If They Aren’t POW’s, Then What in the Hell are They?

Worries About Our Treatment of Taliban Fighters and the Rule of Law

By Noah

13 / 1 / 02 original posting.  Updated 6 / 2 / 02.

A very interesting document exists on this web site.  It is the official U.S. Military Field Manual describing the rules and regulations regarding the conduct of military operations.  Known by most of us as the “Laws of War”, it incorporates the Geneva and Hague conventions, as well as the UCMJ (Uniform Code of Military Justice).  It is fascinating reading, especially due to all the attention focused on the Taliban fighters currently being transported to Guantanamo Bay.  This missive is rather long, because I’ve taken the liberty to actually quote the Geneva Convention at length.  However, this is not an exhaustive listing of all the rights someone may possess or not possess under the convention.  The Geneva Convention is a long, repetitive, complex, and boring document.  I’ve quoted the earliest (as in closest to the beginning of the document) or clearest reference available.  If you have any doubts about my conclusions, please pull up the Laws of Land Warfare, and go through it yourself.  By the end of this however, you will know more about the Convention than anyone will ever offer you in a more “traditional” forum.

After receiving much feedback from friends and other confidants, I’ve decided that I need to be clearer about the purpose of this essay.  It is not meant to be in the defense of the Taliban, but rather in the defense of an idea that is being assailed left and right nowadays.  The rule of law is an important concept in human affairs.  It is what keeps us separate from the Taliban, and on a morally defensible footing.  I am concerned with the classification of the Taliban fighters “detained” by the U.S. Military.  Denying anyone their rights when it is inconvenient sets a very bad precedent for us all.  Don’t get the wrong idea.  I am only arguing for anyone’s rights under the Geneva Convention, the Taliban are not American citizens, and therefore have no rights under the Constitution at all.  The Constitution is for citizens; non-citizens have no protection there.  But they do have protection under conventions we have signed or ratified.  Now, when there exists the greatest temptation to ignore inconvenient codes of conduct, is the time we must hold slavishly to them.  Not for the good of those prostrate before us, but to protect the purity of the soul of our great nation.

Additionally, please note that this essay focuses on the Taliban, a political entity formerly governing the vast majority of Afghanistan.  It does not in any way address the issue of members of Al-Qaeda, a terrorist organization dedicated to political and social objectives over a range of issues affecting many countries across the globe.  I consider those people to be responsible for terrorism, and as such they are held under the authority of Article 4, GC par.248. 

The controversy whirls about a legal definition – “What constitutes a P.O.W.?”  The U.S. Military will only say that the fighters are being treated as “Illegal Combatants”, and as such, have very few rights compared to EPW’s (Enemy Prisoners of War, more specific than POW).  Their restricted legal status allows the U.S. to hold them indefinitely, in any location the U.S. desires.  This is exactly what the U.S. wants, as they believe that useful intelligence information will come out of many of the current EPW’s, especially after they sit outside through a Cuban summer on an island on the other side of the world.  I agree, it is very useful, and most likely will work.  So why am I having such a problem?  If they are classified as an EPW, we cannot use even “gentle persuasion” measures on them.  To wit:

93. Questioning of Prisoners

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

Note that torture is not the only thing that is banned, even unpleasant or insulting treatment is as well.  And that is exactly what we are going to do to them on Guantanamo.  Left outside, under a tin roof, sleeping under klieg lights, in isolation.  Fast-forward eight months.  It’s August, in Cuba.  Sounds unpleasant, insulting, disadvantageous, and very effective to me.

There is one problem with all of this.  Its really been bothering me, as an individual who believes in the rule of law.  I happen to believe that the benefits of the rule of law are better illustrated by their effect at restraining overwhelming government power, rather than restricting individual liberties.  And therein lies the rub: those Taliban are EPW, and no amount of hemming and hawing on the part of the President, Secretary of Defense, or the military establishment will change that.  Big deal, you might ask.  What would be the harm in declaring these people EPW, or not as the case may be?  You have no doubt heard that declaring someone EPW provides them special rights, and being an “Illegal Combatant” denies them these same rights.  What right(s) could possibly be such significant problem we will go out of our way to deny it to those we have captured?  The first is simple, to quote from FM 27-10 (“The Law of Land Warfare”):

198. Release and Repatriation at Close of Hostilities

Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

In the absence of stipulations to the above effect in any agreement concluded between the Parties to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in the foregoing paragraph.

Makes much more sense doesn’t it?  Since the war is over in any meaningful sense, you have to let the prisoners go.  Flies in the face of what we are trying to accomplish.  You might posit that the Taliban were engaged in trying to kill U.S. soldiers, and thus are guilty of murder or attempted murder.  But remember, the conventions regarding war make it perfectly acceptable to kill your opponent.  That is not a violation of the rules of war, for any side in the conflict.  You might also state the fact that it wasn’t a “declared” war.  No matter, the conventions regulate “armed conflict”, no matter what label is placed on that conflict.

Or you may take the side of the U.S. Military.  They state that the Taliban prisoners are not EPW, case closed.  What makes a combatant an EPW or a non-EPW?  You can read for yourself all the individual cases covered, but for our purposes we are going to take the 4 of the types specified.  We’ll take them one by one.

61. Prisoners of War Defined

A. 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.

This seems to cover the Taliban’s armed forces.  It reads very straight forward and unambiguously to me.  It even covers warlords that are temporally allied to the Taliban.  But perhaps you’re still not convinced.  Ok, then:

(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, fulfill 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.

If you deny that the Taliban constituted an “army”, the convention describes militias and volunteers as well.  To start with, (a) seems to apply; the U.S. Military keeps talking of capturing “commanders” every few days.  (b) certainly applies; the Taliban did have a flag, and everyone on the battlefield knew they were Taliban.  This is important because the requirement for identification is to keep guerillas in check.  They never acted like anything other than a professional army, poorly trained perhaps, but trained nonetheless.  (c) is true of almost everyone in Afghanistan anyway.  Finally (d) applies; the Taliban certainly fielded formations on the battlefield that were organized as companies and battalions.  In fact, it is one of the stark differences between them and former warlords who controlled small areas.  The Taliban had well defined front lines, a chain of command, a logistical net, and were drilled on both offensive and retrograde maneuvers.  They never could of withdrawn from Kandahar, Mazar-e-Sharif, or Kabul as they did without extensive training.  Look here for details.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

It doesn’t even matter if we have never afforded the Taliban diplomatic recognition.  Soldiers are soldiers whether you like their government or not.  Seems like we have to grant them EPW status.  Finally:

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading force, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Now we have a dilemma.  Either you claim the Taliban are members of a militia or the Taliban military, and grant them EPW status, or you don’t.  But if you don’t, number 6 above removes the necessity for them to wear uniforms, or have a military style organization.  They were resisting upon our approach, they did carry arms openly, and acted in accordance with the laws and customs of war.

Possibly our answer does not lie with an affirmative.  Perhaps it lies in the negative.


Certainly this will get us off the hook.  Contained in these definitions, must be the reasons the U.S. government calls them “Illegal Combatants”.

73. Persons Committing Hostile Acts Not Entitled To Be Treated as Prisoners of War

If a person is determined by a competent tribunal, acting in conformity with Article 5, GPW (par. 71), not to fall within any of the categories listed in Article 4, GPW (par. 61), he is not entitled to be treated as a prisoner of war. He is, however, a "protected person" within the meaning of Article 4, GC (par. 247). (See pars. 247 and 248, concerning the status of such "protected persons" who have engaged in conduct hostile to the opposing belligerent.)

Yikes!  What does this mean?  To save you the trouble, I’ll run through the references for you.  Stay with me, you’ll have to keep referring back to this paragraph to follow.  Keep the faith.  Article 5, GPW par.71 states:

71. Interim Protection

a. Treaty Provision.

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. (GPW, art. 5.)

b. Interpretation. The foregoing provision applies to any person not appearing to be entitled to prisoner-of-war status who has committed a belligerent act or has engaged in hostile activities in aid of the armed forces and who asserts that he is entitled to treatment as a prisoner of war or concerning whom any other doubt of a like nature exists.

c. Competent Tribunal. A "competent tribunal" of the United States for the purpose of determining whether a person of the nature described in a above is or is not entitled to prisoner-of-war status is a board of not less than three officers acting according to such procedure as may be prescribed for tribunals of this nature.

d. Further Proceedings. Persons who have been determined by a competent tribunal not to be entitled to prisoner-of-war status may not be executed, imprisoned, or otherwise penalized without further judicial proceedings to determine what acts they have committed and what penalty should be imposed therefore.

Well, this says it all.  If there is a conflict, they are EPW until a hearing for each and every one is held to determine their status.  And if they are found to be “Illegal Combatants”, we have to hold a military tribunal for them.  Wow, I guess this whole military tribunal thing that has so many people up in arms, actually is the legally correct procedure.  Who would of imagined?  But we have more to peruse.

Article 4, GPW par.61 is the paragraph we went through before that discusses if you are an EPW or not.  Let’s give the military the benefit of the doubt and assume that the military has held a tribunal for each and every one and determined that they are not EPW.  The paragraph states they are “protected persons” NOT “Illegal Combatants”.

So, what does that mean?  Article 4, GC par.247-248, are rather long, with long portions dealing with medical treatment, people who are shipwrecked, and other such provisions.  I’ll cut out those portions and just give you the meat.  Article 4, GC par.247-248 state:

247. Definition of Protected Persons

a. Treaty Provision.

Nationals of a State which is not bound by the Convention are not protected by it.

Well, as far as I can tell, Afghanistan DID ratify the treaty, on 26 / 9 / 56.  I haven’t been able to locate any information that states the Taliban repudiated the convention.  Additionally repudiation is a lengthy legal procedure that any new government must undertake.  A government doesn’t need to re-ratify in order to still be a party to the convention.  So this doesn’t apply.

b. Interpretation. Subject to qualifications set forth in paragraph 248, those protected by GC also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war.

So, the Taliban are protected by the Geneva Convention.  I wonder if they know it.

248. Derogations

a. Domestic and Occupied Territory.

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case such persons shall nevertheless be treated with humanity, and in ease of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be. (GC, art. 5.) (See also par. 73.)

b. Other Area. Where, in territories other than those mentioned in a above, a Party to the conflict is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person is similarly not entitled to claim such rights and privileges under GC as would, if exercised in favor of such individual person, be prejudicial to the security of such State.

c. Acts Punishable. The foregoing provisions impliedly recognize the power of a Party to the conflict to impose the death penalty and lesser punishments on spies, saboteurs, and other persons not entitled to be treated as prisoners of war, except to the extent that that power has been limited or taken away by Article 68, GC (par. 438).

Well, this certainly changes matters.  If we assume they are protected persons, we can also safely assume that the individual Taliban members are “suspected of or engaged in activities hostile to the security of the State”.  Since this is so they can be imprisoned or executed by a military tribunal.  According to Article 68, GC par.438:

438. Penalties

a. Treaty Provision.

The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance.

b. Reservation as to Death Penalty. The United States has reserved the right to impose the death penalty in accordance with the provisions of Article 68, 2d paragraph, without regard to whether the offenses referred to therein are punishable by death under the law of the occupied territory at the time the occupation begins.

We never expected allegiance from the Taliban, so that’s not an issue here.  But paragraph (b) is interesting.  The U.S. reserves the right to hold you accountable unto death for actions that were not such a serious crime, or indeed a crime at all, in your country.  On further reflection, this does make sense – we don’t like people murdering Jews or crashing 767’s into buildings.  Neither of these acts were against the law under the Taliban either.  So we can legally execute them if we can make a case.

440. Offenses Committed Before Occupation

Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war.

Just when we thought we were home free.  I guess Ex Post Facto seems reasonable to a lot of people.

So where have we gotten?  The case is rather muddled –

·       By a reading of the definition of an EPW, it seems Taliban soldiers are indeed EPW.

·       The U.S. government should provide trials to each Taliban soldier to find them not to be EPW, if possible.

·       If not, then the U.S. must find that the Taliban are not technically soldiers, militia, volunteer corps, or inhabitants that have spontaneously taken up arms.

·       Thus the Taliban soldiers are therefore “Protected Persons” under the Geneva Convention.

·       This allows the U.S. to hold them for a period of time, and subject them to unpleasant, insulting, disadvantageous, and very effective questioning.

·       The Taliban soldiers can reasonably be suspected of or engaged in activities hostile to the security of the State, derogating their status, and can thus be legally held incommunicado.

·       The U.S. Military must subject each Taliban soldier to a military tribunal.  The tribunal serves to sentence each individual Taliban soldier to punishment for specific infractions of the Law of Land Warfare during, and not before the conflict.

·       However, according to the Geneva Convention, the individual Taliban soldiers are not in violation of the Law of Land Warfare, if all they tried to do was kill American soldiers.  We cannot hold them all individually, personally responsible for the events on 11 / 9 / 01.

It all comes down to whether or not you believe in the classification given the soldiers by the U.S. Military.  It is a very arbitrary and capricious procedure, despite the façade of legality provided by the convention.  Donald Rumsfeld has now admitted that the U.S. military has not, and does not intend to provide all the captured Taliban individual trials to determine their status. This sets a very dangerous precedent. 

Don’t think for a moment that other countries don’t notice what we are doing.  Our allies will wink (as Britain), our enemies will see a confirmation of their fears, and neutrals will become afraid.  This is not the way to handle this situation.  When we ignore our own commitments, it encourages others, as well as ourselves, to do the same in the future.

The U.S. must immediately:

·       Declare the Taliban soldiers to be EPW’s.

·       Charge and try in a military tribunal each individual Taliban soldier and hold them accountable for war crimes if we wish.

·      If the soldier cannot be charged or found guilty of a war crime, he must be repatriated to the current Afghani government.  As there are no current hostilities between the U.S. and the Taliban, this is the only legal course of action.

The U.S. must come to terms with this.  In is not in our interests to have and hold anyone who displeases us.  If we wish to hold Al-Queda fighters as members of a criminal conspiracy, and due to their complicity, execute them due to 11 / 9, so be it.  But Taliban fighters, who were only protecting their homeland (as backward and brutal as it was), are only soldiers, and not terrorists in the conventional sense.  Holding them after hostilities are over is wrong.  It is as wrong as Iran holding our embassy members for 444 days.  It is as wrong as the Soviet Union holding Whermacht members for years after the war was over.  These rules exist for a reason.  While not everyone may play by the rules, at least we should.  This supports our position to be the guiding light in the world, the force of reason and liberty and the rule of law.  Nothing else will make it right.

As a footnote, I must comment on the current conditions in Guantanamo Bay.  I do not consider myself a bleeding heart.  As I look on the conditions that they are being held, with their hands and feet bound, with their eyes blocked, and masks on their faces, I am not disturbed.  Indeed, I feel their conditions are respectable.  The current conditions they are being held in are better than their compatriots in refugee camps.  Anyone moved around while in custody is subject to the same or similar restraints.  To quote Rumsfeld “To do anything else would be stupid.”  I agree.  They are dangerous individuals and must be treated as such.  But harsh treatment is not the same as inhumane treatment.  Do think otherwise would do a disservice to all those who hold liberty and our defense of it dear.  Evil must be looked in the face and dealt with harshly.  Evil I, for one, wish we never had faced.  But now that it is upon us, we must hold ourselves upright and look it in the eye.  It is neither pretty nor pleasant, but must be dealt with.  If we deal with it properly, with wisdom, foresight, and justice, may it never assail our shores again.