This State Department memo addresses the question of applying Article 5 of the Geneva Convention to the Guantanamo detainees. The memo states POW status does not apply to the Taliban or to Al Qaeda because they are: 1) not subject to military command; 2) wear uniforms with insignia; 3) carry arms openly; or 4) follow laws and customs of war. The memo further states that the US "does not need to convene Article 5 tribunals to make status determinations because there is no doubt about the detainees' status." Even when in doubt, Article 5 tribunals only necessary if US ceases providing "humane treatment."
UNCLASSIFIED
STATUS OF DETAINEES
RELEASED IN PART Background Bl, 1.4(D)
(U) The 1949 Geneva Convention on POWs applies to the
conflict with the Taliban in Afghanistan. The Taliban's
members are not, however, entitled to POW status because
the Taliban does not have a proper military command, does
not sufficiently distinguish itself from civilians, and
systematically violates the laws and customs of war. The
Geneva Convention does not apply to al Qaeda because it is
not a High Contracting Party to the Geneva Conventions.
Even if it were, it fails to meet any of the four criteria
applicable to lawful forces (subject to military command,
wear uniforms, carry arms openly, and follow laws and
customs of war).
•
(U) The US does not need to convene Article 5 . tribunals
to make status determinations because there is no doubt
about the detainees' status. If doubt should arise in
any individual case, the US will revisit the decision.
•
(U) Even if there were doubt, Article 5 does not require
the US to convene tribunals unless and until such time as
it stops providing the basic protections of the
Convention, e.g., basic humane treatment.
•
(U) The US is providing basic humane treatment and other
similar protections. The detainees are also receiving
privileges and benefits (e.g., new shoes and clothing,
personal toiletries, sleeping pads and blankets, the
opportunity to worship, the means to send mail, etc.)
that exceed basic protections.
•
(U) Article 5 tribunals were designed to prevent lowlevel arbitrary determinations, e.g., by a corporal in
the field, but in this case, the President himself
decided on POW status after careful consideration with
his top advisers.
•
(U) Many European countries are party to Additional
Protocol 1 of the 1949 Geneva Conventions -- which
establishes a presumption of POW status for detainees -but the US is not a party. Although we recognize that
some Protocol I provisions reflect customary
international law (e.g., basic protections under Article
75), this does not include the presumption of POW status.
UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: WILLIAM J CEHRON
CLASSIFICATION: SECRET REASON: 1.4(3)
DECLASSIFY AFTER: 31 MAR 2012
DATE/CASE ID: 16 NOV 2004 200303827 DOS-001315
UNCLASSIFIED0