Order Code RL31367
CRS Report for Congress
Received through the CRS Web
Treatment of “Battlefield Detainees”
in the War on Terrorism
Updated November 14, 2006
Jennifer K. 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.
Congress enacted the Detainee Treatment Act of 2005 (DTA), P.L. 109-148, to
establish standards for interrogation and to deny detainees access to federal courts to
file habeas petitions but allow limited appeals of status determinations and final
decisions of military commissions. Congress approved the Military Commissions
Act of 2006 (MCA), P.L. 109-366, to authorize military commissions for the
prosecution of detainees for war crimes.
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 were 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, in particular with respect to members of the Taliban,
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
evoked additional criticism of the Bush Administration’s legal position. Finally, the
Supreme Court’s decision in Hamdan v. Rumsfeld determined that persons captured
in Afghanistan in connection with the “Global War on Terrorism” are entitled at least
to the minimum set of protections accorded by Common Article 3 of the 1949
Geneva Conventions.
This report provides an overview of the law of war and the historical treatment
of wartime detainees, in particular the U.S. practice; describes how the detainees’
status might affect their rights and treatment; and summarizes activity of the 108th
and 109th Congresses related to detention in connection with the war against
terrorism.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Current Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Critics’ Views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Law of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Characterizing the Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Authority to Detain during an International Armed Conflict . . . . . . . . . . . . 15
Prisoners of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Civilian Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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
Detention in Non-International Armed Conflicts . . . . . . . . . . . . . . . . . . . . 39
Treatment of Detainees at Guantánamo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Interrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Trial and Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
POWs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Unlawful Belligerents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Security Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Repatriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Right to Redress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Congress’s Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Detainee Treatment Act of 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
The Military Commissions Act of 2006 . . . . . . . . . . . . . . . . . . . . . . . 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
who were 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
Congress approved the Detainee Treatment Act of 2005 (DTA, or Graham-
Levin Amendment) to establish standards for interrogation and to deny detainees
access to federal courts to file habeas petitions but allow limited appeals of status
determinations and final decisions of military commissions in the D.C. Circuit Court
of Appeals.4 More than a hundred petitions for habeas corpus were already pending
in the D.C. Circuit. In the case of accused driver and bodyguard for Osama bin
Laden, Salim Ahmed Hamdan, a federal judge held the petitioner’s ongoing trial by
military commission to be illegal, leading the government to suspend temporarily the
operation of military tribunals. The D.C. Circuit Court of Appeals overturned that
decision, allowing DOD to restart the military commissions, but the Supreme Court
granted certiorari and reversed.5
1 Rasul v. Bush, 542 U.S. 466 (2004). For a summary of Rasul and related cases, see CRS
Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of Opinions
Related to Detainees in the War on Terrorism, 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,
542 U.S. 466 (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 March 22, 2006).
4 See CRS Report RL33655, Interrogation of Detainees: Overview of the McCain
Amendment, by Michael John Garcia.
5 Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D.D.C.,2004), rev’d 413 F.3d 33 (D.C. Cir.
(continued...)

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CRS-2
Two other district judges issued contradictory opinions as to whether the
detainees have any rights enforceable in federal court; these decisions also have been
appealed.6 The Administration has filed motions either to dismiss all of these
petitions on the basis that the DTA has curtailed the courts’ jurisdiction or to convert
the cases to appeals subject to the strictures of that Act. The Supreme Court rejected
the government’s argument that the Hamdan case should be dismissed for lack of
jurisdiction pursuant to the DTA. Congress responded by passing the Military
Commissions Act of 2006, which, in addition to providing explicit authority for
military commissions, cuts off jurisdiction to hear all habeas cases and other legal
actions brought by aliens in relation to their detention as “unlawful enemy
combatants,” including such cases that are currently pending.7
The detention and treatment of the suspected enemy combatants at Guantánamo
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,8 President Bush
shifted position with an announcement that Taliban fighters are covered by the 1949
Geneva Conventions, while Al Qaeda fighters are not.9 Taliban fighters are not,
however, treated as prisoners of war (POW) because they reportedly fail to meet
international standards as lawful combatants.10 The President had determined that
Al Qaeda remains outside the Geneva Conventions because it is not a state and not
a party to the treaty.11 The President proclaimed, in a previously secret memorandum
that was 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
5 (...continued)
2005), rev’d 548 U.S. __ (2006). For an overview of the Supreme Court decision, see CRS
Report RS22466: Hamdan v. Rumsfeld: Military Commissions in the ‘Global War on
Terrorism,’ by Jennifer K. Elsea.
6 Khalid v. Bush, 355 F.Supp.2d 311 (D. D.C. 2005)(detainees have no enforceable rights);
Al Odah v. United States, 346 F.Supp.2d 1 (D.D.C. 2004) (detainees may assert due process
rights). See CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus
Challenges in Federal Court, by Jennifer K. Elsea and Kenneth Thomas.
7 P.L. 109-366.
8 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).
9 See Mike Allen and John Mintz, Bush Makes Decision on Detainees, WASH. POST, Feb.
8, 2002, at A1.
10 See Press Conference, Department of Defense, Secretary Rumsfeld and General Myers,
Feb. 8, 2002 (hereinafter “Rumsfeld Press Conference”), available at [http://www.defense
link.mil/transcripts/2002/t02082002_t0208sd.html] (last visited Oct. 13, 2006).
11 See Fact Sheet, White House Press Office, Feb. 7, 2002, available at [http://www.white
house.gov/news/releases/2002/02/20020207-13.html] (last visited Oct. 13, 2006).

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CRS-3
appropriate and consistent with military necessity, in a manner consistent with the
principles of Geneva.”12
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 possible acquittal by a military tribunal. The 9/11
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.13 After the Hamdan decision was
announced, the Department of Defense issued a memorandum announcing that Al
Qaeda detainees were to be considered to be covered by the protections of Common
Article 3, and that DoD regulations pertinent to detainee operations, other than those
pertaining to military commissions, were understood to comply with Common
Article 3.14 Subordinate departments were requested to review directives and
regulations to ensure such compliance.
Current Status
Some 335 detainees (including three children under the age of 1615) have been
released from the detention facilities at the U.S. Naval Station in Guantánamo Bay,
Cuba16, and approximately 130 detainees have been deemed eligible for transfer. The
12 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 Oct. 13, 2006).
13 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.
14 Memorandum from Deputy Secretary of Defense Gordon England, Application of
Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the
Department of Defense, July 7, 2006 (hereinafter “England Memorandum”), available at
[http://www.defenselink.mil/news/Aug2006/d20060814comm3.pdf] (last visited Nov. 7,
2006).
15 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 March 22, 2006). 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. Reportedly, seven
teenagers ages 16 and 17 were housed within the general population. See id.
16 See Department of Defense, Press Release, Detainee Release Announced (Oct. 12, 2006)
(continued...)

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Supreme Court’s Hamdan decision and Congress’ approval of the Detainee
Treatment Act of 2005 and the Military Commissions Act of 2006 (“MCA”) may
have largely resolved the issue of detainees’ legal status; however, the treatment of
detainees who remain in custody continues to be a source of contention with human
rights groups. Some critics contend that the amendments to the War Crimes Act17
effectively permit harsh treatment that falls below the international standard.
The administrative proceedings implemented to review the status of detainees,
called the Combatant Status Review Tribunal (CSRT),18 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. Although Congress has
not authorized or required CSRT proceedings, it has likely ratified their use by
providing in the MCA a definition of “unlawful enemy combatant” that includes
persons who have been determined to be such by these tribunals and by providing
for the limited review of CSRT determinations in federal court. Critics view the
CSRT proceedings as insufficient to satisfy Hamdi, which many believe applies to
all detainees regardless of citizenship and place of detention.19 CSRTs were
completed for all detainees20 and confirmed the status of 520 enemy combatants.
Thirty-eight detainees were determined by CSRTs not to be enemy combatants. The
first round of Administrative Review Boards (ARBs) resulted in decisions to release
14 detainees, to transfer 120 detainees, and to continue detaining 329 detainees.21
Critics’ Views
Some allied countries and human rights organizations criticized the President’s
decision as contrary to international law, arguing it relied on an inaccurate
16 (...continued)
(stating current detainee population is 440), available at [http://www.defenselink.mil/
Releases/Release.aspx?ReleaseID=10068].
17 See CRS Report RL33662, The War Crimes Act: Current Issues, by Michael John Garcia.
18 Department of Defense procedural rules for CSRTs are available at [http://www.defense
link.mil/news/Aug2006/d20060809CSRTProcedures.pdf].
19 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 Guantánamo, available at
[http://www.hrw.org/english/docs/2004/07/27/usdom9135_txt.htm] (last visited Oct. 16,
2006).
20 As of September 6, 2006, the 14 “high value detainees” who were transferred from CIA
detention centers overseas to Guantanamo had not yet undergone CSRT proceedings. See
Press Release, Department of Defense, Defense Department Ordered to Take Custody of
High-Value Detainees (Sep. 6, 2006), available at [http://www.defenselink.mil/Releases/
Release.aspx?ReleaseID=9909] (last visited Nov. 7, 2006).
21 See Press Release, Department of Defense, Guantanamo Bay Detainee Administrative
Review Board Decisions Completed (Feb. 9, 2006), available at [http://www.defense
link.mil/releases/2006/nr20060209-12464.html] (last visited Nov. 7, 2006).

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CRS-5
interpretation of the Geneva Convention for the Treatment of Prisoners of War
(GPW).22 The U.N. High Commissioner on Human Rights (UNHCR) and some
human rights organizations argue that all combatants captured on the battlefield are
entitled to be treated as POWs until an independent tribunal has determined
otherwise.23 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.24 The
UNHCR released a report criticizing the U.S. detention policy as inconsistent with
U.S. obligations under international law, including humanitarian law and human
rights treaties.25
The European Parliament expressed concern about the U.S. detention of persons
in Guantánamo, in 2002, asking the United Nations to pass a resolution requesting
the establishment of a tribunal to clarify the detainees’ legal status.26 No action was
22 The Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949,
6 U.S.T. 3317 (hereinafter “GPW”).
23 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 March 22, 2006).
24 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).
25 UN Commission on Human Rights, Report on the Situation of detainees at Guantánamo
Bay, UN doc. E/CN.4/2006/120 (Feb. 15, 2006), available at [http://www.ohchr.org/english/
bodies/chr/docs/62chr/E.CN.4.2006.120_.pdf] (last visited March 23, 2006). The United
States objected to the legal conclusions reached in the report. See id., Annex II (letter from
Ambassador Kevin Edwar Moley).
26 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] (last
(continued...)

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CRS-6
taken on that request, and European Union countries voted as a bloc against a Cuban
resolution calling on the UNHCR to investigate U.S. detention operations at
Guantanamo Bay.27 The European Parliament adopted another resolution in 2004
calling for detainees to be charged, tried, and treated in accordance with international
law.28 In June of 2006, the European Parliament adopted a motion urging the United
States to close the detention center at Guantanamo Bay.29
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,30 which it reiterated in April 2005.31 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 detainees.32 The United States 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.33 On July 28, 2006, the Inter-American
Commission adopted a resolution urging the United States to close the detention
26 (...continued)
visited March 23, 2006).
27 Alexander G. Higgins, Guantanamo Bay: Bid to review U.S. base fails, MIAMI HERALD,
April 22, 2005, at A19.
28 See European Parliament Resolution on Guantanamo, Doc. P6_TA(2004)0050 (Oct. 28,
2004), available at [http://www.europarl.eu.int/ ] (last visited March 23, 2006) (insisting
that “every detainee should be treated in accordance with international humanitarian law and
tried without delay in a fair and public hearing by a competent, independent and impartial
tribunal, in application and demonstration of the very values we stand for”).
29 See European Parliament Resolution on Guantanamo, Doc. P6_TA-PROV(2006)0254
(June 13, 2006), available at [http://www.europarl.eu.int/ ] (last visited Oct. 16, 2006).
30 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 March 23, 2006)[hereinafter “Council of Europe”].
31 Parliamentary Assembly of the Council of Europe, Lawfulness of Detentions by the
United States in Guantánamo Bay, Resolution 1433 (April 26, 2006), available at
[http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/TA05/ERES1433.htm]
(last visited Oct. 16, 2006).
32 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.
33 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.

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CRS-7
facility and take other measures.34 The decision to transfer the prisoners to
Guantánamo Bay has also been criticized as an effort to keep them “beyond the rule
of law.”35
Applicable Law
The Geneva Conventions of 1949 create a comprehensive legal regime for the
treatment of detainees in an armed conflict.36 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.37 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).38 These “unprivileged” or “unlawful
34 IACHR, On Guantanamo Bay Precautionary Measures, Resolution No. 27/06, available
at [http://www.cidh.org/comunicados/english/2006/27.06eng.htm] (last visited Oct. 16,
2006).
35 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
March 23, 2006) (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).
36 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”].
37 GPW art. 4A(2).
38 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 ever to have considered the detainees to be
(continued...)

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CRS-8
combatants” may be punished for acts of violence for which legitimate combatants
could not be punished.39 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.40 The Bush Administration took the position
that the Geneva Conventions do not provide any protection to “unlawful combatants”
and that such persons may be tried by military commission for any act in furtherance
of an unlawful belligerency,41 but stated that the United States treats all such
detainees in a manner consistent with the Geneva Conventions protections for
prisoners of war.
The White House’s legal position was 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.42 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),43 but suggest
the view that the four criteria in GPW art. 4A(2) apply to regular armed forces as a
38 (...continued)
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).
39 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).
40 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”).
41 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
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.
42 These documents can be found at [http://www2.gwu.edu/~nsarchiv/NSAEBB/
NSAEBB127] (last visited March 23, 2006).
43 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...”).

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matter of customary international law.44 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.45 It is
unclear why, under this view, the conflict with the Taliban would continue to qualify
as an international war under GPW art. 246 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
status on the basis that the army did not comply completely with the law of war.47
Indeed, U.S. practice has been to accord POW status generously to irregulars,48 to
support such status for irregular forces at times,49 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.50 The Administration also asserted that the Geneva Conventions are obsolete
44 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 March 23, 2006).
45 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”].
46 See infra section on “Characterizing the Conflict.”
47 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).
48 See, e.g., discussion about procedures adopted during Vietnam conflict, infra note 194
et seq.
49 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).
50 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
(continued...)

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when it comes to dealing with terrorists,51 but that it would continue to follow the
treaties’ principles.52
With respect to Al Qaeda fighters, the Administration stated it would not apply
the Geneva Conventions because Al Qaeda is a criminal organization and not a state
party to the Geneva Conventions.53 However, the Hamdan decision effectively
overruled that decision, finding that at least Common article 3 of the Geneva
Conventions, which provides minimum protection during non-international conflicts
for all captives,54 applies to Al Qaeda.
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.55
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
and proportionality.56 The humanitarian side of the law, known as “Geneva law,”
50 (...continued)
the basis they were “war criminals”).
51 See Rumsfeld Press Conference, supra note 10.
52 See Press Release, DOD Joint Task Force Briefing on Detainee Operations at Guantánamo
Bay (Feb. 13, 2004), available at [http://www.defenselink.mil/transcripts/
2004/tr20040213-0443.html] (last visited July 27, 2005).
53 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).
54 The 1949 Geneva Conventions share several types of common provisions. The first three
articles of each Convention are identical. Common Article 3, note 218, infra, has been
described as “a convention within a convention” to provide a general formula covering
respect for intrinsic human values that would always be in force, without regard to the
characterization the parties to a conflict might give it. See JEAN PICTET, HUMANITARIAN
LAW AND THE PROTECTION OF WAR VICTIMS 32 (1975). Originally a compromise between
those who wanted to extend the Convention’s protection to all insurgents and rebels and
those who wanted to limit it to wars between states, Common Article 3 is now considered
to have attained the status of customary international law. See KRIANGSAK
KITTICHAISAREE, INTERNATIONAL CRIMINAL LAW 188 (2001).
55 See Mallison and Mallison, supra note 40, at 41(noting the law of war is dependent for
its observance on the common interests of participants).
56 See PICTET, supra note 54, 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”).

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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.57 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.58 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.59
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.60 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;61 a derogation from the rules by one party does
not excuse breaches by another,62 although reprisal in proportion may be
permissible.63 Were this not the case, any deviation from the letter of the law could
57 See DOCUMENTS ON THE LAWS OF WAR 1 (Adam Roberts and Richard Guelff, eds.
2000)(hereinafter “DOCUMENTS”).
58 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).
59 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.”); ALLAN ROSAS, THE LEGAL STATUS OF
PRISONERS OF WAR 37-39 (1976) (noting continuing relevance of this rule despite
opposition on the part of Socialist states, who advocated denying POW status to those
accused of “crimes against peace”).
60 See Mallison and Mallison, supra note 40, at 41 (noting that the central technique for
enforcing the law of war has been a system of interrelated rights and duties).
61 See PICTET, supra note 54, 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.
62 But see LEVIE, supra note 49, 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...”).
63 See THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 204 (Dieter Fleck,
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
(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.64
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.65
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
Parties, even if the state of war is not recognized by one of them,”66 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
63 (...continued)
a conflict in order to stop the adversary from violating international law.”).
64 See id. at 206.
65 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).
66 GPW art. 2; GC art. 2.

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amount to an armed conflict,67 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.68 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”
the armed conflict.69 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.70 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.71
According to the official commentary of the International Committee of the Red
Cross (ICRC),72 the conditions for an international war are satisfied whenever any
difference arises leading to the use of armed force between the militaries of two
67 See infra pp. 39-41.
68 See HANDBOOK, supra note 63, at 23.
69 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).
70 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).
71 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).
72 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.

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states.73 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 conflict met 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,74 the rules are less clear where
virtually no country recognizes a government.75
Because the use of force by private persons rather than organs of a state has not
traditionally constituted an “act of war,”76 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.77
The level of state support of terrorism required to incur state responsibility under
international law is a matter of debate.78 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
73 See id. at 23.
74 GPW art. 4A(3).
75 See 2 L. OPPENHEIM, INTERNATIONAL LAW 212 n.2 (H. Lauterpacht ed., 7th ed.
1952)(stating that rules of warfare apply in relation to states not recognized by the other
belligerent, and that while statehood may be controversial, “[t]he fact that [a state] has been
recognized as such by States — however few — other than the opposing belligerent,
provides strong evidence that it is a State and that it is entitled to be treated in accordance
with the rules of warfare”).
76 HANDBOOK, supra note 63, at 42.
77 See LT. COL. RICHARD J. ERICKSON, LEGITIMATE USE OF MILITARY FORCE AGAINST
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).
78 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....”).

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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.79 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.80 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.81
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
authorized to use armed force against members of a para-military group in self-
defense outside its own territory,82 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 an International Armed Conflict
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 international armed conflict have the
right to intern enemy prisoners of war,83 as well as civilians who pose a danger to the
79 See Aldrich, supra note 38, at 893 (viewing the decision to treat the conflict with Al
Qaeda as a separate conflict to be correct). The Supreme Court appears to have accepted
this view in Hamdan.
80 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 38, at 894 (arguing that Al Qaeda is not capable of being party to a
conflict to which the Geneva Conventions or Protocols apply).
81 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”).
82 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.”).
83 See GPW art. 21:
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security of the state,84 at least for the duration of hostilities.85 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.86 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
GPW87 and article 146 of GC.88
Neutral and non-belligerent signatory countries also have an obligation to intern
members of belligerent armed forces under the Geneva Conventions of 1949.89 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
83 (...continued)
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.
84 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.
85 See GPW art. 21; PICTET, supra note 54, 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.”).
86 See PICTET, supra note 54, at 46.
87 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
forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and
regular trial prescribed in this Convention.
88 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.
89 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 49,
at 69 (noting that predecessor rule during WWII resulted in the internment of more than
100,000 POWs in neutral countries).

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Protecting Power90 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).91 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.92 The privilege of being held as a prisoner of war was not extended to
brigands, pirates, looters and pillagers not associated with the uniformed army of any
state. Such persons were considered common criminals acting for personal gain
rather than agents of a state, and they could be summarily shot.93 (Modern rules
require a fair criminal trial).94
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.95 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 ....”96 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
90 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.
91 See LEVIE, supra note 49, at 69.
92 See DONALD A. WELLS, THE LAWS OF LAND WARFARE 127 (1992).
93 See id.
94 See Regulations Respecting the Laws and Customs of War on Land art. 30, Annex to the
Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2277 (hereinafter “Hague Regulations”).
95 Under the laws and customs of war, a civil war is covered by the same rules that apply to
wars between states if the conflict is recognized as a “belligerency.” See OPPENHEIM, supra
note 75, § 59.
96 See WELLS, supra note 92, at 127-28.

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invading army had established itself as occupying force, citizens could not lawfully
rise up against it.97
Later conventions adopted the Lieber Code for international application and
clarified the rules, generally expanding their coverage and increasing their
protections.98 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.99 Army Regulation (AR) 190-8
prescribes the treatment to be accorded to prisoners based on their status.100 The U.S.
military also incorporates the law of war into rules of engagement (ROE) prepared
for specific combat operations,101 providing instructions to soldiers on the lawful
handling of prisoners.
The authority to detain enemy combatants continues to rest on a theory of
agency or allegiance to the state. Enemy soldiers are presumed to follow the orders
of commanders, therefore, if hostilities cease, soldiers can be expected to cease their
fighting and will no longer pose a threat. There is thus no longer any military need
to keep them in captivity under article 21 of GPW.
Civilian Detainees. Civilians in occupied territory or the territory of a
belligerent may be interned during war if necessary for reasons of security.102 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.103 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
97 General Orders No. 100 para. 52.
98 See PICTET, supra note 54, 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.
99 See FM 27-10, supra note 38, para. 1 (listing treaties pertinent to land warfare to which
the United States is a party).
100 Department of the Army, AR 190-8, Enemy Prisoners of War, Retained Personnel,
Civilian Internees and Other Detainees (1997).
101 See Lt. Col. Marc L. Warren, Operational Law — A Concept Matures, 152 MIL. L. REV.
33, 51-57 (1996) (explaining function of ROE).
102 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.”).
103 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.

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with the state in whose hands they are.104 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.”105 Furthermore, part II of
the GC applies universally without regard to the nationality of the civilians
affected.106
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.107 There are
traditionally two types of unlawful belligerents: combatants who may be authorized
to fight by a legitimate party to a conflict but whose perfidious conduct disqualifies
them from the privileges of a POW, and civilians who are not authorized as
combatants but nevertheless participate in hostilities, but who do not thereby gain
combatant status.
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
104 GC art. 4.
105 See infra note 218; 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).
106 See GC art. 4 (stating “[t]he provisions of Part II are, however, wider in application, as
defined in Article 13”).
107 See Mallison and Mallison, supra note 40, at 42.

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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.108
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.109 If captured in the act, a spy
may be denied POW treatment, tried and possibly executed.110 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.111
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.112 If the acts are directed against civilian targets, they will likely be termed
acts of terrorism.113 Saboteurs retain the protection of the GC,114 and are entitled to
a fair and regular trial before punishment may be administered.115 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.116
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.
108 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).
109 See Hague Regulations, supra note 94, art. 29. The U.S. codification of this rule is
article 106 of the UCMJ, codified at 10 U.S.C. § 904. See also FM 27-10, supra note 38,
at paras. 75-78.
110 Hague Regulations, supra note 94, art. 30.
111 See id. art. 31.
112 See FM 27-10, supra note 38, at para. 81 (citing GC III art. 4).
113 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].
114 See FM 27-10, supra note 38, at para. 73.
115 See GC IV art. 5; FM 27-10, supra note 38, at para. 248.
116 See LEVIE, supra note 49, at 37 (noting that a person suspected of being a spy or saboteur
who claims POW status is entitled to a determination by a competent tribunal under GPW
art. 5).

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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.117 They
may be authorized, or at least encouraged to fight by a party to the conflict, but their
allegiance to the authorizing party is conditioned on payment rather than obedience
and loyalty.118 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,119 who may take
117 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts (hereinafter “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.
118 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).
119 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
(continued...)

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CRS-22
advantage of hostilities to conduct unlawful looting for their own enrichment without
regard for military necessity or the law of war.120 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.121
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.122 Based
on press reports and Pentagon statements about the detainees, there is little to suggest
that their motives stem from personal material gain rather than a belief that they are
serving a higher power. It appears to be generally recognized that the fighters do not
believe themselves to be serving Afghanistan as a country but are serving either the
Taliban or Al Qaeda, perhaps both, for ideological reasons. The United States has
made it clear that it is not fighting against the Afghan people, but instead considers
the Taliban and Al Qaeda to be the enemies. Since both groups are considered to be
parties to the conflict and their conduct serves as justification for the United States’
combat operations in Afghanistan, the label of mercenary does not appear appropriate
for the groups as a whole, although some of the individual fighters may prove to be
mercenaries.
Civilians Who Engage in Combat. The second category of unlawful
belligerents consists of civilians who carry out belligerent acts that might well be
conducted lawfully by combatants with proper authorization of the state. They act
on their own, albeit perhaps for patriotic or ideological reasons. Because they do not
answer to any higher command, they are not valid agents of a party to the conflict and
cannot always be expected to lay down their arms when hostilities between parties
cease. Civilians who engage in combat lose their protected status and may become
lawful targets for so long as they continue to fight. They do not enjoy immunity
under the law of war for their violent conduct and can be tried and punished under
civil law for their belligerent acts. They may also be interned without trial under GC
119 (...continued)
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).
120 See MCCOUBREY, supra note 59, at 145 (noting the “disturbing” role of mercenaries in
the conflict in Angola as “contract killers”).
121 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 49, 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).
122 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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art. 5, but they do not lose their protected status as civilians under the GC.123
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.124
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.125
These groups typically employ unorthodox guerrilla tactics emphasizing stealth and
surprise,126 and have received somewhat uneven treatment at the hands of states.127
In some conflicts, irregulars who could not prove their affiliation to an official
military were summarily shot as franc-tireurs.128 The lack of international consensus
with regard to the treatment of insurgents and partisans contributed to the
international impetus to codify the law of war, but has not been resolved and remains
a source of contention among states parties to the resulting treaties.129 Guerrilla
tactics do not appear to be in and of themselves violative of international law.130 It
could be argued that conventional style warfare conducted by irregular soldiers is no
123 See FM 27-10, supra note 38, 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.
124 See discussion on “Characterizing the Conflict,” supra.
125 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).
126 See Mallison and Mallison, supra note 40, at 42.
127 See generally TREATISE, supra note 125, 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).
128 See id. at 44 (citing the example of the Franco-Prussian War as impetus for advancements
in the law of war allowing irregular fighters to qualify as belligerents).
129 See Baxter, supra note 39, at 327 (arguing the 1949 Geneva Conventions destroyed what
little certainty had existed in the law regarding status of irregulars).
130 See id. at 337 (noting distinction between those fighting for private gain and those
fighting because of genuine allegiance to a cause).

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CRS-24
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 existence of an international armed conflict prior to the accession
of the new government, both the United States and Afghanistan, as signatories to the
four Geneva Conventions of 1949, were bound to grant POW status to enemy
combatants who qualified under GPW article 4. Captured members of the armed
forces, including militias and volunteer corps serving as part of the armed forces,
were entitled to be treated as POWs. Members of other volunteer corps, militias, and
organized resistence forces belonging to a party to the conflict were entitled to POW
status only if the organization met the four criteria in GPW article 4A(2). The
regular armed forces of a state,131 even if it is a government or “authority” not
recognized by the opposing party,132 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.133 Under this view, Taliban soldiers
captured on the battlefield in Afghanistan were at least presumptively lawful
combatants entitled to POW status.
Al Qaeda was not claimed as the armed forces of Afghanistan; therefore, its
members would have been entitled to POW status only if it “formed part of” the
armed forces of Afghanistan, it “belonged to” the Taliban and met the four criteria
in GPW art. 4A(2), or it were considered “an authority” not recognized by the
United States but nevertheless a party to the conflict. If the Taliban were not the
armed forces of Afghanistan, it would seem that such a determination would have
rendered the conflict non-international from the outset, in which case GPW art. 4 was
entirely irrelevant. However, if the conflict is considered to have been international
notwithstanding the status of the Taliban, then presumably the following analysis
would have applied to the Taliban as well.
131 GPW art. 4A(1).
132 GPW art. 4A(3).
133 See LEVIE, supra note 49, 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
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.134 The language may have been included in order to ensure that
members of the United States National Guard, for example, are protected.135
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 were officially incorporated into the Taliban army,
members of those units could argue that they are entitled to POW status.136
GPW Art. 4A(2): Does Al Qaeda “Belong to” a Party to the Conflict?
Even if Al Qaeda was never part of the armed forces of Afghanistan, its members
could qualify as POWs if Al Qaeda “belonged to” a party to the conflict and it met
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.137
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.138 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.139
If no party to an international armed 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.140 The court
134 See id. at 36 (noting, however, that states may not use domestic legislation to bring
otherwise unlawful combatants under the protection of the GPW).
135 See LEVIE, supra note 49, at 38.
136 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).
137 See Mallison and Mallison, supra note 40, at 52 (suggesting “belonging” element could
be satisfied by mere de facto relationship between the irregular unit and a state).
138 See Cassel, supra note 136, at 40 n.151 (distinguishing resistance movement in
international conflict from rebel groups in civil wars for the purpose of article 4).
139 See id. at 41 (concluding that indigenous groups resisting invading forces are likely
meant to be covered, but recognizing ambiguity with respect to groups supporting the
invading army).
140 Military Prosecutor v. Kassem, 47 I.L.R. 470 (1971) (excerpts reprinted in DOCUMENTS
(continued...)

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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.141
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.142 United States officials have argued
that the Taliban and Al Qaeda are intimately connected.143 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 never “belonged to” the
Taliban for the purposes of applying GPW art. 4.
The Four Criteria. The four criteria in GPW art. 4A(2) appear to have been
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
140 (...continued)
ON PRISONERS OF WAR, document no. 160 (U.S. Naval War College 1979) (hereinafter
“POW DOCUMENTS”).
141 But see Mallison and Mallison, supra note 40, at 71-72 (arguing status of PFLP under
Jordanian law was not relevant to the question of whether it “belonged to” a party).
142 See LEVIE, supra note 49, at 42 (citing GPW commentary suggesting that supply of arms
might be evidence of relationship).
143 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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combatants.144 Unfortunately, there is not much legal precedent that can aid in
interpreting and applying the criteria.145
The four criteria have their roots in the earliest expressions of the laws of war,
beginning with the Brussels Declaration146 and continuing nearly unchanged in the
Hague Convention Respecting the Laws and Customs of War on Land of 1907,147 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.148 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.149 The criteria originated as a compromise between states with strong
standing armies and weaker states whose defense might depend on armed citizens.150
The only real effect of the enumeration of the criteria at the Hague Convention was
to prohibit ill treatment of those who do not meet them.151
144 See LEVIE, supra note 49, 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.
145 See TREATISE, supra note 125, 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”).
146 See LEVIE, supra note 49, 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).
147 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.”
148 See TREATISE, supra note 125, at 48 (attributing the reluctance to adopt any change in
the criteria to the sensitivity of the subject).
149 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”).
150 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”).
151 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.152 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.153
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.154 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.”155 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.”156
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.157 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.158 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
151 (...continued)
only attempted to codify the existing rules and prohibit certain acts).
152 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).
153 See id. at 576 (describing official statements as well as practice with regard to different
types of guerrillas).
154 See id. at 578.
155 See id. (citing statement by James Bryce in the House of Commons).
156 See id. at 579.
157 See id. at 570-71.
158 See id. at 573.

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organize the forces and failed to supply the civilian fighters with proper
distinguishing emblems.159
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.160 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 have argued 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, have argued 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.161
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 never fulfilled this requirement because “they were not organized in military
units, as such, with identifiable chains of command; indeed, Al Qaeda forces made
159 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.
160 See WINTHROP, supra note 108, at 778.
161 FM 27-10, supra note 38, para. 64a.

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up portions of their forces.”162 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 ever
met all four criteria, suggesting that the first element may not be critical to the
determination.
A possible drawback to setting a high standard of conventional military
organization to determine whether the Taliban or Al Qaeda ever met the “responsible
command” element is that it could contradict the justification for targeting them at
all. If it had been the case that the Taliban had insufficient command and control of
its forces to distinguish its forces from a lawless mob, it would have been unlikely
that those forces could have posed a significant threat, especially outside of
Afghanistan.
(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.163
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.164 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.165 Similarly, there
is nothing to explain how great a distance must be before the distinction need no
longer be discernible. Methods of locating and of camouflaging military targets,
including soldiers, make it questionable whether the standards are the same today as
they were when the original Conventions were drafted, if such standards ever existed.
The purpose for requiring combatants to distinguish themselves from civilians
is to protect civilians from being targeted. Combatants who are unable to distinguish
enemy combatants from civilians might resort to firing upon all human beings in the
area of operations. There may be other reasons for enforcing the obligation to
identify oneself as a combatant that serve tactical purposes rather than purely
humanitarian ends. Requiring irregulars to display a mark aids the opposing army
162 See Rumsfeld Press Conference, supra note 10.
163 FM 27-10, supra note 38, at para. 64b.
164 See LEVIE, supra note 49, at 47.
165 See Mallison and Mallison, supra note 40, at 56-57 (noting that armbands, insignia, or
distinctive headgear are acceptable according to some military manuals).

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in targeting them and also impedes the irregulars’ ability to effect a surprise attack.166
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.167 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.168 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.169
Although the lack of uniform can be detrimental to a soldier who falls into the
hands of the enemy,170 it has not been the case historically that all fighters lacking a
uniform or some other identifying mark have been denied prisoner status.171
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.172
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.173 Guerrillas and terrorists therefore lose any claim they might have to
166 See TREATISE, supra note 125, at 31.
167 See id. at 76 (noting that uniforms performed a purely utilitarian function prior to the
Franco-Prussian War).
168 See Baxter, supra note 39, at 343.
169 See Mallison and Mallison, supra note 40, at 57.
170 See Baxter, supra note 39, at 343. (“[T]he character of the clothing worn by the accused
has assumed major importance.”).
171 See generally TREATISE, supra note 125. 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.
172 FM 27-10, supra note 38, at para. 74 (emphasis added.)
173 Perfidious conduct refers to an act that “invite[s] the confidence of an adversary to lead
him to believe that he is entitled to receive, or is obliged to accord protection under the rules
of international law applicable in armed conflict, with intent to betray that confidence....”
See BASIC RULES OF THE GENEVA CONVENTIONS AND THEIR ADDITIONAL PROTOCOLS 24
(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.174 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.175
Secretary of Defense Rumsfeld has suggested that the Taliban never fulfilled 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.”176 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.177 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.178 The very success of the armed
forces in quickly routing the enemy with virtually no U.S. casualties may also make
the argument somewhat more difficult to sustain. Finally, critics have pointed out
that U.S. Special Forces troops have been known to operate occasionally in civilian
dress, or even to use the uniform of the enemy for the purpose of infiltrating enemy
territory.179
173 (...continued)
(ICRC ed. 1983).
174 See Baxter, supra note 39, at 340-41 (noting probable distinction between hostile intent
and seeking to escape).
175 See, e.g. TREATISE, supra note 125, 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).
176 See Rumsfeld Press Conference, supra note 10.
177 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.”).
178 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.”).
179 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).

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(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.”180 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.”181
It is unclear whether arms must be carried in the open at all times or only during
the conduct of actual hostilities. Since surprise attacks are not per se unlawful, it
seems that ordinary ruses of war that involve camouflage or the concealing of arms
to hide preparation for battle would be permissible, while perfidious attacks carried
out with weapons disguised as harmless equipment might not be allowed.
It may also be valid to question whether the requirement is the same during
offensive operations for both the attacker and the attacked. To impose the same
requirements on those who suddenly find themselves in battle, denying POW status
on the basis that a particular combatant had a weapon concealed somewhere or was
not at the time in uniform would seem to give the attacker a clear advantage and even
greater incentive to launch surprise attacks against an unprepared enemy.
(d) Conducts its Operations in Accordance with the Laws of War.
According to FM 27-10:
This condition is fulfilled if most of the members of the body observe the laws
and customs of war, notwithstanding the fact that the individual member
concerned may have committed a war crime. Members of militias and volunteer
corps should be especially warned against employment of treachery, denial of
quarters, maltreatment of prisoners of war, wounded, and dead, improper conduct
toward flags of truce, pillage, and unnecessary violence and destruction.
The ICRC interprets the condition similarly:
Partisans are ... required to respect the Geneva Conventions to the fullest extent
possible. In particular, they must conform to international agreements such as
those which prohibit the use of certain weapons (gas). In all their operations, they
must be guided by the moral criteria which, in the absence of written provisions,
must direct the conscience of man; in launching attacks, they must not cause
violence and suffering disproportionate to the military result which they may
180 See ICRC COMMENTARY, supra note 72, at 61.
181 See id.

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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.182
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.”183 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.184
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.185
With regard to whether a regular army forfeits the right to have its members
treated as POWs by failing to follow the laws of war, U.S. practice has been to
comply with the Conventions even when the opposing side of a conflict does not.
The United States treated North Korean and Chinese prisoners as POWs during the
armed conflict in Korea, despite the near total disregard of its provisions on the part
of the Communists.186 The United States also treated North Vietnamese and some
Vietcong prisoners as POWs, despite North Vietnam’s denial that the GPW applied
182 See id.
183 See id.
184 See Mallison and Mallison, supra note 40, at 60 (suggesting that “it is better to have
irregulars adhere as much as possible rather than not at all”).
185 See LEVIE, supra note 49, 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.
186 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).

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at all,187 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.”188
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.189 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.190 Under the 1949 GPW, combatants are presumed to be
entitled to POW status unless formally declared otherwise.191 The United States has
in the past interpreted this language as requiring an individual assessment of status
before privileges can be denied.192 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.
187 See id.
188 Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 162 (D.D.C. 2004), rev’d 413 F.3d 33 (D.C.
Cir. 2005), rev’d 548 U.S. __ (2006). The Supreme Court did not resolve the issue, but
suggested the petitioner could present argument on remand as to his eligibility for POW
status.
189 See ICRC COMMENTARY, supra note 72, at 77.
190 See LEVIE, supra note 49, at 56.
191 See Baxter, supra note 39, 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.”).
192 See id; FM 27-10, supra note 38, 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.193 The
United States Military Assistance Command (MACV) first issued a directive
pertaining to the determination of POW status in 1966.194 Under the MACV
directive, the captured North Vietnamese Army and Vietcong fighters were accorded
POW status upon capture.195 For prisoners who were not obviously entitled to POW
status, a tribunal of three or more officers was convened to determine their status.196
“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.”197 Those not treated as POWs were treated as civil
defendants, and were accorded the substantive and procedural protections of the
GC.198 This approach met with the approval of the ICRC.199
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.200 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.201 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.202 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.203 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
193 See POW DOCUMENTS, supra note 140, at 722.
194 See MACV Directive 20-5, 17 May 1966.
195 See MACV Directive 381-46, Dec. 27, 1967 annex A, reprinted in 62 AM. J. INT’L L 765
(1968).
196 See FREDERIC L. BORCH, JUDGE ADVOCATES IN COMBAT 21 (2001).
197 See MACV Directive 381-46.
198 See Mallison and Mallison, supra note 40, at 73.
199 See id. at 74 (quoting commendation by ICRC representative in Saigon).
200 See BORCH, supra note 196, at 65-66 (noting that the brief nature of the hostility phase
in that conflict made it difficult to classify the captives until afterward).
201 See id.
202 See The Grenada 17: The Last of the Cold War Prisoners?, Amnesty International Report
32/001/2003 (23 October 2003), available at [http://web.amnesty.org/library/index/
ENGAMR320012003] (last visited July 27, 2005).
203 See id.

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Declaration on the Rights and Duties of Man.204 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.205 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.206
These procedures do not appear to apply in what the Army calls Military
Operations Other than War (MOOTW).207 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
204 See Inter-American Commission on Human Rights, Report No. 109/99, Case 10.951,
Coard et al v. United States (29 September 1999).
205 See FM 3-19.40 Military Police Internment/Resettlement (I/R) Operations.
206 AR 190-8 ch. 1-6(g).
207 See Warren, supra note 101, 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.”208 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.209
During Operation Just Cause in Panama, members of the Panamanian armed
forces were termed “detainees” but were reportedly treated as POWs.210 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.211 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.212 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.213 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.214 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.215 The Army conducted 1,191 art. 5 tribunals.216 During
Operation Iraqi Freedom in 2003, U.S. military forces conducted “preliminary
screenings” to determine whether the roughly 10,000 persons detained in connection
208 See Warren, supra note 101, at 58-59.
209 See id.
210 See id .
211 See BORCH, supra note 196, at 104-05.
212 Id.
213 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.
214 Id. at 794.
215 See BORCH, supra note 196, at 171.
216 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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with the invasion had committed a hostile act or obviously fell into one of the
categories defined in AR 190-8 for detainees. Formal art. 5 tribunals were conducted
pursuant to AR 190-8 only in the rare case when doubt as to status remained after the
initial screening.217
Detention in Non-International Armed Conflicts
Non-international armed conflicts are governed by Common Article 3 of the
Geneva Conventions,218 any applicable rules of the customary international law of
war,219 and any applicable obligations under human rights treaties.220 In addition,
although the United States has not ratified Additional Protocol I to the 1949 Geneva
217 THE CENTER FOR LAW AND MILITARY OPERATIONS (CLAMO), LEGAL LESSONS
LEARNED FROM AFGHANISTAN AND IRAQ: VOLUME I, MAJOR COMBAT OPERATIONS (11
SEPTEMBER 2001 TO 1 MAY 2003) 45 (2004).
218 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.
219 1 JEAN-MARIE HENCKAERTS AND LOUISE DOSWALD-BECK, INTERNATIONAL COMMITTEE
OF THE RED CROSS, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 299-383
(2005)(hereinafter “CUSTOMARY IHL”)(outlining fundamental rights applicable in non-
international as well as international armed conflicts).
220 Id. at 299-306 (outlining human rights obligations that continue to apply during armed
conflict).

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Conventions on the Protection of War Victims (“Protocol I”),221 the United States has
previously taken the view that many of its provisions have attained the status of
customary international law.222
Common Article 3 does not itself provide authority to detain individuals
suspected of being combatants or of presenting a security risk to the detaining state,
nor does it differentiate between “lawful” and “unlawful combatants.” Rather, it
states that the application of its provisions has no effect on the legal status of the non-
state party (or parties) to the conflict. In other words, the recognition that Common
Article 3 applies to a conflict does not constitute a recognition of belligerency on the
part of a state, and a state may therefore prosecute insurgents for treason and other
offenses against its laws without according them combatant immunity.223 On the
other hand, under customary international law, the laws of war are not implicated
unless a conflict constitutes a belligerency — that is, an armed conflict between two
belligerents.224 If a party to the conflict does not qualify as a belligerent under
international law, detention and prosecution of its members are carried out according
to domestic law, which in turn must comply with Common Article 3 and applicable
human rights obligations of the state. Thus, it appears that human rights treaties are
more relevant with respect to internal armed conflicts than they are in cases of
international armed conflict.225
Protocol I to the Geneva Conventions provides that
Any person who has taken part in hostilities, who is not entitled to
prisoner-of-war status and who does not benefit from more favourable treatment
221 Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the
Protection of Victims of International Armed Conflicts (hereinafter “Protocol I”), June 8,
1977, 1125 U.N.T.S. 3. According to its terms, Protocol I applies to international armed
conflicts as defined in the Geneva Conventions, but clarifies that these include “armed
conflicts in which peoples are fighting against colonial domination and alien occupation and
against racist regimes in the exercise of their right of self-determination....” Id. art. 1.
222 For a discussion of the official United States position regarding the status of Protocol I,
see generally Michael J. Matheson, Session One: The United States Position on the Relation
of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva
Conventions, 2 AM. U. J. INT’L L. & POL’Y 419 (1987).
223 See OPPENHEIM, supra note 75, § 59a (noting, however, that “so long as the insurgents
themselves abide by the provisions of the Convention and so long as they refrain from
committing acts of wanton murder and other offences amounting to war crimes it is in
accordance with the spirit of the Convention that trials and executions for treason should be
reduced to an indispensable minimum required by the necessities of the situation”).
224 Gabor Rona, Interesting Times for International Humanitarian Law: Challenges from
the “War on Terror,” 27 FLETCHER F. WORLD AFF. 55, 59-61 (2003) (noting that the
humanitarian law “concept of a ‘party’ suggests a minimum level of organization required
to enable the entity to carry out the obligations of law”); id. at 69 (arguing that killings and
detentions of persons outside the context of humanitarian law remains subject to the more
restrictive legal regimes of international and domestic criminal and human rights law).
225 See ROSAS, supra note 59, at 40.

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in accordance with the Fourth Convention shall have the right at all times to the
protection of Article 75 of this Protocol....226
Article 75 of Protocol I provides in part:
Any person arrested, detained or interned for actions related to the armed conflict
shall be informed promptly, in a language he understands, of the reasons why
these measures have been taken. Except in cases of arrest or detention for penal
offences, such persons shall be released with the minimum delay possible and in
any event as soon as the circumstances justifying the arrest, detention or
internment have ceased to exist.227
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, and view the treatment as compliant with Common Article 3228 as well
as standards set by Congress in the Detainee Treatment Act of 2005 and the Military
Commissions Act of 2006. DOD also points to the 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 criteria in article 4 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.
226 Protocol I art. 45(3).
227 Id. art 75(3). Additionally, Article 75(1) prohibits the following acts “at any time and in
any place whatsoever, whether committed by civilian or by military agents”:
(a) Violence to the life, health, or physical or mental well-being of persons, in
particular:
(i) Murder;
(ii) Torture of all kinds, whether physical or mental;
(iii) Corporal punishment ; and
(iv) Mutilation;
(b) Outrages upon personal dignity, in particular humiliating and degrading
treatment, enforced prostitution and any form of indecent assault;
(c) The taking of hostages;
(d) Collective punishments; and
(e) Threats to commit any of the foregoing acts.
228 See England Memorandum, supra note 14 (asserting that treatment of detainees is
humane and, with the exception of the military commissions found by the Supreme Court
otherwise, compliant with Common Article 3).

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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. 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.229 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.230
It is forbidden to use mental or physical coercion to extract information from
prisoners,231 but tactics such as trickery or promises of improved living conditions are
not foreclosed.232 Article 17 of GPW provides that “[p]risoners of war who refuse
to answer may not be threatened, insulted, or exposed to any unpleasant or
disadvantageous treatment of any kind.” Torture is not permitted in the case of any
detainee, regardless of that person’s status.233
Similar language was contained in the 1929 Geneva Convention.234 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. 235
A British military court convicted several German Luftwaffe officers of improperly
interrogating British POWs236 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
229 For more on military interrogation, see CRS Report RL32567, Lawfulness of
Interrogation Techniques under the Geneva Conventions, by Jennifer Elsea.
230 See ICRC COMMENTARY, supra note 72, at 164.
231 GPW art. 17.
232 See LEVIE, supra note 49, at 108.
233 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.
234 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.
235 See POW DOCUMENTS, supra note 140, at 708.
236 See Trial of Erich Killinger and Four Others, 3 LRTWC 67, excerpts reprinted in POW
DOCUMENTS, supra note 140, doc. no. 70, at 291.

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saboteurs.237 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.238
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.239 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.240 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.241 It may thus be argued that POWs are entitled to some form
of exclusionary rule to keep a forced confession from introduction into evidence at
trial.
Common Article 3 does not supply separate rules or standards for interrogation,
but the prohibition on ill-treatment continues to apply during interrogations.
Therefore, “violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;” the use of hostages; and “outrages upon personal
dignity, in particular humiliating and degrading treatment” are prohibited in
connection with interrogation. Article 75 of Protocol I prohibits “violence to the life,
health, or physical or mental well-being of persons,” including physical and mental
torture, and proscribes “outrages upon personal dignity, in particular humiliating and
degrading treatment, enforced prostitution and any form of indecent assault”; the use
of hostages; and threats to commit any of these prohibited acts.
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.242 Further, there is a distinction between crimes and
237 See id.
238 See id. at 292.
239 See ICRC COMMENTARY, supra note 72, at 163.
240 See LEVIE, supra note 49, 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...”).
241 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.
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.
242 See CRS Report RL31600, The Department of Defense Rules for Military Commissions:
(continued...)

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mere disciplinary violations with respect to the nature and severity of punishment
permitted. The Geneva Conventions do not permit collective punishment without an
individual determination of guilt, nor confinement without a hearing. 243
The military has jurisdiction to try enemy POWs and civilians, including
“unlawful belligerents,” for violations of the law of war.244 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.245
POWs. According to GPW article 102:
A prisoner of war can be validly sentenced only if the sentence has been
pronounced by the same courts according to the same procedure as in the case
of members of the armed forces of the Detaining Power, and if, furthermore, the
provisions of the present Chapter have been observed.
Further, Article 84 provides:
In no circumstances whatever shall a prisoner of war be tried by a court of any
kind which does not offer the essential guarantees of independence and
impartiality as generally recognized, and, in particular, the procedure of which
does not afford the accused the rights and means of defence provided for in
Article 105.
Other procedural guarantees under the GPW include a prohibition on
punishment for ex post facto crimes,246 prompt notification of the charges and a
speedy trial,247 notification to the Protecting Power of the impending trial at least
242 (...continued)
Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform
Code of Military Justice, by Jennifer K. Elsea.
243 See GPW art. 87; GC III art. 33.
244 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.
245 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.
246 GPW art. 99.
247 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
(continued...)

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three weeks in advance,248 right to counsel of the POW’s own choosing or appointed
counsel,249 trial in the presence of a representative of the Protecting Power,250 the
right to appeal a decision,251 and if convicted, the right to serve the sentence under
247 (...continued)
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.
248 GPW art. 104 requires the following information to be reported to the Protecting Power
(see supra note 90) 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.
249 GPW art. 105 provides:
The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence
by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he
deems necessary, to the services of a competent interpreter. He shall be advised of these
rights by the Detaining Power in due time before the trial.
Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or
counsel, and shall have at least one week at its disposal for the purpose. The Detaining Power
shall deliver to the said Power, on request, a list of persons qualified to present the defence.
Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power,
the Detaining Power shall appoint a competent advocate or counsel to conduct the defence.
The advocate or counsel conducting the defence on behalf of the prisoner of war shall have
at his disposal a period of two weeks at least before the opening of the trial, as well as the
necessary facilities to prepare the defence of the accused. He may, in particular, freely visit
the accused and interview him in private. He may also confer with any witnesses for the
defence, including prisoners of war. He shall have the benefit of these facilities until the term
of appeal or petition has expired.
Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well
as the documents which are generally communicated to the accused by virtue of the laws in
force in the armed forces of the Detaining Power, shall be communicated to the accused
prisoner of war in a language which he understands, and in good time before the opening of
the trial. The same communication in the same circumstances shall be made to the advocate
or counsel conducting the defence on behalf of the prisoner of war.
The representatives of the Protecting Power shall be entitled to attend the trial of the case,
unless, exceptionally, this is held in camera in the interest of State security. In such a case the
Detaining Power shall advise the Protecting Power accordingly.
250 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.”).
251 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
(continued...)

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humane conditions.252 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. 107.253 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.254
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.”255 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,256 but these may not be enforced retroactively.257 In
addition, “[n]o sentence shall be pronounced by the competent courts of the
Occupying Power except after a regular trial.”258 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.”259 The accused has the right to counsel of choice and an
interpreter, the right to present evidence necessary to his defense,260 and the right to
appeal a sentence.261 These provisions apply not only in occupied territory but also,
by analogy, to persons interned on the territory of the Detaining Power.262
251 (...continued)
do so.
252 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.
253 GPW art. 101.
254 GPW art. 100.
255 GC art. 64
256 Id.
257 See id. art. 65-66
258 Id. art 71.
259 Id.
260 GC. art. 72.
261 Id. art. 73.
262 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.

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Protected persons have the additional right to have the Protecting Power notified
of the charges263 and may have a representative of that power attend the trial.264 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.265
Chapter IX applies to civilian internees, and provides protection against
duplicate punishment.266 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,267 by confinement in a
penitentiary.268
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.269 At the same time,
the Detaining Power will undoubtedly seek to take all possible precautions to prevent
escape.270 The Geneva Conventions regulate the use of deadly force to prevent an
escape, requiring warning prior to the firing of any shots.271 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
263 Id. art 71.
264 Id. art 74.
265 Id. art 75.
266 Id.art. 118.
267 GC art. 122.
268 Id. art. 124.
269 See LEVIE, supra note 49, at 403.
270 See id. (noting POWs will likely be placed in enclosures made “as escape-proof as
humanly possible”).
271 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.

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punishment is permitted.272 A prisoner who has attempted escape may be subjected
to extraordinary surveillance measures.273
With respect to civilian detainees, the Geneva Conventions permits parties to
a conflict to take “such measures of control and security in regard to protected
persons as may be necessary as a result of the war.”274 However, the most severe
measure of control permissible is assigned residence or internment,275 and collective
punishment is proscribed.276 Confinement is restricted to those awaiting disciplinary
proceedings or criminal trials.277 Persons detained under Common Article 3 may not
be punished without trial.
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.278 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 who 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.279 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.
272 Id. art. 91-95.
273 GPW art. 92; GC art. 120.
274 GC art. 27.
275 Id. art. 41.
276 Id. art. 33.
277 See id. arts. 122 (limiting confinement in conjunction with disciplinary investigation,
including escapes and attempted escapes, to fourteen days) and 124 (confinement for
disciplinary infraction not to be carried out in criminal penitentiary). “Unlawful
confinement” of a protected person is a grave breach. Id. art 147.
278 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.
279 See LEVIE, supra note 49, at 110.

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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
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.”280 However, there is an exception for prisoners who are charged with or
have been convicted of an indictable crime.281 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.282 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.283
Interned civilians must also be released “as soon as the reasons which
necessitated [their] internment no longer exist,”284 which will occur “as soon as
possible after the close of hostilities.”285 There is an exception for internees against
whom penal proceedings are pending or who have been convicted and sentenced for
non-disciplinary offenses.286 These internees may be detained “until the close of such
proceedings and, if circumstances require, until the completion of the penalty.”287A
study by the International Committee of the Red Cross concluded that customary
280 See 1929 Geneva Convention Relative to the Treatment of Prisoners of War art. 75, 47
Stat. 2021 (July 27, 1929).
281 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.
282 See In re Territo, 156 F.2d 142 (9th Cir. 1946).
283 See, e.g. POW DOCUMENTS, supra note 140, 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).
284 GC art. 132.
285 Id. art. 133.
286 GC art. 133.
287 Id.

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international law imposes similar rules with respect to persons deprived of their
liberty in the context of Common Article 3.288
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.289 Detainees have the right to
protest their treatment to the detaining power or to a neutral power or organization
serving as the protecting power,290 and may not be punished for having asserted a
grievance, even where it is considered unfounded.291 (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,”292 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.293 Under the Detainee Treatment Act and the Military
Commissions Act, the detainees have limited recourse to federal courts to challenge
288 See I CUSTOMARY IHL, supra note 219, at 451.
289 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
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
140, 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
140, doc. no. 82 (conviction for “permitting and participating in an illegal and false trial”
of American POWs).
290 GPW art. 78.
291 Id.
292 GPW art. 1.
293 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).

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their status as “enemy combatants,”294 but they are prohibited from invoking their
rights under the Geneva Conventions in connection with such a challenge.
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,295
to define and punish violations of international law,296 and to make regulations to
govern the armed forces.297 Congress also has the constitutional prerogative to
declare war,298 a power it did not formally exercise with regard to the armed conflict
in Afghanistan. By not declaring war, Congress has implicitly limited some
presidential authorities.299
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,300 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,301 to penalize those who aid the escape of an enemy prisoner,302
and to exempt prisoners of war from the entitlement to claim of compensation for
injury or death resulting from war-risk hazard.303 However, prisoners of war are
covered under the jurisdiction of the Uniform Code of Military Justice (UCMJ).304
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
294 Rasul v. Bush, 542 U.S. 466 (2004). However, Congress has since enacted the Detainee
Treatment Act of 2005, P.L. 109-148, title X, and the Military Commissions Act, P.L. 109-
366, which limit the detainees’ access to courts. See infra note 319 et seq., and
accompanying text.
295 U.S. CONST. art. I, § 8, cl. 11
296 Id. art. I, § 8, cl. 10.
297 Id. art. I, § 8, cl. 14.
298 Id. art. I, § 8, cl. 11.
299 See CRS Report RL31133, Declarations of War and Authorizations for the Use of
Military Force: Background and Legal Implications, by Jennifer K. Elsea and Richard F.
Grimmet.
300 10 U.S.C. § 956(5).
301 10 U.S.C. § 1483.
302 18 U.S.C. § 757.
303 42 U.S.C. § 1701.
304 See 10 U.S.C. § 802(a)(9).

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the hostilities and U.S. objectives borrow some characteristics from the realm of law
enforcement and others from a model based on conventional war. Consequently, the
role of Congress might be seen as particularly important in providing a definition and
a set of boundaries to shape how such a war is to be fought. Courts have not been
receptive to the argument that the President has the inherent authority to determine
how to pursue the war against terrorism. However, Congress’s enactment of the
Detainee Treatment Act and the Military Commissions Act, by restricting the
Guantanamo Bay detainees’ access to U.S. courts, may limit the opportunity for any
judicial testing of whether executive actions comply with congressional
authorization.
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”) provided 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.305
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.
305 For more information, see CRS Report RL32395, U.S. Treatment of Prisoners in Iraq:
Selected Legal Issues, by Jennifer K. Elsea.

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109th Congress
Congress passed the Detainee Treatment Act of 2005 as part of both the FY2006
defense appropriations306 and authorization acts.307 In addition, the National Defense
Authorization Act of 2006, P.L. 109-163, requires the Secretary of Defense to
establish a uniform policy with respect to the role of military medical and behavioral
science personnel in the interrogation of detainees, which was to be reported to the
congressional defense committees by March 1, 2006 (§ 705). The House of
Representatives passed language in its foreign relations authorization bill for FY2006
and FY2007 (H.R. 2601) to express the sense of the Congress affirming the necessity
of interrogation operations at Guantanamo Bay.
Detainee Treatment Act of 2005. The Detainee Treatment Act of 2005
(DTA) requires uniform standards for interrogation of persons in the custody of the
Department of Defense308 and expressly bans cruel, inhuman, or degrading treatment
of detainees in the custody of any U.S. agency.309 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.310 The provision does not
create a cause of action for detainees to ask a court for relief based on inconsistent
treatment, and it divests the courts of jurisdiction to hear challenges by those detained
at Guantanamo Bay based on their treatment or living conditions.311 It also provides
a legal defense to U.S. officers and agents who may be sued or prosecuted based on
their treatment or interrogation of detainees.312 This language appears to have been
306 Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes
in the Gulf of Mexico, and Pandemic Influenza Act of 2006, Title X, P.L. 109-148, 119 Stat.
2680 (2005).
307 National Defense Authorization Act for Fiscal Year 2006, Title XIV, P.L. 109-163, 119
STAT. 3136 (2006).
308 Section 1402 of P.L. 109-163 requires 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 K. Elsea.
309 Section 1403 of P.L. 109-163. See CRS Report RS22312, Interrogation of Detainees:
Overview of the McCain Amendment, by Michael John Garcia.
310 Section 1403(d) of P.L. 109-163. For more information, see CRS Report RL32438, U.N.
Convention Against Torture (CAT): Overview and Application to Interrogation Techniques,
by Michael John Garcia.
311 Section 1405 of P.L. 109-163 (denying aliens in military custody privilege to file writ of
habeas corpus or “any other action against the United States or its agents relating to any
aspect of the[ir] detention...”).
312 Section 1404 of P.L. 109-163 provides a defense in litigation related to “specific
operational practices,” involving detention and interrogation where the defendant
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added as a compromise, because the Administration reportedly sought to have the
Central Intelligence Agency excepted from the prohibition on cruel, inhuman, and
degrading treatment on the grounds that the President needs “maximum flexibility
in dealing with the global war on terrorism.”313
The DTA also includes a modified version of the Graham Amendment (S.Amdt.
2516 to S. 1042, “the Graham-Levin Amendment”),314 which requires the Defense
Department to submit to the Armed Services and Judiciary Committees the
procedural rules for determining detainees’ status.315 The amendment neither
authorizes nor requires a formal status determination, but it does require that certain
congressional committees be notified 30 days prior to the implementation of any
changes to the rules. As initially adopted by the Senate, the amendment would have
required these procedural rules to preclude evidence determined by the board or
tribunal to have been obtained by undue coercion; however, the conferees modified
the language so that the tribunal or board must assess, “to the extent practicable ...
whether any statement derived from or relating to such detainee was obtained as a
result of coercion” and “the probative value, if any, of any such statement.”
The DTA also eliminates the federal courts’ statutory jurisdiction over habeas
claims by aliens detained at Guantanamo Bay,316 but provides for limited appeals of
status determinations made pursuant to the DoD procedures for Combatant Status
Review Tribunals (CSRTs).317 The Supreme Court interpreted the act to find that at
least some habeas corpus claims pending on the day of enactment were not
affected.318 The D.C. Circuit Court of Appeals has exclusive jurisdiction to hear
312 (...continued)
did not know that the practices were unlawful and a person of ordinary sense and
understanding would not know the practices were unlawful. Good faith reliance
on advice of counsel should be an important factor, among others, to consider in
assessing whether a person of ordinary sense and understanding would have
known the practices to be unlawful.
313 See Eric Schmitt, Exception Sought in Detainee Abuse Ban, N.Y. TIMES, Oct. 25, 2005,
at 16.
314 151 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).
315 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.
316 For more information and analysis of the DTA, see CRS Report RL33180, Enemy
Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea
and Kenneth Thomas.
317 Section 1405(e). Sen. Bingaman offered a second-degree amendment to eliminate the
provision, but it was not adopted.
318 Hamdan v. Rumsfeld, 548 U.S. __ (2006). For an overview of the Supreme Court decision,
see CRS Report RS22466, Hamdan v. Rumsfeld: Military Commissions in the ‘Global War
(continued...)

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appeals of any status determination made by a “Designated Civilian Official,” but the
review is 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 procedural rule regarding the use of evidence obtained through
undue coercion applies prospectively only, so that detainees who have already been
determined by CSRTs to be enemy combatants may not base an appeal on the failure
to comply with that procedure. Detainees may also appeal status determinations on
the basis that, “to the extent the Constitution and laws of the United States are
applicable, whether the use of such standards and procedures to make the
determination is consistent with the Constitution and laws of the United States.”
Jurisdiction ceases if the detainee is transferred from DoD custody.
The Military Commissions Act of 2006. After the Court’s decision in
Hamdan, Congress passed the Military Commissions Act of 2006 (MCA), which
amends the DTA provisions regarding appellate review and habeas corpus
jurisdiction.319 It expands the DTA to make its CSRT review provisions the exclusive
remedy for all aliens detained as enemy combatants, not just those housed at
Guantanamo Bay, Cuba.320 The MCA revokes U.S. courts’ jurisdiction to hear
habeas corpus petitions by all aliens in U.S. custody as enemy combatants, including
lawful enemy combatants, regardless of the place of custody. This amendment takes
effect on the date of its enactment and applies to “all cases, without exception,
pending on or after the date of [enactment] which relate to any aspect of the
detention, transfer, treatment, trial, or conditions of detention of an alien detained by
the United States since September 11, 2001.” Section 5 of the MCA specifically
precludes the application of the Geneva Conventions to habeas or other civil
proceedings.321
The MCA sets forth detailed definitions of crimes that constitute “grave
breaches” of Common Article 3.322 In addition, the Act provides that the President
shall have the authority to interpret the meaning of the Geneva Conventions.323 The
318 (...continued)
on Terrorism,’ by Jennifer K. Elsea.
319 Military Commissions Act of 2006 (MCA), P.L. 109-366. For a description of the
procedures associated with these military commissions, see CRS Report RL33688: The
Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with
Previous DOD Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea.
320 The final decisions of military commissions are also appealable. See CRS Report
RL33180.
321 MCA § 5(a) provides that “No person may invoke the Geneva Conventions or any
protocols thereto in any habeas corpus or other civil action or proceeding to which the
United States, or a current or former officer, employee, member of the Armed Forces, or
other agent of the United States is a party as a source of rights in any court of the United
States or its States or territories.”
322 See CRS Report RL33662, The War Crimes Act: Current Issues, by Michael John Garcia.
323 MCA § 6(a)(3)(A) provides that “the President has the authority for the United States to
(continued...)

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intended effect of this provision is somewhat unclear. Although the President
generally has a role in the negotiation, implementation, and domestic enforcement
of treaty obligations,324 this power does not generally extend to “interpreting” treaty
obligations, a role more traditionally associated with courts.325 Instead, the language
appears to be intended to establish the authority of the President within the Executive
Branch to issue interpretative regulations by Executive Order,326 although the
President and the Department of Defense have traditionally exercised such authority
without specific legislation.
323 (...continued)
interpret the meaning and application of the Geneva Conventions and to promulgate higher
standards and administrative regulations for violations of treaty obligations which are not
grave breaches of the Geneva Conventions.”
324 See, e.g., id. (President is given power to promulgate higher standards and administrative
regulations for violations of treaty obligations).
325 See, e.g., MCA § 6(a)(3)(B)(“No foreign or international source of law shall supply a
basis for a rule of decision in the courts of the United States in interpreting the prohibitions
enumerated in subsection (d) of such section 2441.”).
326 MCA § 6(a)(3)(B).

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