In this handout photo from the Department of Defense Taliban and al-Qaida detainees in orange jumpsuits sit in a holding area under the watchful eyes of military police at Camp X-Ray at Naval Base Guantanamo Bay, Cuba, during in-processing to the temporary detention facility on Jan. 11, 2002. (AP Photo/Shane T.McCoy, U.S. Navy)

When Taliban and Al Qaeda detainees at Camp X-ray in Guantanamo Bay were pictured kneeling and shackled in chain-link cages in January, European politicians and human rights activists angrily alleged that the United States was in clear violation of the Geneva Conventions, which govern how a detaining power must treat prisoners of war. The Third Geneva Convention states that POWs must be spared "outrages upon personal dignity," "humiliating and degrading treatment," as well as "insults and public curiosity," - all of which was violated in the above photograph released by the US Department of Defense.

The Bush Administration promptly announced that it did not consider the captives to be POWs, but rather "unlawful combatants." However, denying the detainees POW-status does not change the way the United States is legally obligated to treat them. Both the Geneva Conventions and human rights law mandate that that Washington treat detainees humanely regardless of whether or not they are considered to be POWs. However, by declaring that the detainees are "unlawful combatants," the Bush Administration is effectively saying that the Al-Qaeda and Taliban detainees are not entitled to the protections specified under the Geneva Conventions which provide them with immunity from prosecution for lawful acts of war.

That announcement sparked further outrage and allegations that the United States was flouting international law. In February, the White House reaffirmed its position that it did not consider the detainees to be POWs. However, the Administration said that it would treat the detainees in accordance to the standards set forth by the Geneva Conventions, which would entitle the detainees to visits from the International Committee of the Red Cross, medical care, the right to practice their religion, the opportunity to communicate with their families as well as other amenities.

To shed light on whether or not the Al Qaeda and Taliban detainees in Guantanamo qualify for POW status, the Crimes of War Project interviewed a number of legal experts. Most of our experts disagreed with Bush Administration. They all cited Article 4 of the Third Geneva Convention, which defines prisoners of war as "Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces." According to the Convention, members of a regular army are automatically entitled to POW status, whereas members of militias or volunteer corps must meet the following four criteria:

1. Having a chain of command
2. Wearing a uniform or some sort fixed or distinctive sign
3. Carrying their arms openly
4. Conducting their operations in accordance with the laws and customs of war

Most of our experts said they believed that the Taliban fell under the first category – that of being the regular army of Afghanistan – and are therefore entitled to POW status.

The Bush Administration, however, claims that the Taliban fall under the category of irregular forces, and must therefore be subject to meeting the four criteria.

"The Administration is applying the wrong part of the Conventions. They have invoked the provisions for irregular combatants not under Article 4-1, but under Article 4-2. They are treating them as though they are guerrillas or partisans who were fighting for a party to the conflict. And that’s wrong in my view," said Robert Goldman, professor of law and co-director of the Center for Human Rights and Humanitarian Law at the Washington College of Law, American University.

But even according to the criteria specified for irregular forces, most of our experts believe the Taliban detainees, and possibly Al Qaeda as well, although there is less agreement on this point, would be entitled to POW status. They cited Article 5 of the Third Geneva Convention, which says that if there is any doubt as to whether or not the detainees meet the conditions, then they should be granted POW status until a "competent tribunal" determines otherwise.

"We don’t have the facts. We don’t know to what extent these people had a proper command structure, wore some sort of distinguishing features and complied with the laws of armed conflict. We just don’t know," said APV Rogers, OBE, a retired major general in the British Army and recognized expert on the laws of war.

Curtis Doebbler, Professor of Human Rights Law at American University in Cairo, who served as an advisor to the Taliban government on the laws of war and believes that the Taliban, unlike Al Qaeda, do meet the criteria enumerated in Article 4. But he agreed that we do not have all of the facts. "The first thing is to determine the status of the detainees, and until a competent tribunal declares that they are not POWs, then they are. After that, you can have legal wrangling over the criteria in the Geneva Conventions," he said.

The Bush Administration, by contrast, is claiming that there is no doubt. In its view, neither Al Qaeda nor the Taliban are eligible for POW status because they did not wear uniforms or otherwise "distinguish themselves from the civilian population of Afghanistan" or "conduct their operations in accordance with the laws and customs of war"—an argument that is disputed by the majority of our experts.

Most of our experts believe that the United States had little to gain by denying the detainees POW status. All disagreed with assertions by the media that giving the detainees POW status would prohibit the United States from interrogating the Al Qaeda and Taliban soldiers. They acknowledged that POWs are only obliged to give their name, rank, serial number and date of birth, but they said nothing in the Convention precludes the detaining power from asking for more.

They also disagreed with assertions that granting the detainees POW status would mean that the United States would have to release them upon the cessation of hostilities. The Geneva Conventions state that POWs must be released unless they are charged with war crimes. Nothing in the Conventions would preclude Washington from charging them and keeping them in custody until they could face a judicial process.

Some of our experts said they feared the Administration’s decision could come back to haunt US soldiers should they ever be captured by a foreign enemy, particularly special forces who usually don’t wear uniforms. "I think we may have set a bad precedent. The drawback is that we have given the other side some ammunition when they capture our people," said H.Wayne Elliott, a retired US Lieutenant colonel and former chief of the international law division at the US Army’s Judge Advocate General’s School.

However, Michael Noone, a professor of international and comparative law at Catholic University of America and a former Judge Advocate in the US Air Force, disagreed. "The kinds of people that we are liable to be confronting in these kinds of wars are not likely to follow the Conventions anyway. It’s arbitrary and capricious," he said.

Back to top