Prisoner of War - A controversial status

Master's Thesis, 2009

37 Pages, Grade: 2,4


Table of Contents

A) Summary

B) Introduction
I. Humanitarian Right
II.Armed Conflict.
III. Protected groups.
1. The Taliban soldiers
2. The members of Al-Qaeda captured within the Afghanistan Conflict
3. The Al-Qaeda members captured within the "War on Terror" beyond the Afghanistan Conflict
IV. Status determination in doubtful circumstances
1. Cases of doubt
2. Competent tribunal
V. The State Practise of the USA.
VI. Due process rights.
1. Right to employ a lawyer
2. The writ of habeas corpus
VII . Criminal responsibility.


Prisoner Of War, a controversial status

A) Summary

The status, Prisoner of War reveals many issues. This paper examines the meaning of the term Prisoner of War (POW) and discusses the topic with a focus on the US State practice.

In particular the treatment of the prisoners, who have been captured in the context of the Afghanistan War and the fight against terrorism, is taken into account. Under this section also the quandary of an adequate and justifiable classification of the different categories of prisoners is discussed. In this context also the terms "unlawful combatant” and "war on terror” are addressed. In addition the relation between Humanitarian Law, Human Rights and Domestic Law is considered and brought into relation with decisions of the US Courts. Additionally the issue of criminal liability under Domestic and International law is raised.

The paper concludes with a summary of the findings and an appraisal of the results followed by a perspective to future developments.

B) Introduction

A few days after the attacks of September 11th 2001 US President George W Bush adopted the Authorization for Use of Military Force against Terrorists.[1] This resolution entitles the President to undertake all measures needed to fight against nations, organisations and persons involved in the attacks. Since December 2001, the USA is keeping about 600 prisoners captured during the Afghanistan war and the "War on Terror" on the Guantanamo Bay Naval Base (a forty-five (45) square-mile enclave in Cuba which the USA has held since 1903).[2] Additionally, Military Commissions have been entitled by a Presidential Order to try prisoners for violations of the Laws of War.[3] The prisoners are soldiers of the former Taliban-Government and members of the terror organisation Al-Qaeda.[4]

Many disputes have occurred regarding the legal status of these prisoners.[5] One of the main contentions is that the USA denies them the Prisoner of War Status in terms of the Geneva Convention by considering them as "unlawful combatants". This raises objections in terms of Humanitarian Law.[6]

Furthermore the US government denied these prisoners any contact with the outside world, plus the requirements for appeals are designed to be as adverse as possible.[7] Reports from Amnesty International state that the conditions of imprisonment are on the verge of being inhumane.[8]

This paper will focus on the question whether this treatment is justifiable and under which circumstances a prisoner has to be considered as Prisoner of War in terms of the Geneva Conventions and how to proceed in doubtful cases thereby also examining the legitimacy of Military Tribunals and investigating which protections are to be granted if the P.O.W. status is denied.

I. Humanitarian Right

Historically Prisoners of War (POW) have been variously subjected to torture, heavy labour, life time imprisonment, ransom, and executions by members of the occupying forces. This state of affairs was largely tolerated under policies and can be seen as a general state practice until the 18th century. The first improvements of the legal status of Prisoners of War under humanitarian aspects were made by Catherine the II of Russia with respect to the treatment of Turkish prisoners in 1748, the Treaty of Amity and Commerce of 1780 between the United States of America and Prussia accepting mutual human treatment of prisoners, and the foundation of the Red Cross in 1864. However the most important codification of Humanitarian International Law are the Geneva Conventions which deal with the protection of victims of armed conflicts. The basic principle of this codification is the treatment of prisoners with humanity under any circumstances, but history shows that in an armed conflict originally granted rights are often ignored out of fear or "military necessity". The Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 (Third Geneva Convention) regulates the treatment of Prisoners of War and guarantees extensive rights such as a right to humane treatment (Art. 13 I 1), a right to adequate food and clothing (Art. 25ff.) and a right to undertake religious activities (Art. 34ff.). Though only regular combatants of the armed forces involved in an international armed conflict can be considered as Prisoners of War and therefore are in favour of the rights granted by the Third Geneva Convention.[9] The following will examine in detail which prisoners of the Afghanistan Conflict can benefit from the Geneva Conventions, and if the state practice of the USA abides by the rules of International Humanitarian Law.

II. Armed Conflict

As already shown in order to examine the legal status of a prisoner one should determine whether there is an international armed conflict. However no definition of the term "armed conflict" can be found either in the four Geneva Conventions or in one of the additional protocols.

The commentary of the Geneva Conventions reads as follows:

"Any differences arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war."[10]

Following this definition an armed conflict exists since the first Air Strike undertaken by the US Airforce as part of the armed forces of the USA against Afghanistan on 7th of October 2001.[11]

III. Protected groups

Only combatants are protected under the POW status.[12] In general, members of the armed forces, except chaplains and medical personnel, are combatants.[13]

Contrary to non-combatants, it is legal for combatants to act directly in hostilities and therefore POW status has to be granted in case of capture.[14] The POW status protects them from being responsible for acts committed during hostilities.[15] It has to be mentioned that the special protection of POW is also justified by the fact that war captivity does not intend to punish the participants of an armed conflict. The International Military Tribunal in Nuremberg argued already in 1946 by citing Admiral Wilhelm Canaris:

"War captivity is neither revenge nor punishment but solely protective custody, the only purpose of which is to prevent the prisoner of war from further participation in the war."[16]

However such protective custody refers only to lawful combatants with POW status. The following attempts to classify the individuals involved in the Afghanistan Conflict and in the "war on Terror" based on the categories of the Geneva Conventions.

1. The Taliban soldiers

According to the captured soldiers of the former Taliban government the U.S.A states that the Third Geneva Convention is applicable but that POW status will not be granted because they allegedly do not fulfil the requirements of Art 4 A GC II[17] which inter alia states that:

"Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. 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.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war."

As a result of the alleged unfulfilment of these requirements the prisoners are treated as "unlawful-combatants". Although this term can not be found in any codified Humanitarian Law, fighters who do not fulfil the requirements of Art. 4 A Nr. 1 and 2, take part in hostilities as unlawful combatants entitled by literature and jurisdiction.[18] Customary International Humanitarian Law confirms that only the regular members of the armed forces who distinguish themselves from civilians are considered as lawful combatants which possess "belligerent privilege "[19]

The question of the legitimacy of the classification as "unlawful combatant" can be based on the nature of the present conflict. One can divide the hostilities into a conflict between the U.S.A. and the Taliban soldiers on the one hand and a conflict between the U.S.A and Al-Qaeda on the other. This is a valid distinction because the fight against Al-Qaeda is not limited to Afghanistan and its members are recruited from different countries. Moreover Al-Qaeda cannot be considered as a state, though Afghanistan is and therefore the Taliban soldiers could be considered as part of its armed forces.

In order to examine the legitimacy of the classification "unlawful combatants" one has to look at the nature of the Taliban soldiers. Essential to determine P.O.W status one has to determine whether the Taliban soldiers fulfil the criteria of Art 4 A of the Third Geneva Convention.

As mentioned above POW status can be gained by prisoners who are members of the armed forces of a conflicting party stated by Art 4 A Nr. 1 GC III or by fulfilling the requirements of Art. 4 A Nr.2 GC III. The issue is that the US has not answered the question, whether they base the denial of POW status on the alleged unfulfilment of Nr. 1 or Nr. 2 of Art. 4 A GC III.[20]

If the denial is based on Art 4 A Nr. 1 GC III this decision can only be valid if one assumes that the Taliban soldiers were not the armed forces of Afghanistan.

According to this one has to mention that the Taliban were never accepted as a regular government by the U.S.A and several other states, but Art. 4 A 3 of the Third Convention states:

"Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power are entitled to status of prisoner of war."[21]

Therefore only the non acceptance of the former Taliban government which was in effective control of Afghanistan can not justify the denial of POW status.[22] As a result one can state that Art. 4 A Nr. 1 GC III has been fulfilled by the Taliban soldiers because they are members of the Afghanistan armed forces.

However the US could base the denial of POW status on Art 4 A Nr. 2 GC III.

This deals with whether the requirements of Nr. 2 also have to be fulfilled, if a prisoner is already to be considered as members of the armed forces in terms of Nr. 1. It is possible to state that either the requirements of Nr. 1 or those of Nr. 2 need to be fulfilled because the wording of Art 4 does not indicate that the requirements of Nr. 2 also have to be fulfilled by members of the armed forces.[23]

On the other hand one can argue that there is no sense to relieve the regular armed forces from the duties other militias have to fulfil, as to differ themselves from civilians and to obey the Laws of War.[24] Furthermore one could consider the requirements of Art. 4 A Nr. 2 as the essentials of any regular armed forces in terms of Art. 4 A Nr.1.[25] However the controversy of whether both or only one of the items have to be fulfilled can remain undecided if the requirements of the stricter item contained in Art. 4 A Nr. 2 are fulfilled by at least some of the Taliban soldiers.

It can be assumed that the Taliban soldiers are subjected to a command structure,[26] furthermore their black turbans and their uncut beards can be considered as distinctive and recognizable insignia in terms of Art 4 A Nr. 2 b.[27] According to the requirement of carrying arms openly (Art 4 A Nr. 2d) it is doubtful that the standard weapon of the Taliban soldiers (the AK-47) which is not small was regularly hidden or covered.[28]

On the other hand the Taliban are accused of having actively supported the Al-Qaeda organisation and therefore disrespected the laws and customs of war in terms of Art. 4 A Nr. 2 d.[29]

Supporting a terroristic network like Al-Qaeda can not be tolerated; the question is whether this support automatically implies that the actual operations of the Taliban are against the Laws of War.

If one interprets any support, even if unintended, as disrespectful of the laws and customs of war, even an old Lady who accidentally donates money to Al-Qaeda while intending to help a welfare organisation could be accused of transgressing Art. 4 A Nr. 2 d.[30] Therefore a narrow interpretation of Art. 4 A Nr. 2 d should be favoured without assuming that any support of other groups automatically implies that the own operations are not in line with the laws and customs of war.

The distinction is important because prisoners are endangered of not being considered as POW due to selfish reasons of the detaining powers, as seen in the North-Korea and Vietnam conflicts where POW status of all prisoners were denied because their states have been classified as aggressors and thereby did not respect the laws of war[31] Though the requirement of respecting the Laws of War only relates to the operations of specific groups.

This analysis shows that it is a highly possible that at least some Taliban units fulfil even the strict requirements of Art. 4A Nr. 2 GK III. Therefore a general denial of POW status for all members of the Taliban forces without a further differentiation can not be justified whether the USA refers to Nr. 1 or Nr. 2 of Art. 4 A GK III. That a generalised status determination without examination of the individual case is illegitimate is also shown by Art. 5 GK III which states that in cases of doubt a court has to decide about the status and therefore also claims an individual approach.[32] Therefore the third Geneva Convention has to apply to the Taliban soldiers with the possibility of granting POW status which may demand an individual examination in terms of Art. 5 GK III.


[1] (accessed 24.8.2008).

[2] Reisman: Rasul v Bush, A Failure to Apply International Law, IJCJ 2 (2004) p. 976-980, 976.

[3] (24.8.2008).

[4] White House, Presidential Letter of 19th of September 2003:

[5] Statement of Great Britain AI Index AMR 51/114/2003 of 19 August 2003, (accessed on 12 August 2008); Aldrich AJIL, 2002 P. 891ff.; McDonald in HuV-I 2001, P. 266ff.

[6] White House Presidential Letter of 19th September 2003 (accessed on 12 August 2008)

[7] Tomuschat, in: DÖV, p. 357, 363.

[8] Amnesty International, AI-Index: AMR/099/2003, (accessed on 29th of August 2008)

[9] Shared Art 2 and 3 of the four Geneva Conventions.

[10] Pictet, Commentary III, P.23.

[11] Wieczorek, in: HuV-I, 2002, p. 88, 89.

[12] Dörmann, The legal situation of"unlawful/unprivileged combatants”, RICR 2003 Vol. 85 No 849, p. 45.

[13] Dörmann, The legal situation of"unlawful/unprivileged combatants”, RICR 2003 Vol. 85 No 849, p. 45.

[14] Dörmann, The legal situation of"unlawful/unprivileged combatants”, RICR 2003 Vol. 85 No 849, p. 45.

[15] Inter American Commission on Human Rights, Report on Terrorism and Human Rights, OEA, Ser. L/Lawful Combatants V/II, 116 Doc. 5. rev. 1 corr., 22. 10.2002, para. 68.

[16] Meyer, M., (1983). "Liability of prisoners of war for offences committed prior to capture: The Astiz Affair". International and Comparative Law Quarterly, p. 962-963.

[17] Aldrich, G., supra note 5 p. 891.

[18] Baxter, in: BYIL, 1951, S. 323, 330; Aldrich, D., (2002). "Taliban, al Qaeda and determination of illegal combatants." The American Journal of International Law, 96, p. 893, pp. 891-899.

[19] J. M. Henckaerts (Editor), Study on Customary International humanitarian lLaw, Annex: List of Customary Rules of International Humanitarian Law, Rule 1, 3 and 106, pp. 168, 207.

[20] Aldrich, in: AJIL, 2002, p. 891,894.

[21] Art 4 A 3 GC III.

[22] Kurth, in: ZRP, 2002, p. 404, 406; Moore, in: IJHR, 2003, S. 1, 8.

[23] Paust, "There Is No Need to Revise Laws of War in Light of September 11th", p. 2, November 2002, (accessed on 19th of August 2008).

[24] Wedgwood,in: AJIL, 2002, p.328, 335.

[25] Wedgwood,in: AJIL, 2002, p.328, 335.

[26] Rashid p. 126; Nojumi, p. 136,137.

[27] Aldrich, in: AJIL, 2002, p.891,895; Rashid, p. 181.

[28] Rashid, p. 181.

[29] Aldrich, in: AJIL, 2002, p.891,895.

[30] Tomuschat, in: DÖV, p.357, 365.

[31] Aldrich, in: AJIL, 2002, p.891,895,896.

[32] ICRC, 18.07.2003, Guantanamo Bay, the work continues, (accessed on 26th of August 2008)

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Prisoner of War - A controversial status
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