XXVI. Al Qaeda And Taliban Detainees-An Examination of Legal Rights and Appropriate Treatment

• Author: James Terry
• Pages: 441

Introduction The war against the terrorists who attacked the United States on September 11, 2001, is a new kind of international conflict. It does not represent traditional warfare between states adhering to the law of armed conflict.

Rather, it reflects non-traditional violence against states and innocent civilians by individuals or groups for political ends without regard to the civilized behavior on the battlefield that underpins the four 1949 Geneva Conventions, including the Convention Relative to the Treatment of Prisoners of War (Geneva Convention III).2

1. James Terry is a retired Marine Colonel currently serving as the Deputy Assistant Secretary of State for Regional, Global and Functional Affairs in the Bureau of Legislative Affairs within the US Department of State. The views expressed in this paper are the views of the author alone.

2. See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, Art. 2, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31;

   Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949,6. U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S.

   85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,

   T.I.A.S. No. 3364, 75 U.N.T.S. 135 [hereinafter GC III]; Convention Relative to the Protection The perpetrators of the September 11th violence, the al Qaeda organization, were protected and given safe haven in Afghanistan by the Pushtun Taliban militia. Although the Taliban was the strongest of the ethnic militias in Afghanistan by mid-2001, it was unable to conduct normal foreign relations or to fulfill its international legal obligations. Because the Taliban militia consistently refused to comply with UN Security Council Resolutions 1333 (2000), 1267 (1999) and 1214 (1998),3 independent press reports concluded that it had become so subject to the domination and control of al Qaeda that it could not pursue independent policies with respect to other states.4

   While the US-led coalition together with Afghan Northern Alliance forces were successful in crushing al Qaeda and the Taliban in Operation ENDURING FREEDOM, the detainees captured in Afghanistan and transported to Guantanamo Bay, Cuba for post conflict disposition raised issues not addressed since the Vietnam Conflict when Viet Cong forces were captured in South Vietnam. Although.entitled only to Common Article 3 status under 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 IV]. These four conventions are all reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts and Richard Guelff eds., 3rd ed., 2000) [hereinafter DOCUMENTS ON THE LAWS OF WAR]; and in THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS, Dietrich Schindler andJiriToman eds., 3rd ed. 1988). Treaty texts are also available at the International Committee of the Red Cross website at http://www.icrc.org/eng (Jan. 3, 2003).

3. Security Council Resolution 1333 'strongly condemn [ed]' the Taliban for the 'sheltering and training of terrorists and [the] planning of terrorist acts,' and 'deplor[e'd] the fact that the Taliban continues to provide a safe haven to Usama bin Laden and to allow him and others associated with him to operate a network of terrorist training camps from Taliban controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operations.' U.N. SCOR55th Sess., U.N. Doc. S/1333/(2000). In its preamble, Resolution 1267 found.that the Taliban's failure to comply with the Council's 1998 demand in Resolution 1214 to terminate the use of Afghanistan as a base from which to sponsor international terrorism constituted a threat to the peace. U.N. SCOR 54th Sess., U.N. Doc. S/1267/(1999). Paragraph 13 of Resolution 1214 enjoined the Taliban from providing a sanctuary and training for terrorists.

   U.N. SCOR 53d Sess., U.N. Doc. S/1214/(1998).

4. See, e.g., Michael Dobbs and Vernon Loeb, 2 U.S. Targets Bound By Fate, WASH. POST, Nov.

   14, 2001, at A22.

   each of the four Geneva Conventions,5 the Viet Cong prisoners were nevertheless treated as prisoners of war (POWs).6

   Simply stated, the issues presented US officials in Afghanistan required (1) a determination whether the 1949 Geneva Conventions applied to the conflict represented by Operation ENDURING FREEDOM and Operation ANACONDA; and (2), if so, whether members of al Qaeda as a group and the Taliban individually or as a group are entitled to POW status under Geneva Convention III.

   The Application of the Laws of War in Afghanistan Following the post-World War II review of serious breaches of customary international law and the Hague Conventions of 1899 and 1907 by the Axis Powers, a diplomatic conference invested nearly three years writing the four Geneva Conventions designed to regulate treatment of those individuals who become victims of warfare. These four conventions, like other treaties, establish legal relationships between nations, not between nations and groups or nations and subnational organizations.7 The United States and Afghanistan are both High Contracting Parties to the Conventions,8 including Geneva Convention III, and are thus bound by their terms and provisions.

   Under Geneva Convention III, individuals entitled to POW status upon capture include members of the regular armed forces of a party, the militia, and those volunteers and volunteer units fighting with the regular armed forces of a party.9 Irregular forces, including militia and volunteers, fighting apart from the regular armed forces, can also qualify for POW status when captured, provided they are serving under an authority responsible for their conduct, are in uniform or are wearing a distinctive sign recognizable at a 5. Common Article 3 appears in each of the four 1949 Geneva Conventions and addresses individuals and groups who do not represent a government or state but rather an insurgency or opposition group to the recognized regime. Unlike the Viet Cong, however, neither the Taliban nor al Qaeda were factions within a state with a recognized central government. Like the Viet Cong, however, they were fighting an international coalition of the willing within the recognized borders of a nation, despite its lack of central government, which was a high contracting party to the Geneva Conventions.

6. See Contemporary Practice of the United States, 62 AM. J. INT'L L. 766-768 (1968) citing MACV, Annex A of Directive No. 381-46, December 27, 1967.

7. See U.S. ex rel Saroop v. Garcia, 109 F.3d 165, 167 (3d Cir. 1997) where the court stated that '[Tjreaties are agreements between nations.' 8. The United States became a party on July 14, 1955 while Afghanistan acceded on Sep. 26, 1956.

9. GC III, supra note 2, art. 4(A) (1) & 4(A) (4).

   distance, carry their arms openly, and conduct operations in a manner consistent with the laws of war.10

   When a captive's status as a POW is challenged because a party believes the individual did not meet the criteria set forth above, that individual is to be accorded POW treatment until a tribunal convened by the captor state reviews the facts and makes a determination.' Similarly, when an individual's belligerent status is not clear upon falling into the hands of the enemy, that individual enjoys the protection...