Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949

Status of Taliban Forces Under Article 4 of the Third

Geneva Convention of 1949

The President has reasonable factual grounds to determine that no members of the Taliban militia are

entitled to prisoner of war status under Article 4 of the 1949 Geneva Convention (III) Relative to the

Treatment of Prisoners of War.

February 7, 2002

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

You have asked for our Office’s views concerning the status of members of the

Taliban militia under Article 4 of the 1949 Geneva Convention (III) Relative to the

Treatment of Prisoners of War (“GPW”). Assuming the accuracy of various facts

provided to us by the Department of Defense (“DoD”), we conclude that the

President has reasonable factual grounds to determine that no members of the

Taliban militia are entitled to prisoner of war (“POW”) status under GPW. First,

we explain that the Taliban militia cannot meet the requirements of Article

4(A)(2), because it fails to satisfy at least three of the four conditions of lawful

combat articulated in Article 1 of the Annex to the 1907 Hague Convention (IV)

Respecting the Laws and Customs of War on Land (“Hague Convention”), which

are expressly incorporated into Article 4(A)(2). Second, we note that neither

Article 4(A)(1) nor Article 4(A)(3) apply to militia, and that the four conditions of

lawful combat contained in the Hague Convention also govern Article 4(A)(1) and

(3) determinations in any case. Finally, we explain why there is no need to

convene a tribunal under Article 5 to determine the status of the Taliban detainees.

I.

Article 4(A) of GPW defines the types of persons who, once they have fallen

under the control of the enemy, are entitled to the legal status of POWs. The first

three categories are the only ones relevant to the Taliban. Under Article 4(A)(1),

individuals who are “members of the armed forces of a Party to the conflict,” are

entitled to POW status upon capture. Article 4(A)(3) includes as POWs members

of “regular armed forces who profess allegiance to a government or an authority

not recognized by the Detaining Power.”

Article 4(A)(2) includes as POWs members of “other militias” and “volunteer

corps,” including “organized resistance movements” that belong to a Party to the

conflict. In addition, members of militias and volunteer corps must “fulfill” four

conditions: (a) “being commanded by a person responsible for his subordinates”;

(b) “having a fixed distinctive sign recognizable at a distance”; (c) “carrying arms

openly”; and (d) “conducting their operations in accordance with the laws and

customs of war.” Those four conditions reflect those required in the 1907 Hague

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Convention IV. See Commentary to the Geneva Convention Relative to the

Treatment of Prisoners of War 49 (Red Cross 1952) (“Red Cross Commentary”)

(“[D]uring the 1949 Diplomatic Conference . . . there was unanimous agreement

that the categories of persons to whom the Convention is applicable must be

defined, in harmony with the Hague Regulations.”).

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,” GPW Article 5 requires that these individuals “enjoy the

protections of” the Convention until a tribunal has determined their status.

Thus, in deciding whether members of the Taliban militia qualify for POW

status, the President must determine whether they fall within any of these three

categories. Under Article II of the Constitution, the President possesses the power

to interpret treaties on behalf of the Nation. Memorandum for John Bellinger, III,

Senior Associate Counsel and Legal Adviser to the National Security Council,

from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty,

Special Counsel, Office of Legal Counsel, Re: Authority of the President to

Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001). This includes, of

course, the power to apply treaties to the facts of a given situation. Thus, the

President may interpret GPW, in light of the known facts concerning the operation

of Taliban forces during the Afghanistan conflict, to find that all of the Taliban

forces do not fall within the legal definition of POW. A presidential determination

of this nature would eliminate any legal “doubt” as to the prisoners’ status, as a

matter of domestic law, and would therefore obviate the need for Article 5

tribunals.

We believe that, based on the facts provided by the Department of Defense, see

Rear Admiral L.E. Jacoby, U.S. Navy, J-2, Information Paper, Subject: Back-

ground Information on Taliban Forces (Feb. 6, 2002), the President has reasona-

ble grounds to conclude that the Taliban, as a whole, is not legally entitled to POW

status under Article 4(A)(1) through (3).

II.

As the Taliban have described themselves as a militia, rather than the armed

forces of Afghanistan, we begin with GPW’s requirements for militia and

volunteer corps under Article 4(A)(2). Based on the facts presented to us by DoD,

we believe that the President has the factual basis on which to conclude that the

Taliban militia, as a group, fails to meet three of the four GPW requirements, and

hence is not legally entitled to POW status.

First, there is no organized command structure whereby members of the Tali-

ban militia report to a military commander who takes responsibility for the actions

of his subordinates. The Taliban lacks a permanent, centralized communications

infrastructure. Periodically, individuals declared themselves to be “commanders”

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Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949

and organized groups of armed men, but these “commanders” were more akin to

feudal lords than military officers. According to DoD, the Taliban militia func-

tioned more as many different armed groups that fought for their own tribal, local,

or personal interests.

Moreover, when the armed groups organized, the core of the organization was

often al Qaeda, a multinational terrorist organization, whose existence was not in

any way accountable to or dependent upon the sovereign state of Afghanistan. We

have previously concluded, as a matter of law, that al Qaeda members are not

covered by GPW. See Memorandum for Alberto R. Gonzales, Counsel to the

President and William J. Haynes II, General Counsel of the Department of

Defense, from Jay S. Bybee, Assistant Attorney General, Re: Applications of

Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002). After

October 7, when the United States armed forces began aerial bombing of al Qaeda

and Taliban targets in Afghanistan, the distinction between Taliban and al Qaeda

became even more blurred as al Qaeda assumed the lead in organizing the defense.

DoD’s facts suggest that to the extent the Taliban militia was organized at all, it

consisted of a loose array of individuals who had shifting loyalties among various

Taliban and al Qaeda figures. According to DoD, the Taliban lacked the kind of

organization characteristic of the military. The fact that at any given time during

the conflict the Taliban were organized into some structured organization does not

answer whether the Taliban leaders were responsible for their subordinates within

the meaning of GPW. Armed men who can be recruited from other units, as DoD

states, through defections and bribery are not subject to a commander who can

discipline his troops and enforce the laws of war.

Second, there is no indication that the Taliban militia wore any distinctive

uniform or other insignia that served as a “fixed distinctive sign recognizable at a

distance.” DoD has advised us that the Taliban wore the same clothes they wore to

perform other daily functions, and hence they would have been indistinguishable

from civilians. Some have alleged that members of the Taliban would wear black

turbans, but apparently this was done by coincidence rather than design. Indeed,

there is no indication that black turbans were systematically worn to serve as an

identifying feature of the armed group.

Some of the Taliban militia carried a tribal flag. DoD has stated that there is no

indication that any individual members of the Taliban wore a distinctive sign or

insignia that would identify them if they were not carrying or otherwise immedi-

ately identified with a tribal flag. Moreover, DoD has not indicated that tribal flags

marked only military, as opposed to civilian, groups.

Third, the Taliban militia carried arms openly. This fact, however, is of little

significance because many people in Afghanistan carry arms openly. Although

Taliban forces did not generally conceal their weapons, they also never attempted

to distinguish themselves from other individuals through the arms they carried or

the manner in which they carried them. Thus, the Taliban carried their arms

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Opinions of the Office of Legal Counsel in Volume 26

openly, as GPW requires military groups to do, but this did not serve to distinguish

the Taliban from the rest of the population. This fact reinforces the idea that the

Taliban could neither be distinguished by their uniforms and insignia nor by the

arms they carried from Afghani civilians.

Finally, there is no indication that the Taliban militia understood, considered

themselves bound by, or indeed were even aware of, the Geneva Conventions or

any other body of law. Indeed, it is fundamental that the Taliban followed their

own version of Islamic law and regularly engaged in practices that flouted

fundamental international legal principles. Taliban militia groups have made little

attempt to distinguish between combatants and non-combatants when engaging in

hostilities. They have killed for racial or religious purposes. Furthermore, DoD

informs us of widespread reports of Taliban massacres of civilians, raping of

women, pillaging of villages, and various other atrocities that plainly violate the

laws of war.

Based on the above facts, apparently well known to all persons living in

Afghanistan and joining the Taliban, we conclude that the President can find that

the Taliban militia is categorically incapable of meeting the Hague conditions

expressly spelled out in Article 4(A)(2) of GPW.

III.

One might argue that the Taliban is not a “militia” under Article 4(A)(2), but

instead constitutes the “armed forces” of Afghanistan. Neither Article 4(A)(1),

which grants POW status to members of the armed forces of a state party, nor

Article 4(A)(3), which grants POW status to the armed forces of an unrecognized

power, defines the term “armed forces.” Unlike the definition of militia in Article

4(A)(2), these two other categories contain no conditions that these groups must

fulfill to achieve POW status. Moreover, because GPW does not expressly

incorporate Article 4(A)(2)’s four conditions into either Article 4(A)(1) or (3),

some might question whether members of regular armed forces need to meet the

Hague conditions in order to qualify for POW status under GPW.

We conclude, however, that the four basic conditions that apply to militias must

also apply, at a minimum, to members of armed forces who would be legally

entitled to POW status. In other words, an individual cannot be a POW, even if a

member of an armed force, unless forces also are: (a) “commanded by a person

responsible for his subordinates”; (b) “hav[e] a fixed distinctive sign recognizable

at a distance”; (c) “carry[] arms openly”; and (d) “conduct[] their operations in

accordance with the laws and customs of war.” Thus, if the President has the

factual basis to determine that Taliban prisoners are not entitled to POW status

under Article 4(A)(2) as members of a militia, he has the grounds to also find that

they are not entitled to POW status as members of an armed force under either

Article 4(A)(1) or Article 4(A)(3).

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Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949

Article 4(A)’s use of the phrase “armed force,” we believe, incorporated by

reference the four conditions for militia, which originally derived from the Hague

Convention IV. There was no need to list the four Hague conditions in Article

4(A)(1) because it was well understood under preexisting international law that all

armed forces were already required to meet those conditions. As would have been

understood by the GPW’s drafters, use of the term “armed forces” incorporated the

four criteria, repeated in the definition of militia, that were first used in the Hague

Convention IV.

The view that the definition of an armed force includes the four criteria outlined

in Hague Convention IV and repeated in GPW is amply supported by commenta-

tors. As explained in a recently-issued Department of the Army pamphlet, the four

Hague conditions are

arguably part and parcel of the definition of a regular armed force. It

is unreasonable to believe that a member of a regular armed force

could conduct military operations in civilian clothing, while a mem-

ber of the militia or resistance groups cannot. Should a member of

the regular armed forces do so, it is likely that he would lose his

claim to immunity and be charged as a spy or as an illegal combat-

ant.

Major Geoffrey S. Corn & Major Michael L. Smidt, “To Be Or Not To Be, That Is

The Question”: Contemporary Military Operations and the Status of Captured

Personnel, Army Law., June 1999, at 1, 14 n.127 (citation omitted). One scholar

has similarly concluded that “[u]nder the Hague Convention, a person is a member

of the armed forces of a state only if he satisfies the [four enumerated] criteria.”

Gregory M. Travalio, Terrorism, International Law, and the Use of Military

Force, 18 Wis. Int’l L.J. 145, 184 n.140 (2000). See also Michael N. Schmitt,

Bellum Americanum: The U.S. View of Twenty-First Century War and Its Possible

Implications For the Law of Armed Conflict, 19 Mich. J. Int’l L. 1051, 1078

(1998) (“[U]nder the Regulations annexed to Hague Convention IV, combatants

were those who were members of the regular armed forces (or formal militia),

were commanded by a person responsible for their conduct, wore a fixed distinc-

tive emblem (or uniform), carried their weapons openly, and conducted operations

in accordance with the law of war. The 1949 Geneva Convention on Prisoners of

War extended this status to members of an organized resistance movement which

otherwise complied with the Hague IV requirements.”).

Further, it would be utterly illogical to read “armed forces” in Article 4(A)(1)

and (3) as somehow relieving members of armed forces from the same POW

requirements imposed on members of a militia. There is no evidence that any of

the GPW’s drafters or ratifiers believed that members of the regular armed forces

ought to be governed by lower standards in their conduct of warfare than those

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applicable to militia and volunteer forces. Otherwise, a sovereign could evade the

Hague requirements altogether simply by designating all combatants as members

of the sovereign’s regular armed forces. A sovereign, for example, could evade the

status of spies as unlawful combatants simply by declaring all spies to be members

of the regular armed forces, regardless of whether they wore uniforms or not.

Further, it would make little sense to construe GPW to deny some members of

militias or volunteer corps POW protection for failure to satisfy the Hague

conditions (under Article 4(A)(2)), while conferring such status upon other

members simply because they have become part of the regular armed forces of a

party (under Article 4(A)(1)).

This interpretation of “armed force” in GPW finds direct support in the Interna-

tional Committee of the Red Cross (“ICRC”), the non-governmental organization

primarily responsible for, and most closely associated with, the drafting and

successful completion of GPW. After the Conventions were established, the

Committee started work on a Commentary on all of the Geneva Conventions. In

its discussion of Article 4(A)(3) of GPW, the ICRC construed both Article 4(A)(1)

and (3) to require all regular armed forces to satisfy the four Hague IV (and Article

4(A)(2)) conditions:

[t]he expression “members of regular armed forces” denotes armed

forces which differ from those referred to in sub-paragraph (1) of

this paragraph in one respect only: the authority to which they pro-

fess allegiance is not recognized by the adversary as a Party to the

conflict. These “regular armed forces” have all the material charac-

teristics and all the attributes of armed forces in the sense of sub-

paragraph (1): they wear uniform, they have an organized hierarchy

and they know and respect the laws and customs of war. The dele-

gates to the 1949 Diplomatic Conference were therefore fully justi-

fied in considering that there was no need to specify for such armed

forces the requirements stated in sub-paragraph (2) (a), (b), (c) and

(d).

Red Cross Commentary at 62-63 (emphasis added).

Numerous scholars have similarly interpreted GPW as applying the four condi-

tions to Article 4(A)(1) and (3) as well as to Article 4(A)(2). As Professor Howard

S. Levie, a leading expert on the laws of war and the Geneva Conventions in

particular, has explained in his authoritative treatise:

This enumeration [of the four conditions] does not appear in subpar-

agraph 1, dealing with the regular armed forces. This does not mean

that mere membership in the regular armed forces will automatically

entitle an individual who is captured to prisoner-of-war status if his

activities prior to and at the time of capture have not met these

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Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949

requirements. The member of the regular armed forces wearing civil-

ian clothes who is captured while in enemy territory engaged in an

espionage or sabotage mission is entitled to no different treatment

than that which would be received by a civilian captured under the

same circumstances. Any other interpretation would be unrealistic as

it would mean that the dangers inherent in serving as a spy or sabo-

teur could be immunized merely by making the individual a member

of the armed forces; and that members of the armed forces could act

in a manner prohibited by other areas of the law of armed conflict

and escape the penalties therefore, still being entitled to prisoner-of-

war status.

Howard S. Levie, 59 International Law Studies: Prisoners of War in International

Armed Conflict 36-37 (Naval War College 1977). Oxford Professor Ingrid Detter

has similarly concluded that, under the 1949 Geneva Conventions,

to be a combatant, a person would have to be:

(a) commanded by a person responsible for his subordinates;

(b) having a fixed distinctive sign recognizable at a distance;

(c) carrying arms openly;

(d) conducting their operations in accordance with the laws and

customs of war.

The same requirements as apply to irregular forces are presuma-

bly also valid for members of regular units. However, this is not

clearly spelt out: there is no textual support for the idea that members

of regular armed forces should wear uniform. On the other hand,

there is ample evidence that this is a rule of law which has been

applied to a number of situations to ascertain the status of a person.

Any regular soldier who commits acts pertaining to belligerence in

civilian clothes loses his privileges and is no longer a lawful combat-

ant. “Unlawful” combatants may thus be either members of the regu-

lar forces or members of resistance or guerilla movements who do

not fulfil the conditions of lawful combatants.

Ingrid Detter, The Law of War 136-37 (Cambridge 2d ed. 2000) (footnotes omit-

ted). See also Christopher C. Burris, The Prisoner of War Status of PLO Fedayeen,

22 N.C. J. Int’l L. & Com. Reg. 943, 987 n.308 (1997) (“I am using Article

4A(2)’s four criteria because the armed forces of the Palestinian Authority, over

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30,000 men under arms organized into roughly ten or more separate para-military

units, are more characteristic of militia units than the regular armed forces of a

state. This is because these units are organized as police/security units, not

exclusive combat units. See Graham Usher, Palestinian Authority, Israeli Rule,

The Nation, Feb. 5, 1996, at 15, 16. Whether the Palestinian Authority’s forces are

considered militia or members of the armed forces, they still must fulfill Article

4A(2)’s four criteria.”). 1

Therefore, it is clear that the term “armed force” includes the four

conditions first identified by Hague Convention IV and expressly

applied by GPW to militia groups. In other words, in order to be

entitled to POW status, a member of an armed force must (a) be

“commanded by a person responsible for his subordinates”; (b)

“hav[e] a fixed distinctive sign recognizable at a distance”; (c) “car-

ry[] arms openly”; and (d) “conduct[] their operations in accordance

with the laws and customs of war.” We believe that the President,

based on the facts supplied by DoD, has ample grounds upon which

to find that members of the Taliban have failed to meet three of these

four criteria, regardless of whether they are characterized as mem-

bers of a “militia” or of an “armed force.” The President, therefore,

1

The only federal court we are aware of that has addressed this issue denied Article 4(A)(3) status

to defendants because they could not satisfy the Hague conditions. In United States v. Buck, 690

F. Supp. 1291 (S.D.N.Y. 1988), the defendants claimed that they were entitled to POW status as

military officers of the Republic of New Afrika, “a sovereign nation engaged in a war of liberation

against the colonial forces of the United States government.” Id. at 1293. That nation, it was contended,

included “all people of African ancestry living in the United States.” Id. at 1296. The court refused to

extend POW status to the defendants. After determining that GPW did not apply at all due to the

absence of an armed conflict as understood under Article 2, the court alternatively reasoned that the

defendants could not satisfy any of the requirements of Article 4. See id. at 1298 (stating that, even if

GPW applied, “it is entirely clear that these defendants would not fall within Article 4, upon which they

initially relied”). The court first concluded that the defendants failed to meet the four Hague conditions

expressly spelled out in Article 4(A)(2). The court then rejected POW status under Article 4(A)(3)

“[f]or comparable reasons”:

Article 4(A)(2) requires that to qualify as prisoners of war, members of “organized

resistance movements” must fulfill the conditions of command by a person responsible for

his subordinates; having a fixed distinctive sign recognizable at a distance; carrying arms

openly; and conducting their operations in accordance with the laws and customs of war.

The defendants at bar and their associates cannot pretend to have fulfilled those conditions.

For comparable reasons, Article 4(3)’s reference to members of “regular armed forces who

profess allegiance to a government or an authority not recognized by the Detaining Power,”

also relied upon by defendants, does not apply to the circumstances of this case.

Id. (emphasis added). The court reached this conclusion even though the Hague conditions are not

explicitly spelled out in Article 4(A)(3). Nothing in the court’s discussion suggests that it would have

construed Article 4(A)(1) any differently.

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Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949

may determine that the Taliban, as a group, are not entitled to POW

status under GPW.

IV.

Under Article 5 of GPW, “[s]hould any doubt arise as to whether persons . . .

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.” As we understand it, DoD in the past has

presumed prisoners to be entitled to POW status until a tribunal determines

otherwise. The presumption and tribunal requirement are triggered, however, only

if there is “any doubt” as to a prisoner’s Article 4 status.

Under Article II of the Constitution, the President possesses the power to inter-

pret treaties on behalf of the Nation. * We conclude, in light of the facts submitted

to us by the Department of Defense and as discussed in parts II and III of this

memorandum, that the President could reasonably interpret GPW in such a manner

that none of the Taliban forces falls within the legal definition of POWs as defined

by Article 4. A presidential determination of this nature would eliminate any legal

“doubt” as to the prisoners’ status, as a matter of domestic law, and would

therefore obviate the need for Article 5 tribunals.

This approach is also consistent with the terms of Article 5. As the International

Committee of the Red Cross has explained, the “competent tribunal” requirement

of Article 5 applies “to cases of doubt 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.” Red Cross Commentary at 77. Tribunals are

thus designed to determine whether a particular set of facts falls within one of the

Article 4 categories; they are not intended to be used to resolve the proper

interpretation of those categories. The President, in other words, may use his

constitutional power to interpret treaties and apply them to the facts, to make the

determination that the Taliban are unlawful combatants. This would remove any

“doubt” concerning whether members of the Taliban are entitled to POW status.

We therefore conclude that there is no need to establish tribunals to determine

POW status under Article 5.

JAY S. BYBEE

Assistant Attorney General

Office of Legal Counsel

*

Editor’s Note: We have deleted a footnote containing a citation to an earlier Office of Legal

Counsel memorandum that was unnecessary to support the proposition in the text, because the cited

memorandum no longer reflects the views of this Office.

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