Order Code RL31367
CRS Report for Congress
Received through the CRS Web
Treatment of “Battlefield Detainees”
in the War on Terrorism
Updated November 15, 2005
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
In June, 2004, the U.S. Supreme Court ruled in Rasul v. Bush that U.S. courts
have jurisdiction to hear challenges on behalf of persons detained at the U.S. Naval
Station in Guantanamo Bay, Cuba, in connection with the war against terrorism. The
Court overturned a ruling that no U.S. court has jurisdiction to hear petitions for
habeas corpus on behalf of the detainees because they are aliens detained abroad, but
left questions involving prisoners’ rights and status unanswered. The 9/11
Commission recommended a common coalition approach to such detention. The
Senate voted to deny detainees access to federal courts to file habeas petitions
(S.Amdt. 2524 to S. 1042, “Graham Amendment”), but to allow limited appeals.
The Bush Administration earlier deemed all of the detainees to be “unlawful
combatants,” who may, according to Administration officials, be held indefinitely
without trial or even if they are acquitted by a military tribunal. Fifteen of the
detainees have been designated as subject to the President’s Military Order of
November 13, 2001, making them eligible for trial by military commission. In
answer to the Rasul decision, the Pentagon instituted Combatant Status Review
Tribunals to provide a forum for detainees to challenge their status as “enemy
combatants.” The Pentagon had earlier announced a plan for annual reviews to
determine whether detainees may be released without endangering national security.
The President’s decision to deny the detainees prisoner-of-war (POW) status
remains a point of contention, especially overseas and among human rights
organizations, with some arguing that it is based on an inaccurate interpretation of
the Geneva Convention for the Treatment of Prisoners of War (GPW), which they
assert requires that all combatants captured on the battlefield are entitled to be treated
as POWs until an independent tribunal has determined otherwise. The publication
of executive branch memoranda documenting the internal debate about the status of
prisoners has evoked additional criticism of the Bush Administration’s legal position.
The Geneva Conventions of 1949 create a comprehensive legal regime for the
treatment of detainees in war. Members of a regular armed force and certain others
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 “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 U.S.’ practice, and describes how the
detainees’ status might affect their rights and treatment. The report reviews the
current status of detainees’ court cases and summarizes activity of the 108th and 109th
Congress related to detention in connection with the war against terrorism. (H.R.
3038, S. 12, H.R. 2863, S. 1042, H.R. 3003).

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Current Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Critics’ Views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Law of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Characterizing the Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Authority to Detain during War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Prisoners of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Civilian Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Unlawful Belligerents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Interpretation of GPW Article 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
GPW Art. 4A(1): Does Al Qaeda Form “Part of” the Armed Forces
of a Party to the Conflict? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
GPW Art. 4A(2): Does Al Qaeda “Belong to” a Party to the
Conflict? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
The Four Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Determining Status under GPW Art. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Treatment of Detainees at Guantánamo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Interrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Trial and Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
POWs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Unlawful Belligerents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Security Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Repatriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Right to Redress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Congress’s Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
H.R. 3038 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
S. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Independent Commission Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . 55

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Treatment of “Battlefield Detainees” in the
War on Terrorism
Background
The U.S. Supreme Court decided at the end of its 2003 - 2004 term that U.S.
courts have jurisdiction to hear challenges on behalf the approximately 550 persons
detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the
war against terrorism.1 The decision overturned the holding of the Court of Appeals
for the D.C. Circuit, which had accepted the Administration’s argument that no U.S.
court has jurisdiction to hear petitions for habeas corpus by or on behalf of the
detainees because they are aliens and are detained outside the sovereign territory of
the United States.2 In response to the Court’s ruling, the Department of Defense
(DOD) instituted a new form of tribunal at Guantanamo Bay to allow detainees an
opportunity to contest their designation as “enemy combatants,” similar to the
planned administrative review procedure DOD had announced that would review the
necessity of individuals’ continued detention.3 More than a dozen petitions for
habeas corpus are pending before the federal District Court for the District of
Columbia. In one case, a federal judge ruled that a petitioner must be treated as a
prisoner of war until a competent tribunal has decided otherwise, and that a military
commission may not proceed with his trial,4 leading the government to suspend
temporarily the operation of military tribunals. However, the D.C. Circuit Court of
Appeals overturned that decision, allowing DoD to restart the military commissions.
The Supreme Court has granted certiorari to review that decision. Two other district
judges issued contradicting opinions as to whether the detainees have any rights
enforceable in federal court; these decisions have also been appealed.5 The Senate
approved an amendment introduced by Senator Graham to S. 1042, the National
1 Rasul v. Bush, 124 S. Ct. 2686 (2004). For a summary of Rasul and related cases, see CRS
Report RS21884, The Supreme Court and Detainees in the War on Terrorism: Summary and
Analysis of Decisions, by Jennifer K. Elsea.
2 Al Odah v. United States, 321 F.3d 1134 (D.C.Cir 2003), rev’d sub nom Rasul v. Bush,
124 S.Ct. 2686 (2004).
3 See Press Release, Department of Defense, DoD Announces Draft Detainee Review Policy
(Mar. 3, 2004), available at [http://www.defenselink.mil/releases/2004/
nr20040303-0403.html](last visited July 27, 2005).
4 Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D.D.C.,2004), rev’d 413 F.3d 33 (D.C. Cir.
2005), cert. granted 2005 U.S. LEXIS 8222 (Nov. 7, 2005).
5 Khalid v. Bush, 355 F.Supp.2d 311 (D. D.C. 2005)(detainees have no enforceable rights);
Al Odah v. United States, No. CIV.A. 02-828(CKK) (D. D.C. Oct. 20, 2004) (detainees may
assert due process rights). See CRS Report RS22173, Detainees at Guantánamo Bay, by
Jennifer K. Elsea.

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CRS-2
Defense Authorization Act for FY2006, that would, if enacted, require the Secretary
of Defense to submit a report to the congressional defense committees setting forth
the procedural rules for determining whether individual detainees are properly
detained as enemy combatants and give jurisdiction to the D.C. Circuit Court of
Appeals to hear appeals of those determinations, but would foreclose the detainees’
ability to petition for habeas corpus in any court,6 effectively reversing the Rasul
decision.
The detention and treatment of the suspected enemy combatants at Guantanamo
Bay has been a consistent source of friction for the Bush Administration since it
began transporting prisoners there in January, 2002. After criticism from human
rights organizations and many foreign governments regarding the determination that
the Geneva Conventions of 1949 do not apply to the detainees there,7 President Bush
shifted position with an announcement that Taliban fighters are covered by the 1949
Geneva Conventions, while Al Qaeda fighters are not.8 Taliban fighters are not,
however, treated as prisoners of war (POW) because they reportedly fail to meet
international standards as lawful combatants.9 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.10 The President proclaimed, in a secret memorandum issued
February 7, 2002, that “[a]s a matter of policy, the United States Armed Forces shall
continue to treat detainees humanely and, to the extent appropriate and consistent
with military necessity, in a manner consistent with the principles of Geneva.”11
The Bush Administration deems 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 9/11
6 S.Amdt. 2515 to S. 1042, printed at 151 CONG. REC. S12655 (daily ed. Nov. 10,
2005)(“Graham Amendment”), later amended by S.Amdt. 2524, 151 CONG. REC. S12771
(daily ed. Nov. 14, 2005).
7 See 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).
8 See Mike Allen and John Mintz, Bush Makes Decision on Detainees, WASH. POST, Feb.
8, 2002, at A1.
9 See Press Conference, Department of Defense, Secretary Rumsfeld and General Myers,
Feb. 8, 2002, available at [http://www.defenselink.mil/transcripts/2002/
t02082002_t0208sd.html](last visited July 27, 2005).
10 See Fact Sheet, White House Press Office, Feb. 7, 2002, available at
[http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html](last visited July 27,
2005).
11 See Memorandum from the President of the United States, to the Vice President, et al.,
Regarding the Humane Treatment of al Qaeda and Taliban Detainees (February 7, 2002),
available at [http://www.washingtonpost.com/wp-srv/nation/documents/020702bush.pdf]
(last visited July 27, 2005).

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CRS-3
Commission, apparently finding the international discord over the treatment and
status of the detainees to be harmful to the U.S. effort to thwart terrorism,
recommended the development of a common coalition approach toward the detention
and humane treatment of captured terrorists.12
Current Status
Although some 250 detainees (including three children under the age of 16)13
have been released from the detention facilities at the U.S. Naval Station in
Guantánamo Bay, Cuba, and some detainees are 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. The release of
government documents regarding the determination that the detainees are not entitled
to protection under the Geneva Convention and outlining permissible interrogation
techniques has evoked even more criticism.
The administrative proceedings implemented to review the status of detainees,
called the Combatant Status Review Tribunal (CSRT), appear designed to satisfy the
Supreme Court’s Hamdi ruling, although the government has argued in court that the
Guantánamo detainees, as aliens detained outside the territory of the United States,
are not entitled to any process beyond the initial screening process used to determine
whether detainees should be sent to Guantánamo. Critics view the CSRT
proceedings as insufficient to satisfy Hamdi, which many believe applies to all
detainees regardless of citizenship and place of detention.14 CSRTs have been
completed for all detainees, and have confirmed the status of 520 enemy combatants.
Of the 38 detainees determined not to be enemy combatants, 23 have been transferred
to their home States.
12 Final Report of the National Commission on Terrorist Attacks upon the United States 379-
80 (authorized ed. 2004)[hereinafter “9/11 Report”]It stated:
The United States should work with friends to develop mutually agreed-on principles for
the detention and humane treatment of captured international terrorists who are not being
held under a particular country’s criminal laws. Countries such as Britain, Australia, and
Muslim friends, are committed to fighting terrorists. America should be able to reconcile
its views on how to balance humanity and security with our nation’s commitment to these
same goals.
13 See Department of Defense, Press Release, Transfer of Juvenile Detainees Completed,
Jan. 29, 2004) available at [http://www.defenselink.mil/releases/2004
/nr20040129-0934.html](last visited July 27, 2005). These detainees had been housed in
special facilities apart from the general prison population, known as Camp Iguana, where
they received schooling and were allowed to watch videos and play soccer. See John Mintz,
U.S. Releases 3 Teens From Guantanamo, WASH. POST, Jan 30, 2004, at A01. There are
reportedly seven teenagers ages 16 and 17 who are housed within the general population.
See id.
14 See, e.g., Human Rights First Analyzes DOD’s Combatant Status Review Tribunals,
available at [http://www.humanrightsfirst.org/us_law/detainees/status_review_080204.htm];
Human Rights Watch, U.S.: Review Panels No Fix for Guantanamo, available at
[http://www.hrw.org/english/docs/2004/07/27/usdom9135_txt.htm](last visited July 27,
2005).

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CRS-4
Fifteen 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.15 Military lawyers have been appointed for four detainees who have
been charged and whose military commissions have begun.16 After engaging in
negotiations with the U.K. and Australia in an effort to satisfy those governments that
military commissions will be fair, the Administration reportedly gave its assurances
that the death penalty would not be sought and that any who were convicted may
serve their sentences in their home countries.17 Later, however, it was announced that
all of the British detainees and one Australian detainee will be returned to their home
countries.18
Critics’ Views
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).19 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
15 See Press Release, Department of Defense, Presidential Military Order Applied to Nine
more Combatants (July 7, 2004), available at [http://www.defenselink.mil/releases/
2004/nr20040707-0987.html](last visited July 27, 2005); Press Release, Department of
Defense, Military Commission Charges Approved (Nov. 7, 2005), available at
[http://www.defenselink.mil/releases/2005/nr20051107-5078.html](last visited Nov. 12,
2005).
16 Press Release, Department of Defense, Two Guantanamo Detainees Charged (Feb. 24,
2004), available at [http://www.defenselink.mil/releases/2004/nr20040224-0363.html](last
visited July 27, 2005). The military commissions were suspended pending the government’s
appeal in Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D.D.C.,2004). The two defendants are
charged with “willfully and knowingly joining an enterprise of persons who shared a
common criminal purpose and conspired with Osama bin Laden and others to commit the
following offenses: attacking civilians; attacking civilian objects; murder by an unprivileged
belligerent; destruction of property by an unprivileged belligerent; and terrorism.”
Australian detainee David Hicks was charged in June with “conspiracy to commit war
crimes; attempted murder by an unprivileged belligerent and aiding the enemy.” See Press
Release, Department of Defense, Guantanamo Detainee Charged (June 10, 2004) available
at [http://www.defenselink.mil/releases/2004/nr20040610-0893.html](last visited July 27,
2005). Charges against a fourth detainee were announced in July. For more information
about military commission jurisdiction and procedures, see CRS Report RL31600, The
Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and
Comparison with Proposed Legislation and the Uniform Code of Military Justice,by
Jennifer K. Elsea.
17 See id.
18 See Ed Johnson, British Guantanamo Detainees to Be Freed, AP, Jan. 11, 2005.
19 The Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949,
6 U.S.T. 3317 (hereinafter “GPW”).

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CRS-5
otherwise.20 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.21 The
UNHCR request to send independent experts to Guantánamo Bay to investigate
allegations of ill-treatment of detainees has not been granted. The European
Parliament asked the United Nations to pass a resolution requesting the establishment
of a tribunal to clarify the detainees’ legal status.22 No action has been taken on it,
but European Union countries voted as a bloc against a Cuban resolution calling on
the UNHCR to investigate U.S. detention operations at Guantanamo Bay.23 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.24 The Organization of American States’ Inter-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
20 See 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](last visited July 27, 2005).
21 See 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.english/issues/detention/annual.htm] (last visited July 27, 2005).
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 (2003)(citing numerous international treaties
and decisions).
22 See 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](last visited July 27, 2005).
23 Alexander G. Higgins, Guantanamo Bay: Bid to review U.S. base fails, MIAMI HERALD,
April 22, 2005, at A19.
24 Parliamentary Assembly of the Council of Europe, Rights of Persons Held in the Custody
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 July 27, 2005)[hereinafter “Council of Europe”].

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CRS-6
detainees.25 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.26 The decision to transfer the prisoners to Guantanamo Bay has also
been criticized as an effort to keep them “beyond the rule of law.”27
Applicable Law
The Geneva Conventions of 1949 create a comprehensive legal regime for the
treatment of detainees in an armed conflict.28 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.29 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
25 See 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.
26 See 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.
27 See, e.g., Lord Johan Steyn, Guantanamo Bay: The Legal Black Hole, Twenty-Seventh
FA Mann Lecture, British Institute of International and Comparative Law, 25 November
2003, at 10-11, available at [http://www.nimj.org/documents/guantanamo.pdf](last visited
July 27, 2005) (noting that the practice of sending prisoners to remote places to avoid the
application of the writ of habeas corpus had been practiced in England but was outlawed
in 1679).
28 Geneva 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”].
29 GPW art. 4A(2).

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CRS-7
Civilian Persons in Time of War (GC).30 These “unprivileged” or “unlawful
combatants” may be punished for acts of violence for which legitimate combatants
could not be punished.31 Some have argued that there is implied in the Geneva
Conventions a 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 would not necessarily incur criminal liability for
engaging in otherwise lawful combat.32 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, and that
such persons may be tried by military commission for any act in furtherance of an
unlawful belligerency.
The status of the detainees may affect their treatment in several ways. The
Administration has argued that granting the detainees POW status would 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.33
30 Geneva 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).
31 See Maj. Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerrillas,
and 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).
32 See 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”).
33 Military 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
(continued...)

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The White House’s legal position has been somewhat clarified by a series of
internal documents released by the White House and DOD in response to allegations
of detainee abuse at the Abu Ghraib prison in Iraq.34 The memoranda document the
internal debate about the applicability of the GPW to Al Qaeda and the Taliban.
They do not expressly explain the 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),35 but suggest
the view that the four criteria in GPW art. 4A(2) apply to regular armed forces as a
matter of customary international law.36 The documents also suggest that
Afghanistan, as a “failed state,” did not have a functional government with sufficient
control over the territory and citizenry to enable it to field a regular army.37 It is
unclear why, under this view, the conflict with the Taliban continues to qualify as an
international war under GPW art. 238 such that art. 4 would remain relevant.
State practice does not appear to support the conclusion that the armed forces
of states or organized rebel forces have been categorically denied eligibility for POW
33 (...continued)
to it, but this authority has not been invoked with respect to any of the detainees. See CRS
Report RL31191, Terrorism and the Law of War: Trying Terrorists as War Criminals before
Military Commissions, by Jennifer K. Elsea.
34 These documents can be found at [http://www2.gwu.edu/~nsarchiv/
NSAEBB/NSAEBB127](last visited July 27, 2005).
35 See Memorandum from Office of Legal Counsel to Alberto Gonzales Re: Status of
Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 (Feb. 7, 2002)
[hereinafter “OLC Memo Re: Taliban”], at 2 (dismissing discussion of Taliban under GPW
art. 4(A)(1) by noting that “the Taliban have described themselves as a militia, rather than
the armed forces of Afghanistan...”).
36 See id. Ambassador-at-Large for War Crimes Issues Pierre-Richard Prosper confirmed
this view
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 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 July 27, 2005).
37 See Memorandum from Assistant Attorney General Jay S. Bybee to Alberto Gonzales and
DOD General Counsel William J Haynes II Re: Application of Treaties and Laws to al
Qaeda and Taliban Detainees (Jan. 22, 2002)[hereinafter “Bybee Memo”].
38 See infra section on “Characterizing the Conflict.”

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status on the basis that the army did not comply completely with the law of war.39
Indeed, U.S. practice has been to accord POW status generously to irregulars,40 to
support such status for irregular forces at times,41 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.42 The Administration has also asserted that the Geneva Conventions are
obsolete when it comes to dealing with terrorists,43 but that it will continue to follow
the treaties’ principles.44
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.45 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,46 and may also accept the obligations
of the Conventions in return for more favorable treatment. Common article 3 of the
Geneva Conventions provides minimum protection during non-international conflicts
for all captives.47
39 See W. Hays Parks, Special Force’s Wear of Non-Standard Uniforms, 4 CHI. J. INT’L L.
493, 510-11 (2003)(noting disagreement among experts, but finding more support in
historical context and treaty language for the view that members of regular armed forces are
entitled to protection without regard to Geneva criteria unless captured as spies).
40 See, e.g., discussion about procedures adopted during Vietnam conflict, infra note 185
et seq.
41 See 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).
42 See 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”).
43 See Rumsfeld Press Conference, supra note 9.
44 See Press Release, DOD Joint Task Force Briefing on Detainee Operations at Guantanamo
Bay (Feb. 13, 2004), available at [http://www.defenselink.mil/transcripts/
2004/tr20040213-0443.html](last visited July 27, 2005).
45 See 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](last
visited July 27, 2005).
46 See Theodore Meron, The Geneva Conventions as Customary International Law, 81 AM.
J. INT’L L 348, 350 (1987).
47 The 1949 Geneva Conventions share several types of common provisions. The first three
articles of each Convention are identical. Common Article 3, note 63, infra, has been
(continued...)

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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.48 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.49 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 with belligerent rights.50
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.51
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
47 (...continued)
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).
48 See In re Territo, 156 F.2d 142 (9th Cir. 1946).
49 See 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.
50 See, e.g., Leila Nadya Sadat, Terrorism and the Rule of Law, 3 WASH. U. GLOBAL STUD.
L. REV. 135 (2004)(arguing that treating terrorists as “combatants” would seem to entail a
recognition of their belligerent rights).
51 See Mallison and Mallison, supra note 32, at 41(noting the law of war is dependent for
its observance on the common interests of participants).

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and proportionality.52 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.53 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.54 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.55
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.56 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;57 a derogation from the rules by one party does
not excuse breaches by another,58 although reprisal in proportion may be
permissible.59 Were this not the case, any deviation from the letter of the law could
52 See PICTET, supra note 45, 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”).
53 See DOCUMENTS ON THE LAWS OF WAR 1 (Adam Roberts and Richard Guelff, eds.
2000)(hereinafter “DOCUMENTS”).
54 See 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).
55 See 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.”).
56 See Mallison and Mallison, supra note 32, at 41 (noting that the central technique for
enforcing the law of war has been a system of interrelated rights and duties).
57 See PICTET, supra note 47, 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.
58 But see LEVIE, supra note 41, 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...”).
59 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.60
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.61
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
59 (...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.”).
60 See id. at 206.
61 See 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,”62 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,63 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.64 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”
62 GPW art. 2; GC art. 2.
63 Common 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.
64 See HANDBOOK, supra note 59, at 23.

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the armed conflict.65 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.66 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.67
According to the official commentary of the International Committee of the Red
Cross (ICRC),68 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.69 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,70 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,”71 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.72
65 See 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).
66 See 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).
67 See 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).
68 See 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.
69 See id. at 23.
70 GPW art. 4A(3).
71 HANDBOOK, supra note 59, at 42.
72 See 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.73 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 and for treating the
global war on terrorism as an international armed conflict.
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.74 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.75 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.76
Another possibility is that the war on terrorism is forging new international law
by recognizing or creating a new form of armed conflict, in which a state is
72 (...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).
73 See Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force,
18 WIS. INT’L L.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....”).
74 See Aldrich, supra note 30, at 893 (viewing the decision to treat the conflict with Al
Qaeda as a separate conflict to be correct).
75 See 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 30, at 894 (arguing that Al Qaeda is not capable of being party to a
conflict to which the Geneva Conventions or Protocols apply).
76 See 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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authorized to use armed force against members of a para-military group in self-
defense outside its own territory,77 not only to deflect immediate attacks but also to
initiate attacks against members of the group and their leaders in order to weaken or
eradicate it, at least so long as force is used on the territory of a consenting
government or territory not under the firm control of any national government.
Under this view, the traditional nexus between the rights and the obligations of
belligerents appear to be severed, so that a state may wage a full-fledged war against
persons not entitled to participate.
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,78 as well as civilians who pose a danger to the security of the
state,79 at least for the duration of hostilities.80 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.81 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
GPW82 and article 146 of GC.83
77 See Michael N. Schmitt, Bellum Americanum Revisited: U.S. Security Strategy and the
Jus ad Bellum, 176 MIL. L. REV. 364, 387 (2003) (“International reaction to the attacks of
9/11 and the military response they engendered complete the trend towards acceptance of
the use of force against terrorists as a form of self-defense.”).
78 See 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.
79 GC 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.
80 See GPW art. 21; PICTET, supra note 47, 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.”).
81 See PICTET, supra note 47, at 46.
82 GPW 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
(continued...)

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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 1949.84 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 Power85 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).86 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.87 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
82 (...continued)
forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and
regular trial prescribed in this Convention.
83 GC 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.
84 GPW 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 41,
at 69 (noting that predecessor rule during WWII resulted in the internment of more than
100,000 POWs in neutral countries).
85 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.
86 See LEVIE, supra note 41, at 69.
87 See DONALD A. WELLS, THE LAWS OF LAND WARFARE 127 (1992).

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rather than agents of a state, and they could be summarily shot.88 (Modern rules
require a fair criminal trial).89
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
journals, or contractors, if captured ....”90 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.91
Later conventions adopted the Lieber Code for international application and
clarified the rules, generally expanding their coverage and increasing their
protections.92 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.93 Army Regulation (AR) 190-8
prescribes the treatment to be accorded to prisoners based on their status.94 The U.S.
military also incorporates the law of war into rules of engagement (ROE) prepared
for specific combat operations,95 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.
88 See id.
89 See 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.
90 See id. at 127-28.
91 General Orders No. 100 para. 52.
92 See PICTET, supra note 45, 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.
93 See FM 27-10, supra note 30, para. 1 (listing treaties pertinent to land warfare to which
the United States is a party).
94 Department of the Army, AR 190-8, Enemy Prisoners of War, Retained Personnel,
Civilian Internees and Other Detainees (1997).
95 See Lt. Col. Marc L. Warren, Operational Law — A Concept Matures, 152 MIL. L. REV.
33, 51-57 (1996) (explaining function of ROE).

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Civilian Detainees. Civilians in occupied territory or the territory of a
belligerent may be interned during war if necessary for reasons of security.96 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 “protected person” under the GC, as long as that
state is a party to the GC.97 Nationals of a neutral or co-belligerent states within the
territory 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.98 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.”99 Furthermore, part II of the
GC applies universally without regard to the nationality of the civilians affected.100
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.101 There are
traditionally two types of unlawful belligerents: combatants who may be authorized
96 GC 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.”).
97 GC art. 4. Some interpret this to act as an exception to protected person status for aliens
within a belligerent state’s home territory, but not to apply in occupied territory, where all
persons are protected regardless of nationality, so long as they are not nationals of the
occupying power or of a state not a party to the Conventions.
98 GC art. 4.
99 See supra note 45; 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).
100 See GC art. 4 (stating “[t]he provisions of Part II are, however, wider in application, as
defined in Article 13”).
101 See Mallison and Mallison, supra note 32, at 42.

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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.
Spies, Saboteurs, and Mercenaries. The first type of unlawful
belligerents includes spies, saboteurs and mercenaries. These are persons who act on
behalf of a party to the conflict and probably under its orders, but are nonetheless
denied the status of lawful belligerents. They forfeit their entitlement to combat
immunity, and may be tried and punished according to the law then prevailing for
civilians. It has also been suggested that such persons may be detained without trial
in a status other than that of prisoners of war (or civilian internee), but it appears that
such detention was considered punitive rather than preventive in nature.102
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.103 If captured in the act, a spy
may be denied POW treatment, tried and possibly executed.104 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.105
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.106 If the acts are directed against civilian targets, they will likely be termed
acts of terrorism.107 Saboteurs retain the protection of the GC,108 and are entitled to
a fair and regular trial before punishment may be administered.109 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.110
102 See, e.g., WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 783 (2d. ed.
2000)(1886)(“Irregular armed bodies or persons not forming part of the organized forces of
a belligerent . . . are not in general recognized as legitimate troops or entitled, when taken,
to be treated as prisoners of war, but may upon capture be summarily punished even with
death.”)(emphasis added).
103 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 29, at paras. 75-78.
104 See id. art. 30.
105 See id. art. 31.
106 See FM 27-10, supra note 30, at para. 81 (citing GC III art. 4).
107 See 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].
108 See FM 27-10, supra note 30, at para. 73.
109 See GC IV art. 5; FM 27-10, supra note 30, at para. 248.
110 See LEVIE, supra note 41, 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
(continued...)

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GC art. 5 addresses the treatment of spies and saboteurs, applying different
standards depending upon whether the suspect is an alien in the territory of a
belligerent state or a person in occupied territory:
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 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.111 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
110 (...continued)
art. 5).
111 See 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.

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CRS-22
and loyalty.112 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,113 who may take
advantage of hostilities to conduct unlawful looting for their own enrichment without
regard for military necessity or the law of war.114 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.115
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.116 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.
112 See 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).
113 The 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
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).
114 See MCCOUBREY, supra note 55, at 145 (noting the “disturbing” role of mercenaries in
the conflict in Angola as “contract killers”).
115 See 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 41, 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 a national of capturing state or its allies is
subject to dispute).
116 See Joseph Samuels, Unconventional Prisoners, GLOBE & MAIL (Toronto), Jan. 24, 2002,
at A21 (opining that U.S. treatment of detainees is consistent with Geneva Protocols).

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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. They may also be interned without trial under GC
art. 5, but they do not lose their protected status as civilians under the GC.117
Civilians who owe loyalty to the detaining power might also find themselves charged
with treason or aiding the enemy.
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.118
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.119
These groups typically employ unorthodox guerrilla tactics emphasizing stealth and
surprise,120 and have received somewhat uneven treatment at the hands of states.121
In some conflicts, irregulars who could not prove their affiliation to an official
military were summarily shot as franc-tireurs.122 The lack of international consensus
117 See FM 27-10, supra note 30, 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
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.
118 See discussion on “Characterizing the Conflict,” supra.
119 See 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).
120 See Mallison and Mallison, supra note 32, at 42.
121 See generally TREATISE, supra note 119, 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).
122 See id. at 44 (citing the example of the Franco-Prussian War as impetus for advancements
(continued...)

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CRS-24
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.123 Guerrilla
tactics do not appear to be in and of themselves violative of international law.124 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, would not be punishable as unlawful
combatants. Like POWs, they would be 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 of criminal
activity.
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,125 even if it is a government
or “authority” not recognized by the opposing party,126 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.127 Under this view,
Taliban soldiers captured on the battlefield in Afghanistan are at least presumptively
lawful combatants entitled to POW status.
122 (...continued)
in the law of war allowing irregular fighters to qualify as belligerents).
123 See Baxter, supra note 31, at 327 (arguing the 1949 Geneva Conventions destroyed what
little certainty had existed in the law regarding status of irregulars).
124 See id. at 337 (noting distinction between those fighting for private gain and those
fighting because of genuine allegiance to a cause).
125 GPW art. 4A(1).
126 GPW art. 4A(3).
127 See LEVIE, supra note 41, 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).

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CRS-25
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. If the Taliban is not the armed forces of
Afghanistan, it would seem that such a determination would render the conflict non-
international, in which case GPW art. 4 is entirely irrelevant. However, if the conflict
is considered to remain international notwithstanding the status of the Taliban, then
presumably the following analysis would apply to the Taliban as well.
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.128 The language may have been included in order to ensure that
members of the United States National Guard, for example, are protected.129
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.130
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.131 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.132 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.133
128 See id. at 36 (noting, however, that states may not use domestic legislation to bring
otherwise unlawful combatants under the protection of the GPW).
129 See LEVIE, supra note 41, at 38.
130 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).
131 See Mallison and Mallison, supra note 32, at 52 (suggesting “belonging” element could
be satisfied by mere de facto relationship between the irregular unit and a state).
132 See Cassel, supra note 130, at 40 n.151 (distinguishing resistance movement in
international conflict from rebel groups in civil wars for the purpose of article 4).
133 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
(continued...)

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CRS-26
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.134 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
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.135
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.136 United States officials have argued
that the Taliban and Al Qaeda are intimately connected.137 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
133 (...continued)
invading army).
134 Military 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”).
135 But see Mallison and Mallison, supra note 32, at 71-72 (arguing status of PFLP under
Jordanian law was not relevant to the question of whether it “belonged to” a party).
136 See LEVIE, supra note 41, at 42 (citing GPW commentary suggesting that supply of arms
might be evidence of relationship).
137 See Press Conference, Department of Defense, Secretary Rumsfeld Media Availability
en route to Camp X-Ray, Jan. 27, 2002, available at [http://www.defenselink.mil/
transcripts/2002/t01282002_t0127sd2.html](last visited July 27, 2005).
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.

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CRS-27
combatants.138 Unfortunately, there is not much legal precedent that can aid in
interpreting and applying the criteria.139
The four criteria have their roots in the earliest expressions of the laws of war,
beginning with the Brussels Declaration140 and continuing nearly unchanged in the
Hague Convention Respecting the Laws and Customs of War on Land of 1907,141 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.142 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.143 The criteria originated as a compromise between states with strong
standing armies and weaker states whose defense might depend on armed citizens.144
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.145
138 See LEVIE, supra note 41, 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.
139 See TREATISE, supra note 119, 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”).
140 See LEVIE, supra note 41, 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).
141 Hague 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.”
142 See TREATISE, supra note 119, at 48 (attributing the reluctance to adopt any change in
the criteria to the sensitivity of the subject).
143 See 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”).
144 See 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”).
145 See id. at 52 (noting that the Hague Convention did not enact any new positive law, but
(continued...)

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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.146 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.147
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
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.148 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.”149 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.”150
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.151 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.152 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
145 (...continued)
only attempted to codify the existing rules and prohibit certain acts).
146 See 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).
147 See id. at 576 (describing official statements as well as practice with regard to different
types of guerrillas).
148 See id. at 578.
149 See id. (citing statement by James Bryce in the House of Commons).
150 See id. at 579.
151 See id. at 570-71.
152 See id. at 573.

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organize the forces and failed to supply the civilian fighters with proper
distinguishing emblems.153
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.154 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.
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.155
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
153 See 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.
154 See WINTHROP, supra note 103, at 778.
155 FM 27-10, supra note 30, para. 64a.

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up portions of their forces.”156 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
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.157
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.158 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.159 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
156 See Rumsfeld Press Conference, supra note 8.
157 FM 27-10, supra note 30, at para. 64b.
158 See LEVIE, supra note 41, at 47.
159 See Mallison and Mallison, supra note 32, at 56-57 (noting that armbands, insignia, or
distinctive headgear are acceptable according to some military manuals).

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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.160
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.161 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
open fields.162 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.163
Although the lack of uniform can be detrimental to a soldier who falls into the
hands of the enemy,164 it has not been the case historically that all fighters lacking a
uniform or some other identifying mark have been denied prisoner status.165
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.166
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.167 Guerrillas and terrorists therefore lose any claim they might have to
160 See TREATISE, supra note 119, at 31.
161 See id. at 76 (noting that uniforms performed a purely utilitarian function prior to the
Franco-Prussian War).
162 See Baxter, supra note 31, at 343.
163 See Mallison and Mallison, supra note 32, at 57.
164 See Baxter, supra note 31, at 343. (“[T]he character of the clothing worn by the accused
has assumed major importance.”).
165 See generally TREATISE, supra note 119. 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.
166 FM 27-10, supra note 30, at para. 74 (emphasis added.)
167 Perfidious conduct refers to an act that “invite[s] the confidence of an adversary to lead
(continued...)

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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.168 Soldiers who belong to armies
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.169
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.”170 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.171 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.172 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
167 (...continued)
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).
168 See Baxter, supra note 31, at 340-41 (noting probable distinction between hostile intent
and seeking to escape).
169 See, e.g. TREATISE, supra note 119, 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).
170 See Rumsfeld Press Conference, supra note 8.
171 See 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 July
27, 2005)(commenting that “both modes of dress, while perhaps not ideal, are, nonetheless,
sufficient to satisfy the principle of distinction under current law.”).
172 Id. (“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.”).

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dress, or even to use the uniform of the enemy for the purpose of infiltrating enemy
territory.173
(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.
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.”174 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.”175
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:
173 See 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).
174 See ICRC COMMENTARY, supra note 68, at 61.
175 See id.

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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.176
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.”177 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.178
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.179
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
176 See id.
177 See id.
178 See Mallison and Mallison, supra note 32, at 60 (suggesting that “it is better to have
irregulars adhere as much as possible rather than not at all”).
179 See LEVIE, supra note 41, 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.

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of the Communists.180 The United States also treated North Vietnamese and some
Vietcong prisoners as POWs, despite North Vietnam’s denial that the GPW applied
at all,181 along with its threatened policy of treating downed U.S. airmen as not
eligible for POW status and trying them as war criminals.
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, and one federal court has agreed, that
even if most of the detainees 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.”182
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.183 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.184 Under the 1949 GPW, combatants are presumed to be
entitled to POW status unless formally declared otherwise.185 The United States has
in the past interpreted this language as requiring an individual assessment of status
before privileges can be denied.186 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.
180 See id. 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).
181 See id.
182 Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 162 (D.D.C. 2004).
183 See ICRC COMMENTARY, supra note 68, at 77.
184 See LEVIE, supra note 41, at 56.
185 See Baxter, supra note 31, 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.”).
186 See id; FM 27-10, supra note 30, 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.”).

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The conflict in Vietnam, with its high frequency of irregular warfare, brought
about the first implementation of written procedures for art. 5 tribunals.187 The
United States Military Assistance Command (MACV) first issued a directive
pertaining to the determination of POW status in 1966.188 Under the MACV
directive, the captured North Vietnamese Army and Vietcong fighters were accorded
POW status upon capture.189 For prisoners who were not obviously entitled to POW
status, a tribunal of three or more officers was convened to determine their status.190
“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.”191 Those not treated as POWs were treated as civil
defendants, and were accorded the substantive and procedural protections of the
GC.192 This approach met with the approval of the ICRC.193
In Grenada, where U.S. forces were opposed by Cuban military personnel and
the Grenadian People’s Revolutionary Army, the conflict was treated as international
in nature and all captives were treated as prisoners of war until a more accurate
determination could be made.194 Detained persons were later classified as POWs,
retained persons, or civilian internees, and were allowed to communicate with their
next of kin within seven days of capture.195 Seventeen former members of the
government who were accused of taking part in the coup attempt, however, were
initially detained incommunicado and interrogated on board U.S. vessels.196 After
hostilities ceased they were transferred to revolutionary courts that were financed by
the United States and staffed by judges and lawyers from various Caribbean nations.
All were found guilty. Amnesty International alleged that the trials were unfair and
the verdicts relied on coerced statements.197 The Inter-American Commission on
Human Rights (IACHR) later determined that the Government of the United States
had violated Articles I (right to life, liberty and security of person), XVII (the right
to recognition of juridical personality and civil rights) and XXV (right to be protected
from arbitrary arrest and the right to humane treatment in custody) of the American
187 See POW DOCUMENTS, supra note 134, at 722.
188 See MACV Directive 20-5, 17 May 1966.
189 See MACV Directive 381-46, Dec. 27, 1967 annex A, reprinted in 62 AM. J. INT’L L 765
(1968).
190 See FREDERIC L. BORCH, JUDGE ADVOCATES IN COMBAT 21 (2001).
191 See MACV Directive 381-46.
192 See Mallison and Mallison, supra note 32, at 73.
193 See id. at 74 (quoting commendation by ICRC representative in Saigon).
194 See BORCH, supra note 190, at 65-66 (noting that the brief nature of the hostility phase
in that conflict made it difficult to classify the captives until afterward).
195 See id.
196 See The Grenada 17: The Last of the Cold War Prisoners?, Amnesty International Report
3 2 / 0 0 1 / 2 0 0 3 ( 2 3 O c t o b e r 2 0 0 3 ) , a v a i l a b l e a t
[http://web.amnesty.org/library/index/ENGAMR320012003](last visited July 27, 2005).
197 See id.

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Declaration on the Rights and Duties of Man.198 The IACHR did not examine the
fairness of the trials because the United States no longer had custody of the accused
by the time they were tried.
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.199 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.200
These procedures do not appear to apply in what the Army calls Military
Operations Other than War (MOOTW).201 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
198 See Inter-American Commission on Human Rights, Report No. 109/99, Case 10.951,
Coard et al v. United States (29 September 1999).
199 See FM 3-19.40 Military Police Internment/Resettlement (I/R) Operations.
200 AR 190-8 ch. 1-6(g).
201 See Warren, supra note 95, 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).

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the GPW.”202 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.203
During Operation Just Cause in Panama, members of the Panamanian armed
forces were termed “detainees” but were reportedly treated as POWs.204 U.S. forces
also detained a large number of common criminals and patients from a mental
hospital, as well as some members of the Noriega government.205 After hostilities had
ceased, a three-officer tribunal was set up to classify the prisoners. Four thousand of
the prisoners were turned over to the new Endara government, while 100 prisoners
of special interest were retained by U.S. forces.206 Some of the latter group were
transferred to the United States for civilian trials, but most were turned over to the
Panamanian government. 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.207 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.208 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.
During the first Gulf War in 1991, the U.S. military did not set up camps for
prisoners of war; instead, prisoners were processed by the Army and turned over to
Saudi Arabia for detention.209 The Army conducted 1,191 art. 5 tribunals.210
202 See Warren, supra note 95, at 58-59.
203 See id.
204 See id .
205 See BORCH, supra note 190, at 104-05.
206 Id.
207 See 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.
208 Id. at 794.
209 See BORCH, supra note 190, at 171.
210 See Law of War Workshop Deskbook, The Center for Law and Military Operations,
Judge Advocate General’s School, U.S. Army (2000).

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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.
DOD reports that the detainees are receiving some of the benefits accorded under the
Conventions to protected persons, and are not suffering inhumane treatment. DOD
also points to the relatively recently instituted Combatant Status Review Tribunals
as evidence that the detainees have received a determination of their status that
roughly corresponds to what they would receive from a “competent tribunal” under
GPW art. 5. 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 the critics’ 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.211 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.212
It is forbidden to use mental or physical coercion to extract information from
prisoners,213 but tactics such as trickery or promises of improved living conditions are
not foreclosed.214 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
211 For more on military interrogation, see CRS Report RL32567, Lawfulness of
Interrogation Techniques under the Geneva Conventions, by Jennifer Elsea.
212 See ICRC COMMENTARY, supra note 68, at 164.
213 GPW art. 17.
214 See LEVIE, supra note 41, at 108.

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disadvantageous treatment of any kind.” Torture is not permitted in the case of any
detainee, regardless of that person’s status.215
Similar language was contained in the 1929 Geneva Convention.216 Despite the
reports of widespread abuse of prisoners of war at the hands of enemy interrogators,
there is very little case precedent defining the boundaries of acceptable conduct. 217
A British military court convicted several German Luftwaffe officers of improperly
interrogating British POWs218 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.219 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.220
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.221 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.222 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.223 It may thus be argued that POWs are entitled to some form
215 GC 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.
216 Geneva 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.
217 See POW DOCUMENTS, supra note 134, at 708.
218 See Trial of Erich Killinger and Four Others, 3 LRTWC 67, excerpts reprinted in POW
DOCUMENTS, supra note 134, doc. no. 70, at 291.
219 See id.
220 See id. at 292.
221 See ICRC COMMENTARY, supra note 68, at 163.
222 See LEVIE, supra note 41, 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...”).
223 GPW 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.
(continued...)

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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.224 Further, there is a distinction between crimes and
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. 225
The military has jurisdiction to try enemy POWs and civilians, including
“unlawful belligerents,” for violations of the law of war.226 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.227
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
223 (...continued)
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.
224 See CRS Report RL31600, The Department of Defense Rules for Military Commissions:
Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform
Code of Military Justice, by Jennifer K. Elsea.
225 See GPW art. 87; GC III art. 33.
226 See 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 CRS Report
RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts,by
Jennifer K. Elsea.
227 For 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 that these prisoners can only be charged as common criminals and not as
unlawful belligerents.

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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,228 prompt notification of the charges and a
speedy trial,229 notification to the Protecting Power of the impending trial at least
three weeks in advance,230 right to counsel of the POW’s own choosing or appointed
counsel,231 trial in the presence of a representative of the Protecting Power,232 the
228 GPW art. 99.
229 GPW 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
essential to do so in the interests of national security. In no circumstances shall this
confinement exceed three months.
230 GPW art. 104 requires the following information to be reported to the Protecting Power
(see supra note 83) 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.
231 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.
(continued...)

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right to appeal a decision,233 and if convicted, the right to serve the sentence under
humane conditions.234 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. 107.235 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.236
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.”237 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,238 but these may not be enforced retroactively.239 In
addition, “[n]o sentence shall be pronounced by the competent courts of the
Occupying Power except after a regular trial.”240 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.”241 The accused has the right to counsel of choice and an
interpreter, the right to present evidence necessary to his defense,242 and the right to
231 (...continued)
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.
232 Id. (“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.”).
233 GPW 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.
234 GPW 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.
235 GPW art. 101.
236 GPW art. 100.
237 GC art. 64
238 Id.
239 See id. art. 65-66
240 Id. art 71.
241 Id.
242 GC. art. 72.

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appeal a sentence.243 These provisions apply not only in occupied territory but also,
by analogy, to persons interned on the territory of the Detaining Power.244
Protected persons have the additional right to have the Protecting Power notified
of the charges245 and may have a representative of that power attend the trial.246 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.247
Chapter IX applies to civilian internees, and provides protection against
duplicate punishment.248 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,249 by confinement in a
penitentiary.250
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.251 At the same time,
the Detaining Power will undoubtedly seek to take all possible precautions to prevent
escape.252 The Geneva Conventions regulate the use of deadly force to prevent an
243 Id. art. 73.
244 Id. 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.
245 Id. art 71.
246 Id. art 74.
247 Id. art 75.
248 Id.art. 118.
249 GC art. 122.
250 Id. art. 124.
251 See LEVIE, supra note 41, at 403.
252 See id. (noting POWs will likely be placed in enclosures made “as escape-proof as
humanly possible”).

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escape, requiring warning prior to the firing of any shots.253 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
punishment is permitted.254 A prisoner who has attempted escape may be subjected
to extraordinary surveillance measures.255
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.256 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, known as Camp 4, 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.257 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 in practice 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
253 GPW 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.
254 Id. art. 91-95.
255 GPW art. 92; GC art. 120.
256 GPW 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.
257 See LEVIE, supra note 41, at 110.

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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.”258 However, there is an exception for prisoners who are charged with or
have been convicted of an indictable crime.259 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.260 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.261
Interned civilians must also be released “as soon as the reasons which
necessitated [their] internment no longer exist,”262 which will occur “as soon as
possible after the close of hostilities.”263 There is an exception for internees against
whom penal proceedings are pending or who have been convicted and sentenced for
non-disciplinary offenses.264 These internees may be detained “until the close of such
proceedings and, if circumstances require, until the completion of the penalty.”265
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.266 Detainees have the right to
258 See 1929 Geneva Convention Relative to the Treatment of Prisoners of War art. 75, 47
Stat. 2021 (July 27, 1929).
259 See 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.
260 See In re Territo, 156 F.2d 142 (9th Cir. 1946).
261 See, e.g. POW DOCUMENTS, supra note 134, 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).
262 GC art. 132.
263 Id. art. 133.
264 GC art. 133.
265 Id.
266 Failure 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
(continued...)

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protest their treatment to the detaining power or to a neutral power or organization
serving as the protecting power,267 and may not be punished for having asserted a
grievance, even where it is considered unfounded.268 (In this case, the role of
protector appears to be filled by the International Committee of the Red Cross.)
Other signatory states are obligated to “ensure respect” for the Conventions “in all
circumstances,”269 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.270
While the detainees also have recourse to federal courts to challenge their
detention,271 the extent to which they may enforce their rights under the Geneva
Conventions remains unclear. The Justice Department argues that Rasul v. Bush
merely decided the issue of jurisdiction, but that the 1950 Supreme Court decision
in Johnson v. Eisentrager272 still limits the relief to which the detainees are entitled.
The Eisentrager Court declined to consider whether the military commissions had
lacked jurisdiction because they failed to accord rights guaranteed under the 1929
Geneva Convention on Prisoners of War, but this decision was based on its earlier
interpretation that the relevant language in the 1929 Convention applied only to
disciplinary offenses committed during captivity and not to pre-capture violations of
266 (...continued)
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
134, 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
134, doc. no. 82 (conviction for “permitting and participating in an illegal and false trial”
of American POWs).
267 GPW art. 78.
268 Id.
269 GPW art. 1.
270 Such 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,” but criticized the United States’ conduct with respect to the detainees.
See Abbasi v. Sec’y of State, [2002] EWCA Civ 1598, reprinted in 42 I.L.M. 358 (2003).
271 Rasul v. Bush, 124 S.Ct. 2686 (2004).
272 339 U.S. 763 (1950) (holding that the federal courts did not have jurisdiction to hear a
petition on behalf of German citizens who had been convicted by U.S. military commissions
in China 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”). In two other cases, however, the Supreme Court agreed that federal courts
have jurisdiction to hear habeas petitions by enemy combatants, although the petitioners
eventually lost on the merits. See Ex parte Quirin, 317 U.S. 1 (1941); In re Yamashita, 327
U.S. 1 (1946).

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the law of war.273 The 1949 Geneva Convention, however, was drafted to clarify that
it applies to trials for any offense, whether committed during or prior to
internment.274 The D.C. Circuit decision relies instead on a footnote from the
Eisentrager opinion that expresses doubt that the Court could grant relief based
directly on the 1929 Geneva Convention:
We are not holding that these prisoners have no right which the military
authorities are bound to respect. The United States, by the Geneva Convention
of July 27, 1929. 47 Stat. 2021, 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.275
Some district judges from the District Court for the District of Columbia
reached contrasting conclusions with respect to the applicability of the Constitution
and the enforceability of the Conventions, holding that detainees have the right to the
assistance of an attorney276 and that they have a right to be treated as POWs until a
“competent tribunal” decides otherwise.277 A panel of the D.C. Circuit Court of
Appeals, however, agreed with the government, holding that the Geneva Conventions
are not enforceable in U.S. court on behalf of detainees,278 despite the Supreme
Court’s note in Rasul suggesting that the detainees had stated a claim under the
habeas statute,279 which statute had been interpreted by the Eisentrager Court to be
inapplicable to the claims then at issue. The D.C. Circuit interpreted Rasul to apply
to jurisdiction only, and not to imply that relief could necessarily be granted on such
a claim.
The Supreme Court has granted certiorari in Hamdan v. Rumsfeld (05-184) to
decide whether Congress authorized the President to try suspected terrorists by
military commissions and whether detainees can assert rights under the 1949 Geneva
Convention in an action for a writ of habeas corpus challenging the legality of their
detention by the Executive branch. However, if Congress passes the Graham
273 339 U.S. at 789-90 (citing Ex parte Quirin, 317 U.S. 1, 37 (1941); In re Yamashita, 327
U.S. 1 (1946)).
274 See LEVIE, supra note 41, at 379-80.
275 339 U.S. at 789 n.14.
276 Al Odah v. United States, No. CIV.A. 02-828(CKK) (D.D.C. Oct. 20, 2004).
277 Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D.D.C. 2004); rev’d 413 F.3d 33 (D.C. Cir.
2005), cert. granted 2005 U.S. LEXIS 8222 (Nov. 7, 2005).
278 413 F.3d at 37 .
279 See Rasul at 2698 (finding authority for federal court jurisdiction in 28 U.S.C. § 2241,
which grants courts the authority to hear applications for habeas corpus “within their
respective jurisdictions,” by any person who claims to be held “in custody in violation of
the Constitution or laws or treaties of the United States”).

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CRS-49
Amendment to the Senate Defense Appropriations bill (see infra), or any similar
legislation to deny detainees the statutory right to petition for habeas corpus, the
Court might lose jurisdiction to decide these issues.
Congress’s 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,280
to define and punish violations of international law,281 and to make regulations to
govern the armed forces.282 Congress also has the constitutional prerogative to
declare war,283 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.284
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,285 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,286 to penalize those who aid the escape of an enemy prisoner,287
and to exempt prisoners of war from the entitlement to claim of compensation for
injury or death resulting from war-risk hazard.288 However, prisoners of war are
covered under the jurisdiction of the Uniform Code of Military Justice (UCMJ).289
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
280 U.S. CONST. art. I, § 8, cl. 11
281 Id. art. I, § 8, cl. 10.
282 Id. art. I, § 8, cl. 14.
283 Id. art. I, § 8, cl. 11.
284 See CRS Report RL31133, Declarations of War and Authorizations for the Use of
Military Force: Background and Legal Implications, by David Ackerman and Richard
Grimmet.
285 10 U.S.C. § 956(5).
286 10 U.S.C. § 1483.
287 18 U.S.C. § 757.
288 42 U.S.C. § 1701.
289 See 10 U.S.C. § 802(a)(9).

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CRS-50
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. Courts have not been
receptive to the argument that the President has the inherent authority to determine
how to pursue the war against terrorism. As detainees exercise their right under
Rasul v. Bush to challenge their detention, Congress’s role is likely to receive greater
attention. If Congress decides to suspend the writ of habeas corpus with respect to
the Guantánamo detainees, the broadest avenue for testing whether executive actions
comply with congressional authorization will likely be at least partially blocked.
108th Congress
Several measures were introduced during the 108th Congress to address the
detention of persons detained in connection with the war on terrorism. Legislation
to authorize the President to convene military tribunals under certain circumstances
was not enacted. However, the National Defense Authorization Act for FY2005, PL
108-375 (October 28, 2004) (“NDA”) contains measures to ensure the proper
treatment of all prisoners held in connection with the war on terrorism, including the
prisoners in military custody at Guantanamo Bay.290
The NDA emphasizes that the policy of the United States is to ensure that no
detainee in its custody is subjected to torture or cruel, inhuman, or degrading
treatment, and to promptly investigate and prosecute instances of abuse, to ensure
that U.S. personnel understand the applicable standards, to accord detainees whose
status is in doubt the protection for prisoners of war under the Geneva Conventions,
and to “expeditiously process and, if appropriate, prosecute detainees in the custody
of the United States, including those in the custody of the United States Armed
Forces at Guantanamo Bay, Cuba.” (Sec. 1091). It also requires the military to
implement, within 150 days of the passage of the act, a policy to ensure detainees are
treated in accordance with the obligations set forth in section 1091, (Sec. 1092), and
to submit copies of regulations to Congress along with a report setting forth steps
taken to implement section 1092. (Sec. 1093). The NDA also requires DOD to
submit an annual report giving notice of any investigation into any violation of laws
regarding the treatment of detainees, aggregate data relating to the detention
operations of the Department of Defense, including how many persons are held and
in what status, and how many have been transferred to the jurisdiction of other
countries. The NDA does not address the treatment of persons in custody of the CIA.
109th Congress
Two bills have been introduced to authorize the detention of enemy
combatants. The Detention of Enemy Combatants Act (H.R. 1076) deals with U.S.
citizens and resident aliens, and will not be further elaborated below.291 The
Guantanamo Detainees Procedures Act of 2005, H.R. 3038, affirms the President’s
290 For more information, see CRS Report RL32395, U.S. Treatment of Prisoners in Iraq:
Selected Legal Issues, by Jennifer K. Elsea.
291 For a discussion of H.R. 1076, see CRS Report RL31724, Detention of American Citizens
as Enemy Combatants, by Jennifer K. Elsea.

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CRS-51
authority to detain certain foreign nationals and prescribes procedural rules with
respect to their detention and possible trial by military commission, apparently
irrespective of where covered persons are captured or detained. Two bills would
create an independent commission to investigate detainee abuse (H.R. 3003, S. 12,
§ 224). The House of Representatives passed a provision as part of its Defense
Appropriations bill, H.R. 2863, that would “reaffirm[] that torture of prisoners of war
and detainees is illegal and does not reflect the policies of the United States
Government or the values of the people of the United States.” (Sec. 9009) The Senate
substituted its own version of H.R. 2863, which includes an amendment introduced
by Senator McCain to require uniform standards for interrogation of persons in the
custody of the Department of Defense,292 and would expressly ban cruel, inhuman,
or degrading treatment of detainees in the custody of any U.S. agency.293 The
prohibited treatment is defined as that which would violate the Fifth, Eighth, and
Fourteenth Amendments to the U.S. Constitution, as the Senate has interpreted
“cruel, inhuman, or degrading” treatment banned by the U.N. Convention Against
Torture.294 The provision would not create a cause of action for detainees to ask a
court for relief based on inconsistent treatment. The Administration has reportedly
sought to have the Central Intelligence Agency excepted from this provision on the
grounds that “the president needed maximum flexibility in dealing with the global
war on terrorism.”295 Senator McCain has criticized the Administration’s proposal,
arguing that an express CIA exemption could be interpreted as tantamount to
statutory authority for the CIA to subject detainees to the treatment his amendment
seeks to ban.296
The Senate approved amendments to its Defense Authorization bill (S. 1042,
passed by roll call vote November 15, 2005), to require the Defense Department to
adhere to the Army’s interrogation manual and prohibit cruel, inhumane and
degrading treatment of prisoners in U.S. custody no matter where they are held
292 Section 8154 of H.R. 2863, as passed by the Senate, would require DoD to follow the
Army Field Manual for intelligence interrogation. See DEPARTMENT OF THE ARMY FIELD
MANUAL 34-52, INTELLIGENCE INTERROGATION (1992), available at
[http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse/FM34-52IntelInterrogation.pdf]
(Sep. 1, 2004). For an analysis of the approved interrogation procedures, see CRS Report
RL32567, Lawfulness of Interrogation Techniques under the Geneva Conventions, by
Jennifer Elsea.
293 S.Amdt. 1977 to H.R. 2863 (October 5, 2005)(passed with a roll call vote of 90 yeas and
9 nays). See CRS Report RS22312, Overview and Analysis of Senate Amendment
Concerning Interrogation of Detainees, by Lee Wood.
294 H.R. 2863 § 8155. For more information, see CRS Report RL32438, U.N. Convention
Against Torture (CAT): Overview and Application to Interrogation Techniques, by Michael
John Garcia.
295 See Eric Schmitt, Exception Sought in Detainee Abuse Ban, N.Y. TIMES, Oct. 25, 2005,
at 16.
296 See Charlie Savage, McCain Fights Exception to Torture Ban, BOSTON GLOBE, Oct. 26,
2005, at A2.

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(S.Amdt. 2425),297 but rejected an amendment to establish an independent
commission to investigate detainee abuse (S.Amdt. 1494).298
The Senate also voted to require the Defense Department to submit to the
Armed Services and Judiciary Committees the procedural rules for determining
detainees’ status,299 which would be required to preclude evidence determined by the
board or tribunal to have been obtained by undue coercion (S.Amdt. 2516 to S. 1042,
“the Graham Amendment”).300 The amendment would neither authorize nor require
a formal status determination, but it would require that certain congressional
committees be notified 30 days prior to the implementation of any changes to the
rules. The Graham Amendment would also eliminate the federal courts’ statutory
jurisdiction over habeas claims by aliens detained at Guantanamo Bay, including
those pending at the bill’s enactment, but would provide for limited appeals of status
determinations made pursuant to the DoD procedures for Combatant Status Review
Tribunals (CSRTs).301 The D.C. Circuit Court of Appeals would have exclusive
jurisdiction to hear appeals of any status determination made by a “Designated
Civilian Official,” but the review would be limited to a consideration of whether the
determination was made consistently with applicable DoD procedures, including
whether it is supported by the preponderance of the evidence, but allowing a
rebuttable presumption in favor of the government. The restriction on the use of
evidence obtained through undue coercion applies prospectively only, and would be
unavailable to detainees who have already been determined by CSRTs to be enemy
combatants. Detainees could also appeal status determinations on the basis that
“subjecting an alien enemy combatant to such standards and procedures is
[in]consistent with the Constitution and laws of the United States.” Jurisdiction
would cease if the detainee is transferred from DoD custody.
The Graham Amendment does not elaborate on the role of the “Designated
Civilian Official” whose decision may be appealed. As the CSRTs were initially
established,302 the final approval of CSRT decisions was the responsibility of the
297 151 CONG. REC. S12380 (daily ed. Nov. 4, 2005)(introduced by Sen. McCain, passed by
voice vote). The amendment is identical to the amendment that add sections 8154 and 8155
to the Senate version of H.R. 2863.
298 151 CONG. REC. S8833 et seq. (daily ed. July 25, 2005).
299 The amendment refers to both the Combatant Status Review Tribunals (“CSRTs”), the
initial administrative procedure to confirm the detainees’ status as enemy combatants, and
the Administrative Review Boards, which were established to provide annual review that
the detainees’ continued detention is warranted.
300 151 CONG. REC. S12667 (daily ed. Nov. 10, 2005)(introduced by Sen. Graham, passed
by roll call vote, 49 - 42), as amended by S.Amdt. 2524, 151 CONG. REC. S12771 (daily ed.
Nov. 14, 2005).
301 S.Amdt. 2516 to S. 1042, subsection (d). Sen. Bingaman’s second-degree amendment
to alter section (d) of S.Amdt. 2516 did not pass.
302 Memorandum, Assistant Secretary of Defense Paul Wolfowitz for the Secretary of the
Navy, Order Establishing Combatant Status Review Tribunals (June 7, 2004), available at
[http://www.defenselink.mil/news/Jul2004/d20040707review.pdf](last visited Nov. 12,
(continued...)

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CRS-53
convening authority,303 and there was no mention of a “designated civilian official,”
although this might be a reference to the role of the Secretary of the Navy, to whom
the order establishing CSRTs was addressed.304 The procedures established by
Secretary England refer to the position of Director, CSRT, who appears to be the
convening authority for the tribunals.305 At any rate, it does not appear that the
Graham Amendment would give the D.C. Circuit Court of Appeals jurisdiction to
review CSRT determinations that have not been made or approved by a civilian
official who had been appointed with the advice and consent of the Senate. The
amendment would not foreclose or limit any legal avenue other than habeas corpus
that might be available to the detainees to seek relief.
The Graham Amendment would also provide for an appeal to the Court of
Appeals for the District of Columbia Circuit of final sentences rendered by a military
commission. The court would be required to review capital cases or cases in which
the alien was sentenced to a term of imprisonment for 10 years or more, but could
hear other cases at its discretion. The scope of review would be limited to
considering whether the decision applied the correct standards consistent with
Military Commission Order No. 1 (implementing the President’s Military Order) and
whether “subjecting an alien enemy combatant to such order is consistent with the
Constitution and laws of the United States.” The amendment does not contain a
provision for interlocutory appeals of military commission procedures.
The Defense Authorization Act for FY2006 passed by the House of
Representatives, H.R. 1815, does not contain any provisions pertaining to the status
or treatment of detainees.
The White House has reportedly threatened to veto the bill if it includes
measures that would impede the President’s ability to conduct the war on
terrorism.306
302 (...continued)
2005).
303 Rear Adm. James M. McGarrah currently serves as convening authority for the CSRTs,
which have made determinations for all current detainees.
304 See id. The Department of Defense appointed the Secretary of the Navy, Gordon
England, to be the designated civilian official to operate and oversee the annual
administrative review boards set up to determine the continued detention of persons
affirmed by CSRTs to be enemy combatants at Guantanamo Bay Naval Base, Cuba. See
Press Release, Department of Defense, Navy Secretary to Oversee Enemy Combatant Admin
R e v i e w ( J u n e 2 3 , 2 0 0 4 ) , a v a i l a b l e a t
[http://www.defenselink.mil/releases/2004/nr20040623-0932.html](last visited Nov. 12,
2005).
305 See Memorandum, Secretary of the Navy, Implementation of Combatant Status Review
Tribunal Procedures for Enemy Combatants detained at Guantanamo Bay Naval Station,
C u b a , J u l y 2 9 , 2 0 0 4 , a v a i l a b l e a t
[http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf](last visited Nov. 12,
2005).
306 Liz Sidoti, Senators Press Bill On Detainee Rights, PHILADELPHIA INQUIRER, July 26,
(continued...)

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CRS-54
H.R. 3038. The Guantanamo Detainees Procedures Act of 2005, H.R. 3038,
would affirm the President’s authority to detain as “unlawful combatants” foreign
nationals who are accused of “planning, authorizing, committing, aiding, or abetting
one or more terrorist acts against the United States” or of “being part of or supporting
forces engaged in armed conflict against the United States.” Persons detained as
unlawful combatants or on a similar basis, apparently regardless of whether in
military custody or the custody of another agency, would be entitled to receive a
hearing, conducted by an active officer of one of the Courts of Criminal Appeals of
the Armed Forces, within six months to challenge the basis for that detention. The
hearing officer would have the authority to review detainees’ status de novo and
would have the power to grant relief. The detainee would have the right to have
access to all evidence supporting his detention (but apparently not to exculpatory
evidence). The detainee would be entitled to the opportunity to address the hearing
officer, and would be provided an interpreter for that purpose.
Those detained under the procedures above would have to have a final
disposition within two years after the government’s initial decision to detain them,
unless the Secretary of Defense certifies that the person would continue to pose a
threat if repatriated or under other extraordinary circumstances. Possible dispositions
would include repatriation to the governing authority of the territory where the
detainee was captured or his state of nationality, unless there is a substantial risk that
the person would be subjected to torture, or prosecution in an appropriate court,
which could include federal district court, an international criminal tribunal, or an
extraordinary tribunal authorized pursuant to section 5. The certification necessary
to extend the time period for a disposition for renewable one-year periods would be
required to include a detailed account of the factual basis for that determination, an
unclassified version of which would be made available to the detainee. The United
States Court of Appeals for the Armed Forces would be authorized to provide
judicial review of a certification.
Section 5 of the bill would authorize the President to conduct “extraordinary
tribunals,” consisting of at least five members and a military judge, to try persons
held as unlawful combatants for “violations of the law of war, international laws of
armed conflict, and crimes against humanity targeted against United States persons
or residents.” The Secretary of Defense, in consultation with the Secretary of State
and the Attorney General, would prescribe regulations for the tribunals’ rules and
procedures, which would be published in the Federal Register and reported to
Congress. Section 6 provides that the rules must be designed to “ensure a full and
fair hearing of the charges against the accused,” and sets forth the minimum
safeguards.307
306 (...continued)
2005, at 1.
307 Bills prescribing procedural rules for military commissions are discussed in CRS Report
RL31600, The Department of Defense Rules for Military Commissions: Analysis of
Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of
Military Justice, by Jennifer K. Elsea.

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Finally, H.R. 3038 would require the Secretary of Defense to submit to
Congress an annual report (unclassified, but with possible classified annexes) on
persons detained as unlawful combatants, including their names and nationalities, the
length of their detention and the results of proceedings required above. For detainees
no longer in custody, the report would also include any terms or conditions of
release, as well as a statement of the basis for the determination that release was
warranted.
S. 12. The Targeting Terrorists More Effectively Act of 2005, S. 12, contains
a provision to define U.S. policy with respect to detainees in the war against
terrorism. Section 223 would express the sense of the Congress that, at a minimum,
Common Article 3 of the Geneva Conventions applies to the war. The bill would
expressly mandate that “no detainee shall be subject to torture or cruel, inhumane, or
degrading treatment or punishment that is prohibited by the Constitution, laws, or
treaties of the United States.” It would further state that the policy of the United
States is to “avoid the indefinite detention of any individual in a manner which is
contrary to the legal principles and security interests of the United States,” and to
treat all foreign persons in the custody of the United States “humanely and in
accordance with the legal obligations under United States law and international law,
including the obligations in the Convention Against Torture and in the minimum
standards set forth in the Geneva Conventions.” The bill would further proclaim as
U.S. policy that “all officials of the United States are bound both in wartime and in
peacetime by the legal prohibitions against torture, cruel, inhumane, or degrading
treatment set out in the Constitution, laws, and treaties of the United States,” that
detainees are to be treated as POWs until a competent tribunal determines otherwise.
It would also state U.S. policy to either provide detainees individualized hearings for
the purpose of expeditiously holding detainees accountable for violations of the law
of war or other crimes, or to expeditiously conduct intelligence debriefings of such
detainees. The bill would require the Secretary of Defense to establish appropriate
regulations and training programs, and to report information about detainees and their
treatment to Congress.
Independent Commission Proposals. H.R. 3003 and section 224 of
S. 12 are proposals to create an independent commission to investigate detainee
abuse. S. 12 would establish the National Commission To Review Policy Regarding
the Treatment of Detainees to “examine and report upon the role of policymakers in
the development of intelligence related to the treatment of individuals detained
during Operation Iraqi Freedom or Operation Enduring Freedom . . . the impact of
the abuse of prisoners by the United States personnel on the security of the Armed
Forces of the United States . . . [and] to build upon the reviews of the policies of the
United States related to the treatment of individuals detained by the United States,
including such reviews conducted by the executive branch, Congress, or other
entities.” The Commission’s 15 members would be appointed by the minority and
majority leaders of both houses of Congress (three commission members each) as
well as the Judge Advocates General of each of the Armed Forces (one member
each). The Commission would investigate the detainee policy and its impact,
whether and to what extent U.S. military leaders were given the opportunity to
comment on and influence that policy, and would identify how the policy differs
from prior policies and practices of the U.S. Armed Forces.

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H.R. 3003 would establish the Independent Commission on the Investigation
of Detainee Abuses to “conduct a full, complete, independent, and impartial
investigation of the abuses of detainees in connection with Operation Iraqi Freedom,
Operation Enduring Freedom, or any operation within the Global War on Terrorism.”
The Commission would be charged with assessing the extent of the abuses, why they
occurred, who is responsible, whether any particular government policies,
procedures, or decisions facilitated or failed to prevent the detainee abuses, and what
legislative or executive actions should be taken to prevent future recurrences. The
Commission would also identify which Guantanamo Detention Center policies
influenced policies at the Abu Ghraib prison and other detention centers. H.R. 3003
would cover not only DOD policies and procedures, but would extend to the
Department of State, Department of Justice, Central Intelligence Agency, National
Security Council, and the White House. The Commission’s ten members would be
appointed by the President (one commission member), the majority and minority
leaders of both houses of Congress (two members each), and by the minority leaders
of the House and Senate together (one member). The Commission’s final report
would be due within 18 months after the bill’s enactment.

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