State Department talking points memo on the status of Guantanamo detainees as Unlawful Combatants vs. Prisoners of War (POWs). The memo cites the Geneva Convention's POW requirements that POWs wear a uniform with a distinctive insignia, that they adhere to military standards, including rate, rank and Chain-of-Command, and the combatant conforms to the Law of War to be afforded POW status. The memo also states that regardless of the POW or Unlawful Combatant status of the detainee(s), all detainees are being treated humanely and in consistent with the basic standards of the Geneva Convention, i.e. medical treatment, food, clothing and visitation by the International Committee for the Red Cross (ICRC).
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Reports over the weekend distinguished between prisoners of war (POWs) and "unlawful combatants" under the Geneva Conventions. POWs are those persons who fall within one of several defined categories of armed forces, provided for in the Third Geneva Convention on the protection of POWs. All such categories presume that armed forces meet one of several requirements designed to ensure that combatants distinguish themselves from the civilian population and enemy soldiers (e.g., distinctive insignia/uniform and carrying arms openly) and adhere to the law of war. A detainee who belongs to an armed force that fails to meet such requirements would not be entitled to POW status. For instance, al Qaeda detainees have no entitlement to POW status precisely because, inter alia, their organization is designed to violate the law of war by targeting civilians.
The Geneva Conventions do not explicitly provide for a category of combatants who do not meet the POW requirements; customary international law refers to such persons as unlawful combatants -- persons not entitled to engage in hostilities as regular soldiers can. Such persons are entitled to the basic humane treatment protections of the Third Geneva Convention (under what is called "Common Article 3"), but they are not entitled to POW status and the various benefits accorded to POWs.
Importantly, the status question will not affect treatment of persons detained at GTMO, since all detainees are being treated consistent with the principles of the Third Geneva Convention, taking into account the temporary nature of facilities and the severe security environment.
Points:
-- THE LEGAL STATUS OF DETAINEES IS CURRENTLY BEING REVIEWED WITHIN THE ADMINISTRATION.
-- WHATEVER THE LEGAL STATUS OF DETAINEES, THE INDIVIDUALS
BEING DETAINED AT GUANTANAMO ARE BEING TREATED HUMANELY
CONSIST ENT WITH THE PRINCIPLES OF THE GENEVA CONVENTIONS.
-- EACH DAY THE DETAINEES ARE GIVEN THREE CULTURALLY APPROPRIATE MEALS.
-- THEY HAVE DAILY OPPORTUNITIES TO SHOWER, EXERCISE AND RECEIVE MEDICAL ATTENTION.
-- IT IS OF COURSE THE CASE THAT THESE DETAINEES ARE VERY DANGEROUS PEOPLE, AND ALL APPRORIATE SECURITY PRECAUTIONS ARE BEING TAKEN.
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UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY: ARCHIE M BOLSTER
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DATE/CASE ID: 10 DEC 2004 200303827 DOS-001033
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-- WE ARE CONTINUING TO INVESTIGATE THE CONNECTION BETWEEN THE DETAINEES AND AL QAEDA, AND ARE COLLECTING ANY RELEVANT INFORMATION CONCERNING CRIMES THEY MAY HAVE COMMITTED.
-- THE INTERNATIONAL COMMITTEE FOR THE RED CROSS IS BEING GIVEN ACCESS TO THE DETAINEES AT GUANTANAMO TO INSPECT THE CONDITIONS THERE.
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DOS-001034