoing.142 Similarly, there
is nothing to explain how great a distance must be before the distinction need no
longer be discernible. Methods of locating and of camouflaging military targets,
including soldiers, make it questionable whether the standards are the same today as
they were when the original Conventions were drafted, if such standards ever existed.
The purpose for requiring combatants to distinguish themselves from civilians
is to protect civilians from being targeted. Combatants who are unable to distinguish
enemy combatants from civilians might resort to firing upon all human beings in the
area of operations. There may be other reasons for enforcing the obligation to
identify oneself as a combatant that serve tactical purposes rather than purely
humanitarian ends. Requiring irregulars to display a mark aids the opposing army
in targeting them and also impedes the irregulars’ ability to effect a surprise attack.143
The use of different uniforms to distinguish the forces also helps leaders identify their
own troops during combat, and to distinguish friendly from enemy soldiers.144 It has
also been suggested that the requirement to wear a uniform is a remnant of long
outdated forms of warfare, in which closely ranked armies opposed each other across
140FM 27-10, supra note 22, at para. 64b.
141See LEVIE, supra note 28, at 47.
142See Mallison and Mallison, supra note 24, at 56-57 (noting that armbands, insignia, or
distinctive headgear are acceptable according to some military manuals).
143See TREATISE, supra note 102, at 31.
144See id. at 76 (noting that uniforms performed a purely utilitarian function prior to the
Franco-Prussian War).

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open fields.145 Modern army uniforms are designed to make the wearer difficult to
distinguish from the surrounding foliage from any distance. It has been pointed out
that the requirement for irregulars is not more stringent than the standard set by
regular armies.146
Although the lack of uniform can be detrimental to a soldier who falls into the
hands of the enemy,147 it has not been the case historically that all fighters lacking a
uniform or some other identifying mark have been denied prisoner status.148
According to FM 27-10, the lack of uniform brings the following result:
Members of the armed forces of a party to the conflict and members of militias or
volunteer corps forming part of such armed forces lose their right to be treated as
prisoners of war whenever they deliberately conceal their status in order to pass
behind the military lines of the enemy for the purpose of gathering military
information or for the purpose of waging war by destruction of life or property.
Putting on civilian clothes or the uniform of the enemy are examples of concealment
of the status of a member of the armed forces.149
For a combatant to engage in hostilities while disguising his identity in order to
deceive the enemy thus could amount to perfidious conduct in violation of the law
of war.150 Guerrillas and terrorists therefore lose any claim they might have to
protected status if they place the civilian populace at risk. However, a soldier not
engaging in hostilities probably has not committed a violation by using civilian
disguise merely to evade detection by the enemy.151 Soldiers who belong to armies
145See Baxter, supra note 23, at 343.
146See Mallison and Mallison, supra note 24, at 57.
147See Baxter, supra note 23, at 343. (“[T]he character of the clothing worn by the accused
has assumed major importance.”).
148See generally TREATISE, supra note 102. For example, during the French and Indian War,
both sides employed some irregulars, who did not wear uniforms, and these were apparently
regarded as lawful combatants. Id. at 18-19. During the American Revolution, the British
army treated colonial irregulars belonging to militias as lawful combatants despite their lack
of uniforms, although individual snipers unattached to any American forces were sometimes
executed. Id. at 20-21. In the Spanish Peninsular War (1807-1814), the French treated all
irregulars as illegal combatants, even those that met the four conditions embodied in later
treaties. See id. at 23-23.
149FM 27-10, supra note 22, at para. 74 (emphasis added.)
150Perfidious conduct refers to an act that “invite[s] the confidence of an adversary to lead
him to believe that he is entitled to receive, or is obliged to accord protection under the rules
of international law applicable in armed conflict, with intent to betray that confidence....”
See BASIC RULES OF THE GENEVA CONVENTIONS AND THEIR ADDITIONAL PROTOCOLS 24
(ICRC ed. 1983).
151See Baxter, supra note 23, at 340-41 (noting probable distinction between hostile intent
and seeking to escape).

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that do not wear full uniforms are not necessarily engaging in perfidious conduct as
long as they bear arms openly and do not hide their belligerent status.152
Secretary of Defense Rumsfeld has suggested that the Taliban do not fulfill the
requirement because they “did not wear distinctive signs, insignias, symbols or
uniforms. To the contrary, far from seeking to distinguish themselves from the
civilian population of Afghanistan, they sought to blend in with civilian non-
combatants, hiding in mosques and populated areas.”153 Critics of the Defense
Department’s position point out that neither the Taliban nor the Northern Alliance
had ever worn uniforms or any distinctive sign, other than the black turban reportedly
worn by members of the Taliban and distinctive headscarves worn by members of
the Northern Alliance.154 The failure to wear what Western commanders might
regard as proper military dress may be more a matter of custom than perfidy. Since
most of the hand-to-hand combat was conducted by the Northern Alliance, with U.S.
forces supplying intelligence and fire support from the air or at a great distance, the
critics argue, the Pentagon’s position that the lack of uniforms makes “unlawful
combatants” of the Taliban force is less persuasive.155 The very success of the armed
forces in quickly routing the enemy with virtually no U.S. casualties may also make
the argument somewhat more difficult to sustain. Finally, critics have pointed out
that U.S. Special Forces troops have been known to operate occasionally in civilian
dress, or even to use the uniform of the enemy for the purpose of infiltrating enemy
territory.156
(c) Carries Arms Openly.
The requirement of carrying arms openly serves a similar purpose to that of the
fixed distinctive sign, to prevent perfidious conduct in violation of the law of war.
FM 27-10 describes this requirement in the negative. It is:
not satisfied by the carrying of weapons concealed about the person or if the
individuals hide their weapons on the approach of the enemy.
152See, e.g. TREATISE, supra note 102, at 55-59 (describing the very unconventional
commandos of the Boer Republic, which Britain treated as lawful combatants despite the
fact that they wore civilian clothing and employed guerrilla tactics in the latter phase of the
Boer War).
153See Rumsfeld Press Conference, supra note 3.
154See Robert K. Goldman and Brian D. Tittemore, Unprivileged Combatants and the
Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and
Human Rights Law, American Society of International Law, Task Force on Terrorism Paper
23 (Dec. 2002), available at http://www.asil.org/taskforce/goldman.pdf (last visited Sep. 15,
2003)(commenting that “both modes of dress, while perhaps not ideal, are, nonetheless,
sufficient to satisfy the principle of distinction under current law.”).
155Id. (“It is also somewhat disingenuous for the Administration to press this particular point
because if the Northern Alliance clearly knew how to identify the enemy, then so too did
their U.S. allies in the field.”).
156See Gary L. Walsh, Role of the Judge Advocate in Special Operations, 1989-AUG ARMY
LAW. 4, 6-7 (noting that while use of the enemy uniform during battle is forbidden by the
law of war, U.S. policy allows use of the enemy uniform for infiltration of enemy lines).

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The ICRC notes the distinction between “carrying arms ‘openly’ and carrying them
‘visibly’ or ‘ostensibly,’” stating the provision “is intended to guarantee the loyalty
of the fighting (sic), it is not an attempt to prescribe that a hand-grenade or a revolver
must be carried at belt or shoulder rather than in a pocket or under a coat.”157 The
paramount concern “is that the enemy must be able to recognize partisans as
combatants in the same way as members of regular armed forces, whatever their
weapons.”158
It is unclear whether arms must be carried in the open at all times or only during
the conduct of actual hostilities. Since surprise attacks are not per se unlawful, it
seems that ordinary ruses of war that involve camouflage or the concealing of arms
to hide preparation for battle would be permissible, while perfidious attacks carried
out with weapons disguised as harmless equipment might not be allowed.
It may also be valid to question whether the requirement is the same during
offensive operations for both the attacker and the attacked. To impose the same
requirements on those who suddenly find themselves in battle, denying POW status
on the basis that a particular combatant had a weapon concealed somewhere or was
not at the time in uniform would seem to give the attacker a clear advantage and even
greater incentive to launch surprise attacks against an unprepared enemy.
(d) Conducts its Operations in Accordance with the Laws of War.
According to FM 27-10:
This condition is fulfilled if most of the members of the body observe the laws and
customs of war, notwithstanding the fact that the individual member concerned may
have committed a war crime. Members of militias and volunteer corps should be
especially warned against employment of treachery, denial of quarters, maltreatment
of prisoners of war, wounded, and dead, improper conduct toward flags of truce,
pillage, and unnecessary violence and destruction.
The ICRC interprets the condition similarly:
Partisans are ... required to respect the Geneva Conventions to the fullest extent
possible. In particular, they must conform to international agreements such as those
which prohibit the use of certain weapons (gas). In all their operations, they must
be guided by the moral criteria which, in the absence of written provisions, must
direct the conscience of man; in launching attacks, they must not cause violence and
suffering disproportionate to the military result which they may reasonably hope to
achieve. They may not attack civilians or disarmed persons and must, in all their
operations, respect the principles of honour and loyalty as they expect their enemies
to do.159
157See ICRC COMMENTARY, supra note 53, at 61.
158See id.
159See id.

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The condition is said to be vital to the recognition of irregular fighters, because
states cannot be expected to adhere to the law of war to fight an enemy that is not
likewise bound. However, the somewhat lenient stance just quoted reflects the fact
that the “concept of the laws and customs of war is rather vague and subject to
variation as the forms of war evolve.”160 The imprecision of the condition could lead
to its abuse; a relatively minor violation of the law of war could be used as a pretext
to deny POW status to an entire army, which would arguably give the members of
an irregular army little incentive to follow any of the rules if adherence to a particular
rule is outside their capability.161
One of the unresolved issues, then, is whether the criteria apply to each soldier
as an individual or to the army as a whole. In other words, does the violation of a
rule by one soldier result in the failure to qualify for POW status for the rest of the
group, even though some members might scrupulously follow all of the rules? Can
individual soldiers still qualify for POW status even though their leaders do not
strictly enforce the rules over all subordinates? A member of a regular force does not
lose his right to be treated as a POW by violating the law of war, so it might seem
inconsistent to give members of irregular groups who might otherwise qualify
harsher treatment. However, a capturing power is probably inclined to insist that
each individual detainee meet all four conditions before receiving treatment as a
POW.162
With regard to whether a regular army forfeits the right to have its members
treated as POWs by failing to follow the laws of war, U.S. practice has been to
comply with the Conventions even when the opposing side of a conflict does not.
The United States treated North Korean and Chinese prisoners as POWs during the
armed conflict in Korea, despite the near total disregard of its provisions on the part
of the Communists.163 The United States also treated North Vietnamese and some
Vietcong prisoners as POWs, despite North Vietnam’s denial that the GPW applied
at all,164 along with its threatened policy of treating downed U.S. airmen as war
criminals not eligible for POW status.
160See id.
161See Mallison and Mallison, supra note 24, at 60 (suggesting that “it is better to have
irregulars adhere as much as possible rather than not at all”).
162See LEVIE, supra note 28, at 44-45, emphasizing that:
[M]ost Capturing Powers will deny the benefits and safeguards of the Convention to any such
individual who is in any manner delinquent in compliance. It must also be emphasized that
if an individual is found to have failed to meet the four conditions, this may make him an
unprivileged combatant but it does not place him at the complete mercy of his captor, to do
with as the captor arbitrarily determines. He is still entitled to the general protection of the
law of war, which means that he may not be subjected to inhuman treatment, such as torture,
and he is entitled to be tried before penal sanctions are imposed.
163See LEVIE, supra note 28, at 30 (noting that none of the parties had yet acceded to the
treaties but all had agreed to be bound by their humanitarian principles).
164See id.

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Determining Status under GPW Art. 5
Article 5 of GPW states: “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 in article 4 for POWs, “such persons shall enjoy the
protection of the present Convention until such time as their status has been
determined by a competent tribunal.” President Bush has declared with respect to the
detainees that there is no ambiguity: they are “unlawful combatants” and are not
entitled to POW status. Some critics argue that while most of the detainees may fail
to meet the criteria for POW status, a declaration by the executive to that effect does
not equate to a decision by a “competent tribunal.”
The GPW does not indicate how an article 5 tribunal should be constituted or
in whose mind the doubt must arise in order to compel the institution of such a
tribunal. The provision is new to the 1949 GPW and was inserted at the request of
the ICRC.165 Prior to the inclusion of this language, summary decisions were often
made by soldiers of relatively low rank on the battlefield, leading to instances where
a captive could be presumed unlawful and executed on the spot, with any
investigation to follow.166 Under the 1949 GPW, combatants are presumed to be
entitled to POW status unless formally declared otherwise.167 The United States has
in the past interpreted this language as requiring an individual assessment of status
before privileges can be denied.168 Any individual who claims POW status is entitled
to an adjudication of that status. An individual who has not committed a belligerent
act and thus claims to be an innocent civilian arguably has the right to have that claim
adjudicated.
The conflict in Vietnam, with its high frequency of irregular warfare, brought
about the first implementation of written procedures for art. 5 tribunals.169 The
United States Military Assistance Command (MACV) first issued a directive
pertaining to the determination of POW status in 1966.170
Under the MACV
directive, the captured North Vietnamese Army and Vietcong fighters were accorded
165See ICRC COMMENTARY, supra note 53, at 77.
166See LEVIE, supra note 28, at 56.
167See Baxter, supra note 23, at 343-44 (“The judicial determination which is necessary
before a person may be treated as an unprivileged belligerent is in consequence not a
determination of guilt but of status only and, for the purposes of international law, it is
sufficient to ascertain whether the conduct of individual has been such as to deny him the
status of the prisoner or of the peaceful civilian.”).
168See id; FM 27-10, supra note 22, at para. 71 (“[Article 5] applies to any person not
appearing to be entitled to prisoner-of-war status who has committed a belligerent act or has
engaged in hostile activities in aid of the armed forces and who asserts that he is entitled to
treatment as a prisoner of war or concerning whom any other doubt of a like nature exists.”).
169See POW DOCUMENTS, supra note 117, at 722.
170See MACV Directive 20-5, 17 May 1966.

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POW status upon capture.171 “Irregulars” were divided into three groups: guerrillas,
self-defense force, and secret self-defense force. Members of these groups could
qualify for POW status if captured in regular combat, but were denied such status if
caught in an act of “terrorism, sabotage or spying.”172 Those not treated as POWs
were treated as civil defendants, and were accorded the substantive and procedural
protections of the GC.173 This approach met with the approval of the ICRC.174
The current procedures for determining the status of detainees is prescribed in
United States Army Regulation (AR) 190-8. The regulation divides persons captured
on the battlefield into four groups:
enemy prisoners of war (EPW), retained
personnel (RP - medical personnel, chaplains, and Red Cross representatives),
civilian internees (CI), and other detainees (OD - whose status has not yet been
determined but who are to be treated as EPW in the meantime). Ordinarily, a
preliminary determination of each captive's status would be made by military police
with the assistance of military intelligence personnel and interpreters during the
processing procedure at the battlefield division collection point.175 Where a captive's
status cannot be adequately determined, the captive will be temporarily assigned the
designation of “OD” until a tribunal can be convened to make a final determination.
In the meantime, the OD is kept with the EPWs and accorded the same treatment.
AR 190-8 sec.1-6 prescribes the procedures for determining whether persons
who have committed belligerent acts or engaged in hostile activities in aid of enemy
armed forces are entitled to POW status, when such status is in doubt, in accordance
with GPW art. 5. A tribunal composed of three commissioned officers established
by a general courts-martial convening authority holds an open (to the extent allowed
by security concerns) proceeding to decide by majority vote on the preponderance of
evidence whether the detainee is an EPW, RP, innocent civilian, or civilian who “for
reasons of operational security, or probable cause incident to criminal investigation,
should be detained.” It is unclear whether there are any specific time limits for a final
determination. The regulation states that
[p]ersons who have been determined by a competent tribunal not to be
entitled to prisoner of war status may not be executed, imprisoned, or
otherwise penalized without further proceedings to determine what acts
they have committed and what penalty should be imposed.176
171See MACV Directive 381-46, Dec. 27, 1967 annex A, reprinted in 62 AM. J. INT’L L 765
(1968).
172Id.
173See Mallison and Mallison, supra note 24, at 73.
174See id. at 74 (quoting commendation by ICRC representative in Saigon).
175See FM 3-19.40 Military Police Internment/Resettlement (I/R) Operations.
176AR 190-8 ch. 1-6(g).

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These procedures do not appear to apply in what the Army calls Military
Operations Other than War (MOOTW).177 In U.S. operations in Somalia and Haiti,
for example, captured persons were termed “detainees” and were treated “in
accordance with the humanitarian, but not administrative or technical standards of
the GPW.”178 Human rights advocates reportedly found the living conditions
acceptable, but criticized the uncertain nature of the detention. None of the detainees
was ever tried by military commission as unlawful combatants.179
During Operation Just Cause in Panama, members of the Panamanian armed
forces were termed “detainees” but were reportedly treated as POWs.180 General
Manuel Noriega, taken prisoner during the operation and removed to the United
States for trial on drug charges, eventually succeeded in having a court accord him
recognition as a POW.181 The court did not agree with the Administration that since
Gen. Noriega was being treated as a POW, there was no need to decide whether he
was entitled to that status under international law.182 The court stated:
The government's position provides no assurances that the government will not at
some point in the future decide that Noriega is not a POW, and therefore not
entitled to the protections of Geneva III. This would seem to be just the type of
situation Geneva III was designed to protect against. Because of the issues presented
in connection with the General's further confinement and treatment, it seems
appropriate -- even necessary -- to address the issue of Defendant's status. Articles
2, 4, and 5 of Geneva III establish the standard for determining who is a POW. Must
this determination await some kind of formal complaint by Defendant or a lawsuit
presented on his behalf? In view of the issues presently raised by Defendant, the
Court thinks not.
Treatment of Detainees at Guantánamo
The Department of Defense defends its treatment of the detainees at the
Guantánamo Naval Station as fully complying with the principles of the Geneva
Convention, causing some to question whether a change in the Administration’s
position as to whether and how the United States is bound to apply the Geneva
Conventions would in any way change the treatment the detainees are receiving.
They point out that the detainees are receiving some of the benefits accorded under
177See Warren, supra note 79, at 58 (noting that during MOOTW in Panama, Somalia, and
Haiti, captured belligerents were not entitled to POW status because none was involved in
an international armed conflict or captured in occupied territory). A court later ruled that
the engagement in Panama amounted to an international armed conflict. See United States
v. Noriega, 808 F.Supp.791 (S.D.Fla. 1992).
178See Warren, supra note 79, at 58-59.
179See id.
180See id.
181See United States v. Noriega, 808 F.Supp. 791 (S.D.Fla. 1992). The change in official
status did not have any effect on his prison sentence.
182Id. at 794.

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the Conventions to protected persons, and are not suffering inhumane treatment. If
there is no uncertainty that none of the detainees qualifies as POWs and their
treatment would not change, they argue, then holding tribunals to determine each
detainee’s status would be largely symbolic and therefore a waste of resources.
Critics of the policy respond that the U.S.’ position regarding the inapplicability of
the Geneva Conventions could be invoked as precedent to defend the poor human
rights practices of other regimes, and it could lead to harsh treatment of U.S. service
members who fall into enemy hands during this or any future conflict. Under their
view, if the Administration can accomplish its goals by applying the GPW to
determine by means of a competent tribunal which of the detainees is entitled to
POW status, the foreign policy and humanitarian benefits would be worth the cost.
The perceived implications of granting POW status appear to have played a role
in the decision-making process, with Administration officials emphasizing the
detrimental impact of treating the detainees as POWs on the U.S.’ ability to fight the
war against terror. There is some controversy over whether the predicted problems
would necessarily result from a change in policy. Some of the issues are discussed
below.
Interrogation
One argument cited frequently in the press for denying POW status to the
detainees is that the U.S. military would no longer be able to interrogate them in an
effort to gain intelligence. The GPW requires prisoners to give only a few personal
facts, including name, rank, and serial number. Most armies undoubtedly forbid
their soldiers from divulging any more information than what is required; however,
there is no prohibition against the detaining power asking for more information.183
It is forbidden to use mental or physical coercion to extract information from
prisoners,184 but tactics such as trickery or promises of improved living conditions are
not foreclosed.185 Article 17 of GPW provides that “[p]risoners of war who refuse
to answer may not be threatened, insulted, or exposed to any unpleasant or
disadvantageous treatment of any kind.” Torture is not permitted in the case of any
detainee, regardless of that person’s status.186
Similar language was contained in the 1929 Geneva Convention.187 Despite the
reports of widespread abuse of prisoners of war at the hands of enemy interrogators,
183See ICRC COMMENTARY, supra note 53, at 164.
184GPW art. 17.
185See LEVIE, supra note 28, at 108.
186GC art. 31 prohibits the use of physical or mental coercion to obtain information. See
also Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Jun. 26, 1987, 1465 U.N.T.S. 85.
187Geneva Prisoners of War Convention of 1929 art. 5 stated in part:
No pressure shall be exerted on prisoners to obtain information regarding the situation of
their armed forces or their country. Prisoners who refuse to reply may not be threatened,
insulted, or exposed to unpleasantness or disadvantages of any kind whatsoever.

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there is very little case precedent defining the boundaries of acceptable conduct. 188
A British military court convicted several German Luftwaffe officers of improperly
interrogating British POWs189 at a special interrogation camp, where it was charged
the officers used excessive heating of cells in order to induce prisoners to give war
information of a kind they were not bound by the Convention to disclose. The
charges also alleged the officers had threatened prisoners that their failure to provide
sufficient answers could be seen by the Gestapo as evidence that the prisoners were
saboteurs.190 The military court expressed its agreement with the defense’s position
that interrogation was not unlawful under the Geneva Convention then in force, that
obtaining information by trick was likewise not unlawful, and that interrogation of
a wounded prisoner was not itself unlawful without evidence that methods used
amounted to physical or mental ill-treatment.191
It appears to be a common practice for militaries to interrogate prisoners as soon
as possible after capture to exploit their knowledge concerning tactical positions and
plans.192 There is no express right to counsel during such interrogation; however, the
case may be different where the information sought is of the type that could
incriminate the prisoner personally for any crime.193 The GPW forbids the use of
coercion to induce a POW to admit guilt, and POWs who are accused of crimes have
the right to counsel.194 It may thus be argued that POWs are entitled to some form
of exclusionary rule to keep a forced confession from introduction into evidence at
trial.
Trial and Punishment
Trial and punishment of detainees may call for different procedural guidelines
depending on the status of the detainee and whether the offense was committed prior
to capture or during captivity.195 Further, there is a distinction between crimes and
188See POW DOCUMENTS, supra note 117, at 708.
189See Trial of Erich Killinger and Four Others, 3 LRTWC 67, excerpts reprinted in POW
DOCUMENTS, supra note 117, doc. No. 70, at 291.
190See id.
191See id. at 292.
192 See ICRC COMMENTARY, supra note 53, at 163.
193See LEVIE, supra note 28, at 109, n42 (arguing the “interrogation of a prisoner of war in
a search for tactical information of immediate urgency cannot be equated to the interrogation
of an individual arrested for questioning in connection with the possible commission of a
crime...”).
194GPW art. 99 states in part:
No moral or physical coercion may be exerted on a prisoner of war in order to induce him
to admit himself guilty of the act of which he is accused.
No prisoner of war may be convicted without having had an opportunity to present his
defence and the assistance of a qualified advocate or counsel.
195See The Department of Defense Rules for Military Commissions: Analysis of Procedural
Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice,
(continued...)

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mere disciplinary violations with respect to the nature and severity of punishment
permitted. The Geneva Conventions do not permit collective punishment without an
individual determination of guilt, nor confinement without a hearing. 196
The military has jurisdiction to try enemy POWs and civilians, including
“unlawful belligerents,” for violations of the law of war.197 However, the military
does not appear to have jurisdiction to try detainees for pre-capture acts not
committed within occupied territory or in connection with the armed conflict, as
described below.198
POWs.
According to GPW article 102:
A prisoner of war can be validly sentenced only if the sentence has been
pronounced by the same courts according to the same procedure as in the case of
members of the armed forces of the Detaining Power, and if, furthermore, the
provisions of the present Chapter have been observed.
Further, Article 84 provides:
In no circumstances whatever shall a prisoner of war be tried by a court of any kind
which does not offer the essential guarantees of independence and impartiality as
generally recognized, and, in particular, the procedure of which does not afford the
accused the rights and means of defence provided for in Article 105.
Other procedural guarantees under the GPW include a prohibition on
punishment for ex post facto crimes,199 prompt notification of the charges and a
speedy trial,200 notification to the Protecting Power of the impending trial at least
195(...continued)
CRS Report RL31600.
196See GPW art. 87; GC III art. 33.
197See 10 U.S.C. § 821 (recognizing concurrent jurisdiction of military courts over offenders
or offenses designated by statute or the law of war); 10 U.S.C. § 818 (recognizing courts-
martial jurisdiction over violations of the law of war committed by any person). For a brief
overview comparing jurisdiction and procedure among various courts, see Selected
Procedural Safeguards in Federal, Military, and International Courts, CRS Report RL31262,
Jan. 30, 2002.
198For example, some of the detainees allegedly were arrested outside the zone of operations,
in Bosnia, for suspicion of involvement in Al Qaeda terrorist plots. Some observers believe
they can only be charged as common criminals and not as unlawful belligerents.
199GPW art. 99.
200GPW art. 103 states:
Judicial investigations relating to a prisoner of war shall be conducted as rapidly as
circumstances permit and so that his trial shall take place as soon as possible. A prisoner of
war shall not be confined while awaiting trial unless a member of the armed forces of the
Detaining Power would be so confined if he were accused of a similar offence, or if it is
(continued...)

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three weeks in advance,201 right to counsel of the POW’s own choosing or appointed
counsel,202 trial in the presence of a representative of the Protecting Power,203 the
right to appeal a decision,204 and if convicted, the right to serve the sentence under
200(...continued)
essential to do so in the interests of national security. In no circumstances shall this
confinement exceed three months.
201 GPW art. 104 requires the following information to be reported to the Protecting Power
(see supra note 69) and POW’s representative before a trial can commence:
1. Surname and first names of the prisoner of war, his rank, his army, regimental, personal
or serial number, his date of birth, and his profession or trade, if any;
2. Place of internment or confinement;
3. Specification of the charge or charges on which the prisoner of war is to be arraigned,
giving the legal provisions applicable;
4 . Designation of the court which will try the case; likewise the date and place fixed for the
opening of the trial.
The same communication shall be made by the Detaining Power to the prisoner’s
representative.
202 GPW art. 105 provides:
The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence
by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he
deems necessary, to the services of a competent interpreter. He shall be advised of these
rights by the Detaining Power in due time before the trial.
Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or
counsel, and shall have at least one week at its disposal for the purpose. The Detaining Power
shall deliver to the said Power, on request, a list of persons qualified to present the defence.
Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power,
the Detaining Power shall appoint a competent advocate or counsel to conduct the defence.
The advocate or counsel conducting the defence on behalf of the prisoner of war shall have
at his disposal a period of two weeks at least before the opening of the trial, as well as the
necessary facilities to prepare the defence of the accused. He may, in particular, freely visit
the accused and interview him in private. He may also confer with any witnesses for the
defence, including prisoners of war. He shall have the benefit of these facilities until the term
of appeal or petition has expired.
Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well
as the documents which are generally communicated to the accused by virtue of the laws in
force in the armed forces of the Detaining Power, shall be communicated to the accused
prisoner of war in a language which he understands, and in good time before the opening of
the trial. The same communication in the same circumstances shall be made to the advocate
or counsel conducting the defence on behalf of the prisoner of war.
The representatives of the Protecting Power shall be entitled to attend the trial of the case,
unless, exceptionally, this is held in camera in the interest of State security. In such a case the
Detaining Power shall advise the Protecting Power accordingly.
203Id. (“The representatives of the Protecting Power shall be entitled to attend the trial of the
case, unless, exceptionally, this is held in camera in the interest of State security.”).
204GPW art. 106:
Every prisoner of war shall have, in the same manner as the members of the armed forces of
the Detaining Power, the right of appeal or petition from any sentence pronounced upon him,
with a view to the quashing or revising of the sentence or the reopening of the trial. He shall
be fully informed of his right to appeal or petition and of the time limit within which he may
do so.

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humane conditions.205 Special Provisions apply in case the offense is punishable by
death. A POW sentenced to death may not be executed until six months after the
Protecting Power has received the required notification under art. 107.206 The court
must be informed that the POW owes no allegiance to the Detaining Power,
encouraging the court to exercise leniency in sentencing on that basis.207
Civilians.
A belligerent state may exercise jurisdiction over civilians in occupied territory
subject to section III of the GC. However, the penal laws of the occupied territory
remain in force unless the Occupying Power repeals or suspends them “in cases
where they constitute a threat to its security or an obstacle to the application of the
present Convention.”208 The Occupying Power may also institute such laws that are
essential to maintaining order and security, and to carrying out its obligations under
the GC,209 but these may not be enforced retroactively.210 In addition, “[n]o sentence
shall be pronounced by the competent courts of the Occupying Power except after a
regular trial.”211 All accused persons have the right to be “promptly informed, in
writing, in a language which they understand, of the particulars of the charges
preferred against them, and shall be brought to trial as rapidly as possible.”212 The
accused has the right to counsel of choice and an interpreter, the right to present
evidence necessary to his defense,213 and the right to appeal a sentence.214 These
provisions apply not only in occupied territory but also, by analogy, to persons
interned on the territory of the Detaining Power.215
205GPW art. 108:
Sentences pronounced on prisoners of war after a conviction has become duly enforceable,
shall be served in the same establishments and under the same conditions as in the case of
members of the armed forces of the Detaining Power. These conditions shall in all cases
conform to the requirements of health and humanity.
206GPW art. 101.
207GPW art. 100.
208GC art. 64
209Id.
210See id. art. 65-66
211Id. art 71.
212Id.
213GC. art. 72.
214Id. art. 73.
215Id. art. 126 (applying arts. 71-76 by analogy to internees in the national territory of the
Detaining Power). It is arguable that this provision would also encompass detainees at
Guantánamo Bay, although the base is not technically U.S. territory.

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Protected persons have the additional right to have the Protecting Power notified
of the charges216 and may have a representative of that power attend the trial.217 If a
protected person is sentenced to death, the sentence may not be carried out prior to
six months after the Protecting Power is notified of the sentence.218
Chapter IX applies to civilian internees, and provides protection against
duplicate punishment.219 Violations of camp disciplinary rules may also be punished,
but they are not to be treated as crimes. Internees may not be punished for a simple
disciplinary breach, including attempted escape,220 by confinement in a
penitentiary.221
Unlawful Belligerents.
The term “unlawful belligerents” is not found in the Geneva Conventions.
Therefore, rules applicable to the trials of unlawful belligerents depend on whether
the person charged is considered to be a civilian or whether a separate standard,
found outside of the Geneva Conventions, applies. If the minimum standards
outlined in Common Article 3 apply, the following are forbidden:
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.
Security Measures
Many nations impose upon their soldiers the duty to make every effort to escape
from captivity if they should fall into the hands of the enemy.222 At the same time,
the Detaining Power will undoubtedly seek to take all possible precautions to prevent
escape.223 The Geneva Conventions regulate the use of deadly force to prevent an
escape, requiring warning prior to the firing of any shots.224 Attempted escape or
aiding and abetting such an attempt is treated as a disciplinary matter only; once an
escape is deemed to be “successful,” in the case the prisoner is recaptured, no
216Id. art 71.
217Id. art 74.
218Id. art 75.
219Id.art. 118.
220GC art. 122.
221Id. art. 124.
222See LEVIE, supra note 28, at 403.
223See id. (noting POWs will likely be placed in enclosures made “as escape-proof as
humanly possible”).
224GPW art. 42 provides:
The use of weapons against prisoners of war, especially against those who are escaping or
attempting to escape, shall constitute an extreme measure, which shall always be preceded
by warnings appropriate to the circumstances.

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punishment is permitted.225 A prisoner who has attempted escape may be subjected
to extraordinary surveillance measures.226
It is unclear where the line between security measures and punitive measures
lies. POWs are entitled to living quarters similar to those of their guards.227 In
contrast, press reports have described the facilities at Guantánamo Bay as similar to
a “high security prison.” The present living conditions may be subject to criticism as
punitive measures. The Department of Defense has added a new medium-security
facility, with cells that can hold up to 20 detainees, to house those deemed to pose
less of a threat to the United States but cannot yet be repatriated.
The Conventions allow prisoners to be searched and weapons confiscated, but
personal property must be returned to them once internment ends.228 U.S. Army
regulations require detainees to be searched for weapons and other contraband
immediately after their capture, prior to a determination of the captive’s status.
Repatriation
One argument advanced to support denying POW status to the detainees is that
the United States would be required to return them to their countries of origin once
hostilities cease. Some observers argue that this may not be such an immediate
requirement, and question whether hostilities will have ceased when U.S. troops have
ceased combat operations in Afghanistan.
Under GPW art. 21, internment of POWs must cease when no longer necessary.
According to GPW art. 118, repatriation must occur “without delay at the cessation
of active hostilities.” The language of the 1929 Geneva Convention was not as
adamant, requiring only that parties should provide, in armistice agreements, for
repatriation of prisoners to occur “with the least possible delay after cessation of
hostilities.”229 However, there is an exception for prisoners who are charged with or
225 Id. art. 91-95.
226GPW art. 92; GC art. 120.
227GPW art. 25 provides:
Prisoners of war shall be quartered under conditions as favourable as those for the forces
of the Detaining Power who are billeted in the same area. The said conditions shall make
allowance for the habits and customs of the prisoners and shall in no case be prejudicial to
their health.
The foregoing provisions shall apply in particular to the dormitories of prisoners of war as
regards both total surface and minimum cubic space, and the general installations,
bedding and blankets.
The premises provided for the use of prisoners of war individually or collectively, shall be
entirely protected from dampness and adequately heated and lighted, in particular
between dusk and lights out. All precautions must be taken against the danger of fire.
228See LEVIE, supra note 28, at 110.
229 See 1929 Geneva Convention Relative to the Treatment of Prisoners of War art. 75, 47
Stat. 2021 (July 27, 1929).

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have been convicted of an indictable crime.230 There is also case law suggesting the
obligation to repatriate is not automatic and immediate. The 9th Circuit declined to
grant freedom to a POW captured in Italy during the Second World War, who sought
release partly on the grounds that hostilities had ceased.231 The court noted that no
peace treaty had yet been negotiated between Italy and the United States, and was not
swayed by the fact that Italy had by that time changed sides. It appears to have
remained international state practice to provide for repatriation of prisoners of war
by express agreement.232
Interned civilians must also be released “as soon as the reasons which
necessitated [their] internment no longer exist,”233 which will occur “as soon as
possible after the close of hostilities.”234 There is an exception for internees against
whom penal proceedings are pending or who have been convicted and sentenced for
non-disciplinary offenses.235 These internees may be detained “until the close of such
proceedings and, if circumstances require, until the completion of the penalty.”236
Right to Redress
The proper treatment of prisoners is the responsibility of the detaining power
and the individuals directly responsible for their conditions. Mistreatment of
prisoners of war may incur liability under both international norms and the UCMJ.
It is possible that the refusal to hold tribunals to determine the legal status and rights
of detainees may also contravene the law of war.237 Detainees have the right to protest
230See GPW art. 119:
Prisoners of war against whom criminal proceedings for an indictable offence are pending
may be detained until the end of such proceedings, and, if necessary, until the completion
of the punishment. The same shall apply to prisoners of war already convicted for an
indictable offence.
231See In re Territo, 156 F.2d 142 (9th Cir. 1946).
232See, e.g. POW DOCUMENTS, supra note 117, at 796, (noting that it took nearly two years
after hostilities between Pakistan and India ended in 1971 before Pakistani prisoners of war
were repatriated).
233GC art. 132.
234Id. art. 133.
235GC art. 133.
236 Id.
237Failure to afford a prisoner a regular trial in accordance with the 1929 Geneva Convention
resulted in some convictions by post-World War II tribunals. Japan, for example, adopted
a policy proclaiming enemy airmen who participated in bombing raids against Japanese
territory to be violators of the law of war and subject to execution. This “Enemy Airmen
Act” resulted in the deaths of many captured American fliers after allegedly sham trials. See
Trial of Lieutenant General Shigeru Sawada and Three Others, 5 LRTWC 1 (U.S. Military
Commission, Shanghai 1946), reprinted in POW DOCUMENTS, supra note 117, doc. no. 78
(four Japanese officers convicted of denying fair trial to captured “Doolittle Raiders”); Trial
of Lieutenant General Harukei Isayama and Seven Others, 5 LRTWC 60 (U.S. Military
Commission, Shanghai 1946), reprinted in POW DOCUMENTS, supra note 117, doc. no. 82
(continued...)

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their treatment to the detaining power or to a neutral power or organization serving
as the protecting power,238 and may not be punished for having asserted a grievance,
even where it is considered unfounded.239 (In this case, the role of protector appears
to be filled by the International Committee of the Red Cross.) The detainees may
also have recourse to federal courts to enforce their rights under the Geneva
Conventions.240 Other signatory states are obligated to “ensure respect” for the
Conventions “in all circumstances,”241 meaning that other states may issue diplomatic
challenges on behalf of the detainees, and may even find a cause of action in
domestic courts to challenge the detention.242
Whether the detainees will have the right to protest the legality of their detention
itself likely depends on whether federal courts accept jurisdiction to hear petitions for
habeas corpus brought on their behalf. One such petition was dismissed by a district
court in California for lack of standing because the group of lawyers and activists
who filed the petition did not have a significant enough relationship to the detainees
to qualify as “next friends.”243 Another was dismissed in the 9th Circuit for lack of
jurisdiction over aliens at Guantánamo Bay.244 The U.S. District Court for the District
of Columbia denied jurisdiction over another group of petitioners filed by relatives
of some of the detainees. That case, Rasul v. Bush,245 was affirmed by the
D.C.Circuit, and has been appealed to the Supreme Court.
So far, the courts have agreed with the Justice Department that the 1950
Supreme Court decision in Johnson v. Eisentrager246 forecloses the federal courts’
jurisdiction to hear a petition for habeas corpus because the detainees have never
237(...continued)
(conviction for “permitting and participating in an illegal and false trial” of American
POWs).
238 GPW art. 78.
239 Id.
240 See U.S. v. Noriega, 808 F.Supp.791 (S.D.Fla. 1992)(holding the GPW to be a self-
executing treaty). But see Johnson v. Eisentrager 339 U.S. 763 (1950) (denying petition for
habeas corpus to alien enemies who had not entered U.S. territory).
241GPW art. 1.
242Such a suit was dismissed in Great Britain. See John Chapman, ‘Taliban’ Briton Loses His
Court Bid, DAILY EXPRESS (United Kingdom), Mar. 16, 2002, at 47. The mother of a British
detainee brought a case claiming her son, one of the detainees held at Guantanamo Bay, has
wrongly been denied POW status, was interrogated by British security services and has been
denied legal representation. The High Court rejected the challenge as essentially a “political
question.”
243 Coalition of Clergy v. Bush, 189 F.Supp.2d, 1036 (C.D.Cal. 2002), vacated in part by
310 F.3d 1153 (9th Cir. 2002), cert. denied __ U.S. __, 123 S.Ct. 2073 (2003).
244Gherebi v. Bush, 262 F.Supp.2d 1064 (C.D.Cal.2003).
245215 F.Supp.2d 55 (D.D.C. 2002), aff’d sub nom. Al Odah v. United States, 321 F.3d 1134,
(D.C.Cir. 2003).
246339 U.S. 763 (1950).

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entered any territory under U.S. sovereignty.247 In Eisentrager, the Supreme Court
affirmed the convictions of German citizens who had been convicted by U.S. military
commissions set up in China of carrying out belligerent acts after peace with
Germany had been established. The Court held the federal courts did not have
jurisdiction to hear the case because the writ of habeas corpus was not available to
“enemy alien[s], who at no relevant time and in no stage of [their] captivity [have]
been within [the court’s] jurisdiction.”248 The Supreme Court noted further that:
The privilege of litigation has been extended to aliens, whether friendly or enemy,
only because permitting their presence in the country implied protection. No such
basis can be invoked here, for these prisoners at no relevant time were within any
territory over which the United States is sovereign and the circumstances of their
offense [and] their capture ... were all beyond the territorial jurisdiction of any court
of the United States.249
There are several distinguishing factors relative to the suit on behalf of the
detainees in Cuba that may prove important if the determination ever reaches the
Supreme Court. First, the detainees are not “enemy aliens” in the same sense of the
petitioners in Eisentrager, because they are not citizens of a hostile nation against
whom Congress has declared war.250 An enemy alien is defined by statute as all
“natives, citizens, denizens, or subjects” of a hostile nation or government during
time of declared war.251 While the Alien Enemy Act pertains only to aliens residing
or located within the United States, the Eisentrager Court relied in part on the
247189 F.Supp.2d at 1048 (concluding that Eisentrager establishes that whether Guantánamo
detainees “can establish jurisdiction in any district court depends not on the nature of their
claims but on whether the Naval Base at Guantánamo Bay is under the sovereignty of the
United States”); Rasul at 68. On appeal in Coalition of Clergy, the 9th Circuit vacated the
portion of the lower court’s decision as to the applicability of Eisentrager. 310 F.3d 1153
(9th Cir. 2002)
248339 U.S. at 767.
249Id. at 777-78.
250 See Eisentrager at 769 (“In the primary meaning of the words, an alien friend is the
subject of a foreign state at peace with the United States; an alien enemy is the subject of
a foreign state at war with the United States.”)(citing Techt v. Hughes, 229 N.Y. 222, 229,
128 N.E. 185, 186, cert.denied 254 U.S. 643 (1920)). The D.C. Circuit held that the
detainees are not enemy aliens, but found that fact to be immaterial. Al-Odah, 321 F.3d at
1141 (“The law of the circuit now is that a ‘foreign entity without property or presence in
this country has no constitutional rights, under the due process clause or otherwise.’”(citing
People’s Mojahedin Org. v. Dep’t of State, 182 F.3d 17, 22 (D.C.Cir.1999))).
251 The Enemy Alien Act, 50 U.S.C.§ 21 provides:
Whenever there is a declared war between the United States and any foreign nation or
government, or any invasion or predatory incursion is perpetrated, attempted, or
threatened against the territory of the United States by any foreign nation or government,
and the President makes public proclamation of the event, all natives, citizens, denizens,
or subjects of the hostile nation or government, being of the age of fourteen years and
upward, who shall be within the United States and not actually naturalized, shall be liable
to be apprehended, restrained, secured, and removed as alien enemies.

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authority of that Act to determine the legal disabilities of petitioner enemy aliens.252
However, courts in the D.C. Circuit and 9th Circuit have found that Eisentrager
applies to all aliens outside the territory of the United States.253
Second, the Eisentrager petition challenged the jurisdiction of the military
commission to try the petitioners for violations of the law of war, but did not
challenge their status as enemy aliens. The detainees in Cuba, who have not been
charged with any violation against the law of war or any other crime, presumably
would challenge the detention itself and their status as “unlawful enemy
combatants.”254 The Eisentrager Court noted that the threshold question of status
would be one for judicial determination:
Courts will entertain [the enemy alien’s] plea for freedom from Executive
custody only to ascertain the existence of a state of war and whether he is an
alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional
elements have been determined, courts will not inquire into any other issue as to
his internment.255
Under similar analysis, the detainees at Guantánamo Bay would have access to
federal courts at least to establish their status as enemy belligerents or POWs.
However, the D.C. Circuit found that since no alien outside the sovereign territory
of the United States has the right to petition for a writ of habeas corpus, it is
immaterial under what status they are detained.256
252339 U.S. at 773. See also United States v. Tiede, 86 F.R.D. 227 (1979) (order granting
Polish national right to a jury trial in non-Article III American court sitting in West Berlin;
distinguishing Eisentrager based on alien enemy status of petitioners in that case).
253Al Odah v. United States, 321 F.3d 1134, (D.C.Cir. 2003); Gherebi v. Bush, 262
F.Supp.2d 1064 (C.D.Cal.2003). But see Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206, 213 (1953)(restrained alien “may by habeas corpus test the validity of his
exclusion” regardless of whether he is detained outside the United States); Chin Yow v.
United States, 208 U.S. 8 (1908)(alien denied entry had right to habeas corpus to challenge
executive determination that he had no statutory right to enter United States);Nishimura
Ekiu v. United States, 142 U.S. 651, 660 (1892)(“An alien immigrant, prevented from
landing by any such officer claiming authority to do so under an act of congress, and thereby
restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether
the restraint is lawful.”); United States v. Jung Ah Lung, 124 U.S. 621 (1888)(refusal to
allow a Chinese passenger on board a ship to land in San Francisco was a restraint of liberty
in violation of a statutory right and was subject to habeas corpus statute).
254See 339 U.S. at 795. The Eisentrager Court expressly held “that the Constitution does not
confer a right of personal security or an immunity from military trial and punishment upon
an alien enemy engaged in the hostile service of a government at war with the United
States.” The detainees might argue that the indefinite detention of aliens who are neither
prisoners of war nor charged with any crime is distinguishable from the case of admitted
alien enemies charged and convicted for offenses.
255Id. at 775.
256Al Odah v.United States 321 F.3d 1134, 1141 (“We cannot see why, or how, the writ may
be made available to aliens abroad when basic constitutional protections are not.”).
However, it may be argued that “excludable” aliens, those who have not entered the United
(continued...)

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Third, the Geneva Conventions of 1949, not yet in force when Eisentrager was
decided, may give the detainees enforceable rights to challenge their treatment.257
The Eisentrager Court declined to take into consideration whether the petitioners had
been tried in violation of the 1929 Geneva Convention on Prisoners of War based on
its earlier interpretation that that Convention applied only to disciplinary offenses
committed during capture and not to pre-capture violations of the law of war.258
However, the 1949 Geneva Convention was drafted to clarify that it applies to trials
for any offense, whether committed during or prior to internment.259 Thus, the claim
under the Geneva Convention could bring it within the statutory jurisdiction for
petitions for habeas corpus, which permits anyone alleged to be “in [U.S] custody
in violation of the Constitution or laws or treaties of the United States” to submit a
petition.260 However, under the view that Eisentrager applies to all aliens overseas,
most of the Eisentrager opinion is dicta, and anything distinguishing the new cases
is not relevant.261
The Al Odah court also determined that the U.S. naval station at Guantánamo
Bay is not sovereign territory of the United States, and that its status as a U.S.
military base does not make it “de facto sovereign” to bring it within the jurisdiction
of U.S. courts for the purpose of granting habeas review to aliens detained there.262
The court rulings in the Guantánamo cases have been subject to criticism
internationally.263 Opponents of the detainee policy have objected that the opinions
would allow the President to detain any alien arrested overseas by U.S. agents,
without ever having to prove before a court of law that the detention is justified,
regardless of whether the detention is based on the law of war, suspicion of a crime,
or some other purpose.
256(...continued)
States, do not have the same constitutional rights as “deportable” aliens, yet they have been
permitted to seek habeas relief in courts. See, e.g., Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206 (1953)(excludable alien granted habeas corpus review to determine
whether any constitutional or statutory right had been violated, although relief was denied
based on the merits).
257See U.S. v. Noriega, 808 F.Supp.791, 797-99 (S.D.Fla. 1992)(affirming Noriega’s right
to enforce POW rights in federal court).
258339 U.S. at 789-90 (citing Ex parte Quirin, 317 U.S. 1, 37 (1941); In re Yamashita, 327
U.S. 1 (1946)).
259See LEVIE, supra note 28, at 379-80.
26028 U.S.C. § 2441(c)(3) (2003). There is no explicit statutory requirement that the
petitioner be in custody on territory over which the United States exercises sovereignty.
261See 339 U.S. at 792 (Black, J., dissenting)(arguing Part IV of the opinion, which discusses
sufficiency of petition in making out claims based on alleged violations of the Constitution
and GPW, is irrelevant to Court’s finding that it had no jurisdiction to consider the petition
at all).
262321 F.3d at 1144.
263See, e.g., Council of Europe, supra note 10, at para. 13:
The Assembly further regrets that the United States is maintaining its contradictory
position, claiming on the one hand that Guantánamo Bay is fully within US jurisdiction,
but on the other, that it is outside the protection of the American Constitution.

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Congress’ Role
The Constitution provides Congress with ample authority to legislate the
treatment of battlefield detainees in the custody of the U.S. military.
The
Constitution empowers Congress to make rules regarding capture on land or water,264
to define and punish violations of international law,265 and to make regulations to
govern the armed forces.266 Congress also has the constitutional prerogative to
declare war,267 a power it has not yet exercised with regard to the armed conflict in
Afghanistan. By not declaring war, Congress has implicitly limited some presidential
authorities.268
Despite the constitutional powers listed above, Congress has not generally taken
an active rule in prescribing the treatment of prisoners of war. Existing statutes
concerning enemy prisoners of war are limited to providing for the use of DoD funds
to pay expenses incident to the maintenance, pay, and allowances of persons in
custody of any military department,269 to provide for the disposition of the remains
of enemy prisoners of war and interned enemy aliens who die in the custody of a
military department,270 to penalize those who aid the escape of an enemy prisoner,271
and to exempt prisoners of war from the entitlement to claim of compensation for
injury or death resulting from war-risk hazard.272 However, prisoners of war are
covered under the jurisdiction of the Uniform Code of Military Justice (UCMJ).273
The UCMJ does not indicate whether detainees who are determined not to be
prisoners of war are covered.
The Administration has asserted that the war on terror is a new kind of conflict,
requiring a new set of rules and definitions. It has been observed that the nature of
the hostilities and U.S. objectives borrow some characteristics from the realm of law
enforcement and others from a model based on conventional war. Consequently, the
role of Congress might be seen as particularly important in providing a definition and
a set of boundaries to shape how such a war is to be fought.
264 U.S. CONST. art. I, § 8, cl. 11
265 Id. art. I, § 8, cl. 10.
266 Id. art. I, § 8, cl. 14.
267 Id. art. I, § 8, cl. 11.
268 See Declarations of War and Authorizations for the Use of Military Force: Background
and Legal Implications, CRS Report RL31133 (Sept. 27, 2001).
269 10 U.S.C. § 956(5).
270 10 U.S.C. § 1483.
271 18 U.S.C. § 757.
272 42 U.S.C. § 1701.
273 See 10 U.S.C. § 802(a)(9).

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Two bills have been introduced in the House of Representatives, and one in the
Senate, that would address the detention of persons detained in connection with the
war on terrorism. H.R. 1290 and its companion bill, title I(C) of S. 22, would
authorize the President to convene military tribunals to try non-U.S. persons not
eligible for treatment as POWs who are determined by the President to be “members
of al Qaeda who knowingly planned, authorized, committed, aided, or abetted one
or more terrorist acts against the United States, or members of other terrorist
organizations who knowingly cooperated with members of al Qaeda in planning,
authorizing, committing, aiding, or abetting one or more terrorists acts against the
United States.” Section 3. H.R. 1290 and S. 22 would authorize the detention of such
persons based as long as the President certifies that armed hostilities are ongoing in
Afghanistan or elsewhere, or that the detainee is under investigation with a view
toward prosecution, a prosecution, or a post-trial proceeding before a military
tribunal.
S. 22 further limits the authority to cover persons “apprehended in
Afghanistan, fleeing from Afghanistan, or in or fleeing from any other place outside
the United States where there is armed conflict involving the Armed Forces of the
United States.” (Section 1303(a)(3)). Under both bills, the certification would expire
after 180 days, but could be renewed. Detainees would be entitled to at least a
summary of evidence used for the certification to detain them or that might tend to
prove the detention is unjustified, and would have the opportunity to challenge their
detention before the D.C. Circuit. (Section 5(b-c)). The authority would expire after
Dec. 31, 2005. H.R. 1029 would authorize the detention of U.S. persons as “enemy
combatants,” under similar procedures to those proposed in H.R. 1290, but does not
authorize their trial by military tribunals.
Congress’ role may take on greater importance in the event that federal courts
decline jurisdiction to hear challenges by the detainees. As the Supreme Court noted
in Johnson v. Eisentrager, its holding was not
that these prisoners have no right which the military authorities are bound to
respect. The United States, by the [1949] Geneva Convention ... concluded an
agreement upon the treatment to be accorded captives. These prisoners claim to be
and are entitled to its protection. It is, however, the obvious scheme of the
Agreement that responsibility for observance and enforcement of these rights is
upon political and military authorities. Rights of alien enemies are vindicated under
it only through protests and intervention of protecting powers as the rights of our
citizens against foreign governments are vindicated only by Presidential
intervention.274
274 Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).

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