Crimes of War

January 2002

H. Wayne Elliott, S.J.D.
Lt. Col. (Ret.) U.S. Army Former Chief, International Law Division; Judge Advocate’s General School, U.S. Army
Interviews and Introduction by Stacy Sullivan

It must be emphasized, right at the beginning of any discussion, that regardless of the technical status of these people, the United States military will continue to treat them humanely. Also, it should be recognized that no matter the status of an individual, that person can be prosecuted for violations of the law of war.

I have not seen a well-stated rationale for not declaring them prisoners of war. It is possible that the problem started right after the attacks of 11 September. An early issue was what crimes had been committed by the people that actually hijacked the planes and flew them into the buildings. One of those crimes was that of being an "unlawful combatant." This offense is along the lines of deliberately endangering the civilian population by blending in with the civilian population. If you are not in a uniform, you endanger all the true civilians because the other side can't distinguish one from the other. That term-- "unlawful combatants"-- was being used in connection with possible future prosecutions of members of a criminal conspiracy known as Al Qaeda.

Once the United States got involved in the ground war in Afghanistan and actually took some people into custody, a decision had to be made as to what to do with the captives. But the term unlawful combatant was still being used in a criminal law sense. The question of status under the Geneva Conventions is a different issue. For purposes of the Geneva Conventions, the proper terms are "protected persons," i.e., captives who enjoy the protections of the Convention, or "unprivileged belligerents," i.e., captives who do not enjoy the privileges of the Geneva POW Convention.

Today, we have members of Al Qaeda in custody, along with members of the Taliban army. So what are these people? The answer is found in Article 4 of the Geneva POW Convention.

The requirements for prisoner of war status are set out in Article 4 of the Convention. The first paragraph says that certain people will be prisoners of war. This group includes members of the regular army as well as "members of militias and volunteer corps forming part of such armed forces." If Al Qaeda fits within the first paragraph, they are prisoners of war. Of course, the implication is that all these people will have a uniform, and a command structure and everything else that goes with being a soldier. But there is no specific requirement for any of this in the first paragraph. So members of Al Qaeda might well be entitled to POW status. It all depends on how Al Qaeda was, or is, structured. What was the relationship between Al Qaeda and the Taliban Army, the regular army of the State of Afghanistan? If Al Qaeda falls within the terms of paragraph 4A(1), its members should be held as prisoners of war.

Now, to the second paragraph. Here we find coverage for "members of other militias and members of other volunteer groups." But to gain coverage four requirements must be met. These are basically: 1) a command structure; 2) a fixed and recognizable sign; 3) carrying arms openly; and 4) following the laws of war.

What needs to be determined initially is the relationship between Al Qaeda and the regular Afghan army. If Al Qaeda is not really part of the Taliban army, but instead an "other" militia or volunteer corps, under 4A(2), then its members must meet the four additional requirements to be considered POWs. [Of course, none of this has anything to do with our ability to prosecute these people for violations of the law of war. They can be accused of and prosecuted for war crimes regardless of their status under the Geneva Convention.]

Now, let's look at the four requirements under 4A(2), specifically as regards the hijackers. To an extent the United States has provided them the first element, that of having a commander, because we put out charts, or wanted posters, with Osama bin Laden at the top, and a second tier which we described as his lieutenants. We have made the argument that he is in charge of these people and a video tape has been shown of him talking about his subordinates who carried out the attacks at his direction. There is at least a semblance of a chain of command there.

How about the recognizable sign? Tapes have been played on TV of the "training camps" run by Al Qaeda. The people training in those camps were in uniforms which were not too dissimilar from what the US forces wear. The uniform requirement doesn't always apply. A soldier is allowed to infiltrate the other side's lines, and be in their uniform or civilian clothes while doing so. What cannot be done is fight in the other side's uniform or, arguably, in civilian clothes. Of course, the actual hijackers were in civilian clothes at least when they got on the plane. Nobody knows whether or not they put on a red bandana or something like that before they actually stood up with their knives.

Obviously they carried their weapons openly at that point, because we know that they did have knives and used these as weapons to take the hostages.

The last requirement, that of complying with the laws of war is a problem for Al Qaeda. The question is whether or not Al Qaeda-- as an institution-- has complied with the laws of war. If, as has been demonstrated, the hijacking mission was run from the top by Osama bin Laden and he ordered these people to fly the planes into civilian targets, then that hardly is complying with the laws of war. But, even if Bin Laden had no intention of complying with the law of war, that does not automatically mean that every member of Al Qaeda can be denied POW status unless, of course, that individual can be shown to have participated in the unlawful decision making process. And that is a matter best left to a judicial tribunal.

None of the three main arguments raised against granting POW status has great merit. One is that if they are prisoners of war, interrogation must cease. That's ridiculous. It does not have to stop. If they are prisoners of war, they have to give 4 items of information. That's all they have to give, but we can ask them for more information. We can ask indefinitely for more. We obviously can and will continue to interrogate them as long as we think they have some information that we need to get at. Interestingly, according to the Conventions, if the captive does not have those 4 items of information, he loses any entitlement to POW status. If they don't have it anyway, exactly what have they lost?

The second argument is that if they are prisoners of war, they have to be sent back home at the conclusion of hostilities. Well, that's true. But there is no guidance on how you decide when the hostilities are over. So, if we look at a group like Al Qaeda that uses terrorism as their MO, then as long as there is the threat of more terrorist attacks, these people simply do not go home. We hold them indefinitely because we still have an on-going war against terrorism.

The third argument is that if they are prisoners of war, we can't try them before a military commission. That is not true. An American soldier can be tried before a military commission. Our policy is to try our soldiers accused of acts which violate the law of war in a court-martial, but that's all it is - a policy - not a matter of law. The military commission would have to meet the requirements of the Geneva Conventions, but the difference between a military commission and a court-martial is that a court-martial must meet all of the requirements of the US Constitution for a trial and that could include all of the evidentiary rules, while a military commission does not.

Contrary to what some have said, even in a military tribunal, there is an appeal, through the habeas process. The accused would have to bring a writ of habeas corpus in a federal court arguing that the military court had no jurisdiction in the first place. The issue of jurisdiction could be reviewed by the federal court regardless of what the President's Executive Order says. So there is an appeal, though not a regular criminal appeal. That same rule would apply to an American soldier who got caught up in a military commission.

We tell our soldiers on the ground that everybody who comes into their custody will be treated as a prisoner of war. We could easily set a bad precedent concerning these captives. The drawback is that we have given the other side some ammunition when they capture our people. Of course the argument is that we always fight in uniform, so therefore we are entitled to the privileges accorded POWs. Yet, on the very day these issues were being publicly discussed, the special forces in Afghanistan put on NY Yankee baseball hats before engaging in a mission. We could say that this was at least part of a uniform. But what if the other side does not agree? Baseball hats can be bought anywhere, including Kabul. So we don't always fight in uniform. What happens if it's the middle of the night and our soldiers are asleep in the barracks and are suddenly attacked? They run out and fight in their underwear and are captured. Are we going accept an argument that they are not prisoners of war because they didn't put on their uniforms?

I am positive that the United States is not violating the spirit of the Geneva Conventions. There are some technical requirements that we say we are not going to meet. At this point Guantanamo is little more than a collection point. It is not really a permanent camp. The captives are there because it is safer for them and for us.

The Administration has said that they are not prisoners of war but we are going to treat them as if they are. The problem comes because we are then picking and choosing which provisions of the Geneva Conventions we want to follow. We are not going to set up prisoner accounts for them and pay them or do some of the other housekeeping things. One argument against this has been that it is the US taxpayer who pays the costs of such compliance. We have frozen all of the Al Qaeda bank accounts that we can find and these accounts can be tapped to pay these costs. Afghanistan, as the country in whose forces they were serving when captured, would normally pay the costs of holding them. But, there is no prohibition on using Al Qaeda assets to do the same thing.

But all of those things like paying them money and setting up a canteen, and the right to have people ship in books or musical instruments or scientific instruments are really geared to permanent camps. The idea is their own country or the Red Cross might be able to give them these things to set up their own in-camp education. Security is always a valid reason for deviating from these requirements. But, to deny these privileges because of the negligible costs involved has very little appeal.

We know that some of these captives are members of the Taliban military forces. One of them is, according to the media, the chief of staff. What can he be if not a prisoner of war? The cleanest way to handle these people would have been to declare them all prisoners of war, hold Article 5 tribunals, and cull out all of those who do not meet the requirements.

The people being held there may well include individuals who were involved in the conspiracy to attack the World Trade Center and the Pentagon and other improper targets which may yet be attacked. Of course, they can be prosecuted for these pre-capture offenses. But what if they commit post-capture offenses? If they are POWs, then post capture offenses can be prosecuted in a court-martial. But if they are not POWs and commit an assault and battery on one of the guards in Guantanamo, what trial forum is available? They might be prosecuted under a federal statute. That would mean bringing them into the United States and trying them in civilian court, presuming all the usual jurisdictional problems could be solved. This could place extremely dangerous people in our prisons. Our law and prior practice envisions them being subject to the Uniform Code of Military Justice. But if they are not officially and formally POWs, they are not subject to the Code and can not be tried for any post-capture offense in a court-martial.

If they are not prisoners of war and we are holding them, then they must be civilians, and they would fall under Civilians Convention. But that is another issue.