Status of Detainees in International Armed Conflict, and their Protection in the Course of Criminal Proceedings
By John Cerone
In light of the recent detentions of members of the Taleban and Al-Qaeda, questions have been raised as to what protections they are afforded under international law. At the same time, attempting to apply existing international law to the novel circumstances presented by their cases yields substantial controversy and reveals possible gaps in the law.
Analysis of those circumstances requires resolution of questions for which international law does not provide definitive answers or about which there is no general agreement. Simply to determine the applicable law, it is necessary to consider: which law applies to an armed conflict between a state and a non-state armed group based within another state or states; the extent to which Protocol I to the Geneva Conventions of 1949 (Protocol I) represents customary law; whether human rights law continues to apply in full alongside humanitarian law; and whether the law of international armed conflict applies between a state and a de facto government that has not attracted international recognition, while the supposed de jure government has retained its seat at the United Nations. If it is determined that the law of international armed conflict applies, one must then attempt to resolve a variety of issues arising from the application of that law, such as whether diversity of nationality is required for a combatant to be entitled to Prisoner of War (POW) status; whether individuals detained in the US by the Immigration and Naturalization Service could be deemed internees under the relevant provisions of humanitarian law; whether US forces are occupying any part of Afghanistan for the purposes of the Fourth Geneva Convention; and whether Taleban fighters may be deemed "armed forces of a Party to the conflict" under the Third Geneva Convention.
The purpose of this ASIL Insight is to provide the basic legal framework surrounding some of the controversial issues arising in the determination of the applicable law, the status of detainees, the relevant legal rights afforded under the applicable law, and the operation of the proposed military commission(s).
I. Applicable Law
Whether or not international humanitarian law, or the law of armed conflict, applied as from September 11, it clearly began to apply once the US started bombing Afghanistan. Further, the conflict between the United States and the Taleban, as de facto government of Afghanistan, is international in nature. It is arguable that the law of international armed conflict should also govern relations between the Unites States and Al-Qaeda.  Thus, the remainder of this analysis proceeds on the assumption that the law of international armed conflict applied as between the United States and the Taleban and Al Qaeda from October 7, 2001, if not before.
The primary sources of law relevant for this analysis are the Geneva Conventions of 1949.  The Conventions provide standards for the treatment of persons not, or no longer, taking active part in hostilities during a state of armed conflict or occupation. The trial rights of detainees in the present conflict are provided in the Third and Fourth Geneva Conventions, dealing respectively with POWs and civilians.
II. Status of detainees
The Geneva Conventions provide different regimes of protection depending upon the status of a particular individual under the Conventions. Special rights in judicial proceedings are expressly provided for those having the status of POW under the Third Convention and, in certain circumstances, for "protected persons" under the Fourth Convention.
Article 4 of the Third Convention sets forth the requirements for POW status.  In order to qualify, captured individuals must fall into one of the enumerated categories, the first two of which are particularly relevant here. The first category is members of the armed forces of a party to the conflict.  While this may cover Taleban fighters, it would probably not include members of Al Qaeda. The second category includes members of other militias or volunteer corps "belonging to a party to the conflict" so long as they fulfill certain additional conditions, including having a distinct sign, carrying arms openly, and complying with the law of war. Given the types of activities for which Al Qaeda has been alleged to be responsible, it is unlikely that it fulfills these conditions. However, Article 5 of the Third Convention provides that in the event of "any doubt" as to whether an individual is entitled to POW status, that individual shall be treated as a POW "until such time as their status has been determined by a competent tribunal."
Article 4 is silent on the issue of nationality.  While certain provisions of the Third Convention seem to imply that a POW will necessarily have a different nationality than that of his or her captors, there is no express requirement of a diversity of citizenship. In addition, there is precedent in US case-law for holding that US nationals fighting with the enemy are not deprived of POW status by virtue of their US citizenship.  There is however a line of cases from other jurisdictions holding that nationals fighting for the enemy are not entitled to POW status.  A third possibility would be that such individuals could be tried for treason, but otherwise retain the protections of the Third Convention. 
The rights of POWs may not be renounced, and the protection of the Third Convention continues to apply to them until final release or repatriation.
"Protected Persons" Under the Fourth Convention
While the Fourth Geneva Convention provides a minimum of protection to all individuals throughout the territories of all parties to the conflict, the bulk of its protections are applicable only to "protected persons" as defined in Article 4 of that Convention. Article 4 defines protected persons as "those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."
Paragraph 2 of Article 4 excludes from this definition nationals of a co-belligerent state, as well as nationals of neutral states in the home territory of a party to the conflict, so long as such states have normal diplomatic representation in the state in whose hands they are. This exclusion does not apply to nationals of neutral states who find themselves in occupied territory. Such individuals qualify as protected persons irrespective of the status of diplomatic relations between their state of nationality and the state in whose hands they are.
Generally, individuals not qualifying for POW status under the Third Convention will qualify as "protected persons" so long as they meet the nationality requirement. Thus, those persons taking part in hostilities who do not qualify as lawful combatants will qualify for the protection of the Fourth Convention if they fall within Article 4.
Further, notwithstanding the diversity of nationality requirement, the International Criminal Tribunal for the former Yugoslavia has developed a doctrine whereby individuals who do not technically meet the nationality requirement of Article 4 may still qualify as protected persons in situations where they may be assimilated to an enemy state. As opposed to relying on formal national characterizations, this interpretation of nationality turns on the "substantial relations" between an individual and an enemy state, taking into consideration such factors as ethnicity, allegiance, and other bonds with the enemy state.  This doctrine is particularly important in light of the number of foreigners alleged to be fighting with the Taleban or Al Qaeda. If such individuals are determined to be ineligible for POW status or do not meet the nationality test for protected persons,  there would be an argument for assimilating them to enemy nationality for the purpose of protection under the Fourth Convention.
Finally, the rights afforded to protected persons will vary depending upon their circumstances. While some rights are afforded generally to protected persons in the home territory of a party to the conflict, a more extensive catalog of rights is provided to such individuals if they have been interned. 
Extensive protection is also afforded to protected persons in occupied territory. In this regard, it is important to note the low threshold for application of the provisions of the Fourth Convention concerning occupied territory. The ICRC Commentary appears to take the position that these provisions apply to the extent a party to the conflict exercises control over protected persons in the territory of the other party.  According to this interpretation, any protected persons taken into custody by US forces in Afghanistan would be covered by these provisions, and this analysis proceeds on that assumption.
Individuals ineligible for POW status who also fail to qualify as protected persons benefit from the protection of Article 75 of Protocol I to the extent that it may be regarded as customary law.  Article 75 is intended to be a residual provision applying to all persons who do not receive greater protection under other provisions of international law.
III. Trial Rights Afforded
Crimes under domestic as well as international law  were clearly committed on September 11. Criminal proceedings based upon those attacks have already commenced. In the event a detainee is prosecuted, the accused is afforded trial rights under both human rights  and humanitarian law.
Human Rights Law
For the United States, the relevant provisions of human rights law would include, inter alia, Article 14 of the International Covenant on Civil and Political Rights. That article provides comprehensive protection, guaranteeing such rights as: equality before courts and tribunals; the right to a fair hearing by an independent and impartial tribunal established by law; the presumption of innocence; the right to counsel of the accused's choice; the right to appeal to a higher tribunal; the right to call and examine witnesses; the free assistance of an interpreter; and freedom from compelled self-incrimination.
As human rights law is subject to derogation, it is imperative to consider also the rights provided under humanitarian law, which is not generally  subject to derogation.
Trial rights afforded under humanitarian law depend upon the status of the accused and the nature of the crime for which he or she is being tried.
POWs benefit from the customary law of combatant immunity. As combatants have been authorized to use force, they may not be prosecuted for common crimes committed in the context of hostilities. Thus, they may be prosecuted only for violations of the law of armed conflict or for crimes that are unrelated to the hostilities.
In any prosecution, they are guaranteed the protections outlined in Articles 82 to 108 of the Third Convention. These provisions require, inter alia, that POWs be tried by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power; that they only be sentenced to the same penalties that would apply to members of the Detaining Power's armed forces for the same acts; that capital punishment not be carried out prior to the expiry of a waiting period of at least six months; and that accused persons be granted the same right of appeal as that open to members of the armed forces of the Detaining Power. Article 105 provides for the rights of defense including: the right to counsel of the accused's choice, the right to confer privately with counsel, the right to call witnesses, and the right to an interpreter.
b. "Protected Persons" Under the Fourth Convention
In the course of judicial proceedings, protected persons who have been interned or are in occupied territory are entitled to the protection of Articles 71 to 76 of the Fourth Convention. These rights include: the right to a regular trial; the right to counsel of the accused's choice, who must be able to visit the accused freely and be provided with the necessary facilities for preparing the defense; the right to call witnesses; the right to an interpreter and to request replacement of an interpreter; the right of appeal "provided for by the laws applied by the court"; the right to be visited by the delegates of the Protecting Power  and the ICRC; and the right to be detained and serve sentences in the occupied territory.
Under the Fourth Geneva Convention, Article 70, protected persons in occupied territory may not be prosecuted for acts committed prior to occupation, with the exception of war crimes. Protected persons in the home territory of a party to the conflict who are not interned are not provided any specific judicial guarantees.
All those who do not benefit from greater protection under the Third or Fourth Conventions are entitled to the protection of Article 75 of Protocol I to the extent its provisions embody customary law. The trial rights contained therein apply to any penal proceedings arising out of offenses related to the armed conflict. Article 75(4) requires that proceedings be conducted before an "impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure." Those principles are deemed to include a range of procedural rights, such as provision of "all necessary rights and means of defence"; the right to be presumed innocent; freedom from compelled self-incrimination; and the right to be advised of remedies. Article 75(4) also prohibits ex post facto application of criminal law and requires respect for the principle of non bis in idem.
The inclusion of the presumption of innocence in Article 75 is particularly significant, as it is absent from the Third and Fourth Conventions. While POWs and protected persons receive greater protection generally under the Third and Fourth Conventions, they are not precluded from availing themselves of this or any other additional protection provided by Article 75. 
d. Anyone prosecuted for violations of the Geneva Conventions
Any person prosecuted for violations of the Geneva Conventions,  irrespective of his or her status under humanitarian law, must be provided with "safeguards of proper trial and defence, which shall not be less favorable than" those outlined in Articles 105 and following of the Third Convention.  These include the same rights of defense and appeal as those afforded to POWs.  The relevance here of whether the law of international armed conflict applied as of September 11 is clear. Any individuals prosecuted for violations of the Geneva Conventions arising from the September 11 attacks must be provided these rights.
IV. Implications for the Operation of the Proposed Military Commissions
Notwithstanding the fact that the proposed military commissions will be specifically authorized to prosecute violations of the laws of war, very few of the procedural safeguards guaranteed under humanitarian law are expressly provided for in the Military Order authorizing their establishment. While further elaboration of the rights of the accused may be expected in the rules of procedure to be issued by the Secretary of Defense, certain provisions of the Military Order may already be problematic if they are construed to limit the capacity of the Secretary to enact rules conforming to the requirements of human rights and humanitarian law.
The failure to guarantee the rights enumerated above may itself constitute a war crime. Indeed, if this failure amounts to willfully depriving a POW or a protected person of the rights of a fair and regular trial "prescribed in the present Convention," the person(s) responsible for such failure will have committed a grave breach of the Geneva Conventions. 
 It is not clear under international law whether the law of international or non-international armed conflict should govern hostilities between a state and a non-state group residing abroad. It is arguable that by waging battle on another state's territory and simultaneously targeting, if not conflating, Al-Qaeda and the Taleban, the US should be bound by the law of international armed conflict in relation to both groups.
 The United States is not a party to either of the Additional Protocols to the Geneva Conventions. Relevant portions of Protocol I will, however, be mentioned to the extent that they may be deemed to represent customary law.
 While Article 44 of Protocol I broadens entitlement to POW status, that provision has been specifically rejected by the US and most likely does not represent customary law.
 The lack of recognition of the Taleban by the US would not appear to deprive Taleban fighters of POW status. Article 4(A)(3) includes "Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power."
 Contrast Article 4 of the Fourth Convention which expressly requires a diversity of nationality in order for civilians to qualify as "protected persons" under that Convention.
 In re Territo, 156 F.2d 142 (1946) (US citizen who was member of Italian armed forces captured during WWII retained POW status).
 See, e.g., P v. Oie Hee Koi, 1 All ER 419 (1968).
 Support for this position may perhaps be inferred from ICRC Commentary to art. 70 of the Fourth Convention, p.351. In this regard, it should be noted that even those convicted of war crimes retain their status as POWs. See Third Geneva Convention, art. 85.
 See, e.g., Prosecutor v. Delalic, Judgment of the Appeals Chamber, IT-96-21-A, 20 February 2001. As that doctrine was applied in the context of inter-ethnic conflict, it would require some extension to apply in the present situation.
 For example, an Al Qaeda member of Italian citizenship residing in the US and alleged to have participated in the September 11 attacks would not technically qualify as a protected person. Nor would a British national fighting with Al Qaeda in Afghanistan, since the UK may be regarded as a CO-belligerent However, nationals of neutral countries present in Afghanistan are protected persons.
 As the Geneva Conventions apply to factual situations independent of the labels attached to those situations by Parties to the conflict, it may be argued that the recent INS detentions constitute de facto internment for the purposes of the Fourth Convention.
 ICRC Commentary to art. 6 of the Fourth Convention, p. 60 ("Even a patrol which penetrates into enemy territory without any intention of staying there must respect the Conventions in its dealings with the civilians it meets. When [the patrol] withdraws, for example, it cannot take civilians with it, for that would be contrary to Article 49 which prohibits the deportation or forcible transfer of persons from occupied territory. The same thing is true of raids made into enemy territory or on his coasts. The Convention is quite definite on this point: all persons who find themselves in the hands of a Party to the conflict or an Occupying Power of which they are not nationals are protected persons. No loophole is left.")
 Support for the proposition that the fair trial provisions of Article 75 are declaratory of customary law, see ICRC Commentary to art. 75 of Protocol I, para. 3084 (Article 75 regarded as elaboration of fair trial provision of Common Article 3, the customary nature of which is well-established).
 It may be possible to classify the attacks as crimes against humanity or, if the law of armed conflict is deemed to apply to those attacks, war crimes. The attacks could constitute murder as a crime against humanity if the scale and coordination of the attacks could be deemed to fulfill the required element of a "widespread or systematic" attack. Possible war crimes would include: perfidious attack, murdering civilians, and targeting civilian objects.
 It is arguable that human rights law fully applies in times of armed conflict in the absence of a legitimate and formally pronounced derogation by the state or states concerned. See, e.g., Juan Carlos Abella v. Argentina, Case 11.137, Report Nº 55/97, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 271 (1997). While states may derogate from certain human rights obligations when faced with a public emergency that threatens the life of the nation, strict limitations apply. See General Comment 29 (2001) of the Human Rights Committee. Further, the US does not appear to have lodged any derogation with respect to the present conflict.
 While states may derogate from certain obligations with respect to particular individuals, general derogation is not permitted. Even where selective derogation is permitted, trial rights are regarded as non-derogable.
 A Protecting Power is a neutral state appointed by a party to the conflict to help monitor compliance with the Geneva Conventions and to protect the interests of that state vis-a-vis the enemy state.
 See ICRC Commentary to art. 75, para. 3142 ("In case of doubt, the defendant can always invoke the most favorable provision.")
 It is unclear whether this obligation could be avoided by charging the accused with common crimes based upon conduct that constitutes a violation of the Geneva Conventions. Given the little weight accorded to labels by the Geneva Conventions, the better view may be that the obligation turns not on the precise charge but on the nature of the underlying offense.
 See Fourth Convention, art. 146, common to the four conventions. See also ICRC Commentary to art. 75 of Protocol I, para. 3142.
 Accused persons must also be allowed the benefit of assistance from the Protecting Power, should one exist. Third Convention, art. 105 and 107.
 Third Convention, art. 130; Fourth Convention, art. 147.
ASIL Insights are intended to identify international law issues in order to provide a basis for informed discussion of current events. They are not intended to be definitive, and they do not necessarily reflect the views of all members of The American Society of International Law. The Society itself takes no position on these issues.