Political Science 378
Spring 2003
Just in Case You Wanted to Know: Prisoners of War versus Unlawful Combatants
The transport of captured Al Qaeda and Taliban fighters to Guantanamo
Bay, Cuba has led to questions such as: what does it take to be considered
a POW? What is the difference between being a POW and an “unlawful
combatant?” Here is a brief summary of the issues. If you hunt
around the web, I’m sure you can find a lot more information. Please
remember; I am not a lawyer.
What criteria must be met for someone to be considered a prisoner of war?
According to Article 4 of the Geneva Convention, 4 criteria must be satisfied
for persons captured during a conflict to be considered prisoners of war:
1. They must be commanded by a person responsible for his/her subordinates.
2. They must have “a fixed distinctive sign recognizable at a distance."
3. They must carry their armament openly.
4. They must conduct operations “in accordance with the laws and customs
of war.”
So the Geneva Convention does cover people who are fighting, but who
are not part of regular military forces. However, the Convention
is only meant to cover those people who are acting in a manner very similar
to regular military forces. That is, there may be reasons why your
forces do not wear uniforms (no money, for example), but to qualify for
the Geneva Convention your forces must be acting as much as possible like
regular military forces.
Even if a person is not deemed to be a prisoner of war, she or he still
qualifies for “humane treatment” under a UN General Assembly resolution
adopted in 1988 (“Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment”).
What is the relationship of the legal status of captured Al Qaeda and
Taliban fighters and the military tribunals?
In terms of their treatment, adherence to the 1988 UN resolution means
that how they are held is probably little different than if they were considered
to be POWs. But there are other ramifications of their status (remember;
I’m not a lawyer). The 1942 Supreme Court ruling that military tribunals
can be used was based on a case where the individuals were clearly unlawful
combatants (i.e., were not POWs). POWs are entitled to a variety
of protections that were not addressed in President Bush’s military order
of November 13, 2001.
What difference does it make that they are being held in Guantanamo Bay,
Cuba?
The 1950 Supreme Court decision Johnson v Eisentrager held that enemy aliens
who have not entered the United States are not entitled to access to US
courts. Under this ruling, the recourse the prisoners have about
a change in status, etc., is to appeal through the Executive Branch, not
the court system. But it is not clear whether this decision applies
to the current situation, since there are other ways to construe the legal
situation (I’ll let the lawyers figure this out).
Is there a difference in what ultimately happens to the prisoners, depending
on whether they are considered to be POWs or unlawful combatants?
Possibly. Article 118 of the Geneva Convention requires that POWs
be "repatriated without delay after the cessation of active hostilities."
Of course, in a situation such as Afghanistan, determining the end of active
hostilities can be difficult. But ultimately, POWs are supposed to
be released. The Bush administration has to be concerned that these
individuals (particularly Al Qaeda) would try to commit terrorist acts
against the US. I cannot find anything that stipulates such a requirement
for persons not considered as combatants by the Geneva Convention.
One could argue, however, that even if the prisoners are considered to
be POWS, as long as the US government is engaged in a conflict against
world-wide terrorism, Article 118 does not come into play.
Additional information:
What is an
"Unlawful Combatant," and Why It Matters
The
1949 Geneva Convention