This DOD memo details the U.S. authority for detaining foreign nationals engaged in military-type activities and specifically cites the 1949 Geneva Convention. "Persons currently being detained by the US military…are subject to the protections afforded under international law.
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LEGAL AUTHORITY: Persons cWTenUy being detaiitcd by the American military contingent of the MNF-I are subject to the protections afforded under international law, as enunciated in DOD Joint Instruction. "Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees,» AR 19()"8; OPNAVINST 3461.6; AFR 31-304; . and MCO 3461.1 (1 Oct 97). This joint instruction/regulation enunciates DOD policy, procedures, and responsibilities for the administration, treabnent, employment, and compensation of"Enemy Prisoners of War" (EPW), ''Retained Personnel" (RP). Civilian Internees (CI) and "Other Detainees" (00) in the custody of U.S. Anned Forces. It specifically implements international law, both customary and codifi~ relating to EPW, RP, CI. and ODs which includes those persons held during military operations other than war. The principal treaties underlying the joint instructionlregulation are:
(I)
The 1949 Geneva Convention'Relative to the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field (GWS);
(2)
The 1949 Geneva Convention for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members ofArmed Forces at Sea (GWS SEA);
(3)
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War
(GPW); and
(4)
The 1949 Geneva Convention Relative to the Protection of Civilian Persons in' Time of War (GC), and In the event of conflicts or discrepancies between this· regulation and the Geneva Conventions, the provisions of the Geneva Conventions take precedence.
As articulated in joint instruction/regulation AR 190-8, OPNAVINST 3461.6, AFJI 31
304, and MCO 3461.1, U.S. policy, relative to the treatment of Enemy Prisoners of War,
Civilian Internees and Retained Personnel in the custody of the U.S. Armed Forces, is
that "(a)1) persons captured, detained. interned. or otherwise held in U.S. Anned Forces custody during the course of conflict will be given humanitarian care and treatment from the moment they fall i~to the hands of U.S. forces until final release or repatriation." Further, "{a)U persons t2ken into custody by U.S. forces"will be provided with the protections of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (GPW) until some other legal status is determined by competent authority." (emphasis added) (para, 1-5(a)(1-2) In this regard, the instruction/tegulation specifically notes:
"Photographing, filming. IUId video taping of (Enemy l'riMJners r'f
War). (elvOian Internees) IUId (Retained Personnel) for other thlUl
inlemai Internment Facility administration Dr
Inte/ligence/counterintelligence purposes is strictly prohibited. No
group, wide area or aerial photographs of (Enemy Prisoners of W81).
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(Civilian Internees) and (Retained PersoMel) or facilities will be taken unless approved by the senior Military Police officer in the Internment Facility commander's chain ofcommand." (emphasis added)(para. I-S(d»
"In the interest ofnationtd securily, tuld the protection ofthe prisoners
from public curibsity, lind in iUlherence to the GPWand Gc, EPJY, CI,
RP and other detainees will not be photogrllphed as per paragraph l-Sd.
Interviews ofEPW, CI, RP and other detainees by news media will not
be permitted. Requests for media access to EPW, Cit or other detainee
intcnunent facilities will be coordinated through the Public Affairs Office,
and the Staff Judge Advocate. and approved by the first commander who
exercises General Court Martial Convening Authority over the internment
facility. Requests for exception to policy will be forwarded through command channels to HQDA (SAPA.PP), Washington, D.C. 203104420." (emphasis addcd)(para. 1-9)
b)(5)
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