State Department cable re: Applying the Geneva Conventions to the Taliban detainees, but not granting Taliban POW status. Because Afghanistan is a signatory to the Geneva Conventions, the Geneva Conventions apply, but because the fighters are not wearing uniforms with insignia, etc., Prisoner of War (POW) status does not apply to them. There is an analysis of this position and conclusions based on facts on the ground.
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025174
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KODAKC.008025
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TO AMEMBASSY TBILISI IMMEDIATE
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SECRETSTATE 025174
OFFICIAL INFORMAL
E.O. 12958: DECL: 2/9/12
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SUBJECT: OFFICIAL-INFORMAL FOR EUR/CACEN POSTS
CLASSIFIED BY EUR P/DAS CHARLES P. RIES FOR REASONS 1.5 B
AND D.
1.
(U) FEBRUARY 7 1800
2.
(U) I KNOW I SAID I'D CUT BACK TO THREE DAYS A WEEK,
ALL: FOR INFORMATION ONLY
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UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY: SHARON E AHMAD DOS-002022
DATE/CASE ID: 03 NOV 2004 200303827 UNCLASSIFIED
2
UNCLASSIFIED
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BUT IN VIEW OF THE LAPSE IN THE SERIES LAST . WEEK AND
MONDAY, AND SOME BREAKING NEWS TODAY, I THOUGHT I'D SEND
THIS OFF TONIGHT.
B5
4. (C) GENEVA CONVENTION AND TALIBAN DETAINEES: AS
FORESHADOWED LAST NIGHT, ALL WILL HAVE SEEN THE ACCOUNTS
OF THE WHITE HOUSE ANNOUNCEMENT OF THE PRESIDENT'S
DECISION ON APPLICATION OF GENEVA CONVENTION (AND TOMORROW
MORNING YOU EVEN MAY HAVE THE ALDAC THAT L IS STRAINING TO
SECRET
PAGE 03 STATE 025174 081520Z GET OUT TONIGHT). IN SHORT, GENEVA APPLIES TO THE TALIBAN BECAUSE AFGHANISTAN IS A PARTY TO GENEVA AND THE TALIBAN MAY HAVE BEEN THE GOVERNMENT, BUT THE TALIBAN DETAINEES STILL DO NOT MERIT POW STATUS BECAUSE THEY DON'T MEET THE .TESTS OF THE CONVENTION AS ARMED FORCES OF A GOVERNMENT. Bl
A TRIBUNAL
TO MAKE DETERMINATIONS IN INDIVIDUAL CASES IS NOT •
REQUIRED._ AL QAIDA DETAINEES OF COURSE ARE NOT COVERED BY
GENEVA CONVENTION BECAUSE THEY ARE AN INTERNATIONAL
TERRORIST GROUP NOT ASSOCIATED WITH A STATE. AS
PREVIOUSLY ANNOUNCED, WE HAVE MADE A POLICY DECISION TO
TREAT BOTH SETS OF DETAINEES IN A MANNER CONSISTENT WITH
THE PRINCIPLES OF THE GENEVA CONVENTIONS.
Bl
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DOS-002023
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6. (U) I REPEAT HERE THE TEXTS OF THE MORE INTERESTING
OF THE WHITE HOUSE PRESS OFFICE Q'S AND A'S ASSOCIATED
WITH THIS DECISION (I WOULDN'T BE SURPRISED TO SEE THE
WHOLE BATCH IN THE ALDAC):
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Q. WHAT'S THE BASIS FOR THE PRESIDENT'S DECISION?
A. AL-QAIDA IS NOT A STATE PARTY TO THE GENEVA
CONVENTION; IT IS A FOREIGN TERRORIST GROUP. ITS MEMBERS
ARE THEREFORE NOT ENTITLED TO THE PROTECTIONS OF THE
GENEVA CONVENTION.
IN CONTRAST, AFGHANISTAN IS A PARTY TO THE GENEVA
CONVENTION. ALTHOUGH THERE ARE GROUNDS TO CONCLUDE THAT
AFGHANISTAN WAS A FAILED NATION STATE AT THE OUTSET OF THE
CONFLICT, THE PRESIDENT HAS DECLINED TO DETERMINE THAT THE
TALIBAN ARE NOT COVERED BY THE TREATY. HOWEVER, THE
TALIBAN DETAINEES ARE NOT ENTITLED TO POW STATUS UNDER THE
TERMS OF THE CONVENTION.
Q. WHY DON'T THE TALIBAN DETAINEES QUALIFY AS POWS UNDER
THE CONVENTION?
A. THE GENEVA CONVENTION ON PRISONERS OF WAR WAS INTENDED
TO PROTECT ONLY THOSE PEOPLE WHO QUALIFY AS PRISONERS OF
WAR -- HENCE ITS NAME. ARTICLE 4 OF THE CONVENTION
SPECIFIES THE CATEGORIES OF PEOPLE WHO FALL INTO THE HANDS
OF THE ENEMY WHO ARE ENTITLED TO BE TREATED AS POWS. THE
COMMENTARY TO THE GENEVA CONVENTION EXPLAINS THAT "ARTICLE
4 IS IN A SENSE THE KEY TO THE CONVENTION, SINCE IT
DEFINES THE PEOPLE ENTITLED TO BE TREATED AS PRISONERS OF
WAR." THE TALIBAN DETAINEES DO NOT FIT INTO ANY OF THESE
CATEGORIES.
THEY ARE NOT THE REGULAR ARMED FORCES OF ANY GOVERNMENT.
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RATHER THEY ARE AN ARMED GROUP OF MILITANTS WHO HAVE
OPPRESSED AND TERRORIZED THE PEOPLE-OF AFGHANISTAN AND
HAVE BEEN FINANCED BY, AND IN TURN SUPPORTED, A GLOBAL
TERRORIST NETWORK. THEY DO NOT MEET THE CRITERIA UNDER
WHICH MEMBERS OF MILITIAS CAN RECEIVE POW STATUS EITHER.
TO QUALIFY AS POWS, MILITIA MUST SATISFY FOUR CONDITIONS:
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THEY MUST BE PART OF A MILITARY HIERARCHY; THEY MUST WEAR
UNIFORMS OR OTHER DISTINCTIVE SIGN VISIBLE AT A DISTANCE;
THEY MUST CARRY ARMS OPENLY; AND THEY MUST CONDUCT THEIR
OPERATIONS IN ACCORDANCE WITH THE LAWS AND CUSTOMS OF WAR.
THE TALIBAN HAVE NOT EFFECTIVELY DISTINGUISHED THEMSELVES
FROM THE CIVILIAN POPULATION OF AFGHANISTAN. MOREOVER,
THEY HAVE NOT CONDUCTED THEIR OPERATIONS IN ACCORDANCE
WITH THE LAWS AND CUSTOMS OF WAR; INSTEAD, THEY HAVE
KNOWINGLY ADOPTED AND PROVIDED SUPPORT TO THE UNLAWFUL
TERRORIST OBJECTIVES OF AL-QAIDA.
THE TALIBAN DO NOT QUALIFY UNDER ARTICLE 4(A)(3) WHICH
COVERS "MEMBERS OF REGULAR ARMED FORCES WHO PROFESS
ALLEGIANCE TO A GOVERNMENT OR AN AUTHORITY NOT RECOGNIZED
BY THE DETAINING POWER" BECAUSE THE CONVENTION APPLIES
ONLY TO REGULAR ARMED FORCES WHO POSSESS THE ATTRIBUTES OF
REGULAR ARMED FORCES, I.E. DISTINGUISH THEMSELVES FROM THE
CIVILIAN POPULATION AND CONDUCT THEIR OPERATIONS IN
ACCORDANCE WITH THE LAWS AND CUSTOMS OF WAR.
Q. WHY NOT TREAT ALL THE DETAINEES AS POWS? WHO CARES?
A. SEVERAL REASONS. FIRST, THERE IS AN IMPORTANT
PRINCIPLE AT STAKE. THE GENEVA CONVENTION HAS ESTABLISHED
CRITERIA FOR POW STATUS. ONE OF THE REASONS IT DOES IS TO
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ENSURE THAT ONLY MEMBERS OF LEGITIMATE ARMED FORCES
RECEIVE POW PRIVILEGES, NOT OTHER GROUPS WHO TAKE UP ARMS
UNLAWFULLY AND DO SO OBSERVE THE LAWS AND CUSTOMS OF WAR.
IF ALL CAPTURED COMBATANTS WERE PROVIDED POW PRIVILEGES,
THAT WOULD ELIMINATE ONE DISINCENTIVE TO TERRORISM OR
OTHER TYPES OF UNLAWFUL COMBAT.
SECOND, WE WANT TO INCENTIVIZE THE ARMED FORCES OF OTHER
COUNTRIES TO CONDUCT THEMSELVES SO AS TO BE ELIGIBLE FOR
POW STATUS. THIS MEANS WEARING UNIFORMS THAT DISTINGUISH
THEMSELVES FROM CIVILIANS AND. REQUIRING THEM NOT TO
INVOLVE THE CIVILIAN POPULATION IN A CONFLICT IN WAYS THAT
SUBJECT CIVILIANS TO RISK. INSISTING THAT THE CRITERIA
FOR POW STATUS ARE MET PROTECTS CIVILIANS BY MAINTAINING A
SHARP DISTINCTION BETWEEN COMBATANTS AND NON-COMBATANTS.
THIRD, WE TAKE OUR TREATY OBLIGATIONS SERIOUSLY AND WE
BELIEVE IN APPLYING THE TERMS OF THE CONVENTION. THE
GENEVA CONVENTION FOR GOOD REASON CLEARLY DIFFERENTIATES
BETWEEN THOSE ENTITLED TO POW STATUS AND THOSE WHO ARE
NOT.
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FINALLY, MANY PRIVILEGES GIVEN TO POWS UNDER THE
CONVENTION ARE SIMPLY INAPPROPRIATE IN THE CURRENT
SITUATION. SOME OF THE SPECIFIC TREATMENT CONDITIONS
PROVIDED TO POWS BY THE GENEVA CONVENTION WERE SUITABLE
FOR REGULAR SOLDIERS IN 1949 BUT ARE NOT APPROPRIATE FOR
TERRORISTS IN 2002. SOME TREATMENT CONDITIONS ARE NOT
COMPATIBLE WITH THE EXTRAORDINARY SECURITY RISK POSED BY
THESE DETAINEES, WHO ARE EXTREMELY VIOLENT AND DANGEROUS
AND POSE A THREAT TO THE U.S. FORCES WHO ARE GUARDING THEM
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AND TO EACH OTHER
FOR EXAMPLE, WE DO NOT PLAN TO INSTALL CANTEENS WHERE
DETAINEES MAY PURCHASE FOOD, SOAP, AND TOBACCO. WE WILL
NOT BE GIVING THE DETAINEES AT GUANTANAMO A MONTHLY
ADVANCE OF PAY, OR ALLOW THEM TO HAVE AND CONSULT PERSONAL
FINANCIAL ACCOUNTS. DETAINEES WILL NOT BE ALLOWED TO RECEIVE SCIENTIFIC EQUIPMENT, MUSICAL INSTRUMENTS, OR
SPORTS OUTFITS.
B1
[BEGIN READOUT:I
7
8. (U) HERE IS QUICK AND DIRTY READOUT ON US-UK BILATERAL TODAY ON BUILDING AFGHAN ARMY/POLICE AND
B6
EXTENDING ISAF MISSION AND MANDATE. STATE/DOD DELEGATION
LED BY JIM DOBBINS. UK COUNTERPART DEL LED BY FCO
Bl
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[END]
21. (U) GOOD STUFF, NO? C
MINIMIZE CONSIDERED.
POWELL
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