Crimes of War

January 2002

Michael Noone,
A Professor of International and Comparative Law at Catholic University of America and a former Judge Advocate in the US Air Force.
Interviews and Introduction by Stacy Sullivan

The Administration does not believe that the detainees at Camp X-ray qualify for POW status under the Geneva Conventions, however, it has been said that the detainees will continue to be treated humanely following the principles of the Geneva Conventions. The Executive Branch is making a distinction between the two classes of detainees being held as Taliban and Al Qaeda, and then offers a rationale for why neither category satisfies Geneva Convention [POW] criteria. As to the Taliban, President Bush says that although they are members of an army that belongs to a state, the reason that they are not being granted POW status is that they don’t satisfy all four fundamental criteria of Article 4 of the Third Geneva Convention. The Administration says that those people who are identified as Taliban detainees will be treated humanely but don’t qualify for POW treatment. Those detainees who have been identified as Al Qaeda simply don’t qualify for POW treatment because they don’t satisfy any of the conditions of the Geneva Conventions.

I agree with the Administration. Some people saw Article 5 of the Convention which calls for a battlefield screening to see whether or not they qualify. Some humanitarian folks complained that the United States had never undertaken that screening. The US is saying that we never undertook the screening because there isn’t any doubt. I don’t have enough facts to disagree. Nobody has ever said that any of these Taliban folks who were captured satisfied Geneva Convention requirements. We’ve never seen anybody in a uniform, much less meeting all four conditions. There is no reason to doubt the White House announcement unless you’re just profoundly suspicious of the Executive Branch.

I’ve never heard anybody advance any evidence that the detainees met all four requirements. Presumably they had a chain of command. With the Taliban, it’s possible that they satisfied some of the conditions. But I’ve never seen any evidence that they satisfy all four characteristics. We’ve never seen a picture of them showing some identifying characteristics, which segregated them from the community. Maybe it’s possible, but literally we haven’t seen any evidence of that.

In the Teheran rescue mission the US Special Forces were not wearing uniforms, but they were wearing something that distinguished them enough so that if they got involved in combat, they could claim Geneva Convention protection.

There are going to be people who think that although Taliban prisoners don’t meet Geneva Convention qualifications they, as a matter of simple humanitarian policy, should be given those protections. That’s a legitimate point of view, but from a legalistic point of view, it doesn’t look like the Taliban satisfy the conventions, even though they belong to an army. Al Qaeda has a double problem because they don’t belong to an army.

The Taliban may well have abided by the laws of war and they may very well have had a hierarchal structure. Some of them may have carried their arms openly but according to the letter of the law, apparently they did not satisfy that fourth characteristic of some identifying sign, at least I think that is the way the Executive Branch has justified their behavior and there is no evidence out there that seems to suggest otherwise.

By not according the detainees with POW status, the United States can engage in some nice little legalistic hair-splitting. It’s saying we adhere to the principles, we’re not going to torture them, we’re going to feed them and all of those good things, but we don’t have to, for example, give them quarters equivalent to that of the detaining power. The advantage to not granting the detainees POW status is duel. The first, I’m guessing, is that if they are POWs, once the hostilities are over, they must be released.

The second advantage, arguably, is that if they were tried for offenses, then the Geneva Conventions would suggest that they would have to be tried by the same rules and processes the detaining power would use with its own soldiers. If they are not POWs, you can use military tribunals and you don’t have to worry about a court-martial. Obviously, they can’t be kept indefinitely. We can’t hold people forever, but we don’t have to instantaneously release them when hostilities are over.

I think the only disadvantage to not granting the detainees POW status is that public opinion doesn’t accept the Administration’s rationale.

As for the argument that denying the detainees POW status might cause trouble for US soldiers should they be captured, there is no reason to think that US soldiers who qualify are going to automatically be accorded POW status. The Army major who was shot down in the Gulf War definitely did not get treated according to the Geneva Conventions. She was very severely abused by her captors and she was in uniform. The kinds of people that we are liable to be confronting to these kinds of wars are not likely to follow the Conventions anyway. It’s arbitrary and capricious. We hope that our people who qualify for Geneva Convention status will be accorded it. The people I worry about more are the Special Forces who are floating around not in uniform. There, the United States would say in effect, we are treating your special operatives more or less the way we hope that you will treat ours – in a humanitarian way even though they don’t qualify for Geneva Convention rules. I think that the kind of people that US Forces are going to be fighting are going to make judgments based on their inclinations at the moment.