Monday, January 14, 2002

Taliban and Al-Qaeda prisoners do not merit protection as POW's under the Third Geneva Convention on the Treatment of Prisoners of War. I've been looking for the strict US statement on how it viewed the Taliban; it seems that in all statements regarding the Taliban, the US government has jumped through hoops to avoid recognizing them as sovereign, in any rhetorical way. Bush's statements on the war, made on Sept. 20 to the joint session of Congress, and the speech made at the outset of the campaign on October 7, seem to be official US policy on the Taliban and al-Qaeda. While he did refer to them as a regime, that did not imply that they are a government - in fact, he explicitly described them as "controlling" not "ruling". Rhetorically, the US treated the Taliban as a non-sovereign organization in control of territory, not as a state. There were no real substantial differences of kind in the rhetoric discussing the Taliban and that describing Al Qaeda. This is important - it addresses the first problem: that the Taliban are not one of the High Contracting Parties to the Third Geneva Convention on the Treatment of prisoners of war: ARTICLE 2 In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. Since the Taliban or Al Qaeda are not high contracting parties, it was important to describe them as not even being a sovereign - a Party to a conflict or a Power - so that paragraph 3, art. 2 would not apply: Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. Having defined the Taliban and Al Qaeda as not-sovereign, Art 2 vanishes. Having dealt with Article 2, we now move on to Article Four: the definitions of POW, which raise further problems. Art 4, Section A [definition of POW] (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. The Taliban was not a Party to a conflict [see par. 2] and therefore did not have regular forces or militias or volunteers which could be treated under this part. Now, for the part of the definition that attends to informal combatants: (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; One can argue that no coherent chain-of-command established legal martial discipline in the irregular Taliban and Al-Qaeda forces. A collection of the forces of warlords and formless rabble do not an army or a movement make, nor do they comprise a chain of command. In other words, Taliban officers were not agents of the sovereign, and could not have been. (b) that of having a fixed distinctive sign recognizable at a distance; No Taliban or Al-Qaeda combatant carried distinctive insignia. They do not meet the conditions of this standard. (c) that of carrying arms openly; They threw their weapons away when threatened with capture, or disposed of them to avoid being recognized as armed agents of the Taliban or Al Qaeda. They do not meet this condition. (d) that of conducting their operations in accordance with the laws and customs of war This goes completely without saying. They *could* *not* have carried on operations according to the laws of war because the first three restrictions are part of the Rules of Land Warfare and the Hague Conventions. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. The Taliban and Al-Qaeda possessed no *regular* armed forces, under the strict definition (see Hague Convention Annex "REGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND SECTION I ON BELLIGERENTS, Chapter One, Section One, Article One). They do not meet this standard. By definition, then, Taliban and Al-Qaeda irregulars cannot be considered prisoners of war. Under the standard of 3rd Geneva Convention, Part One - Article Five, those prisoners are being held according to the provisions of the Convention, at the pleasure of the USA, until the operations of competent tribunals. Which, according to the UCMJ and the international conventions on war, are perfectly legal - in this specific circumstance. Notwithstanding this point, for resident and non-resident civilian aliens in the United States - such military tribunals can *not* operate legitimately.

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