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Monday, 28 January, 2002, 22:13 GMT
Who is a prisoner of war?
Prisoner at Guantanamo Bay
The US says the detainees are "unlawful combatants"
US President George W Bush has made it clear that prisoners captured in Afghanistan - and those who are now being held in Cuba - will not be treated as prisoners of war.

After weeks of international criticism, the White House spokesman, Ari Fleischer said there would be no change in the way they were being treated.

The row over whether the Guantanamo Bay detainees qualify for the special provisions afforded to prisoners of war (POWs) has centred around the Geneva Conventions on the rights of prisoners.

The key principles grew out of an original agreement dating back to 1864.

They are established in one of four conventions adopted in 1949 and ratified by 189 countries.

A later set of rules, the "Additional Protocol" was drafted in 1977. It significantly alters the criteria of eligibility for POW status, but neither the US or Afghanistan are among the 159 signatories.

The relevant sections of both documents are summarised below:

Geneva Convention (III)

According to Article 4 of the third Geneva Convention, POWs include individuals in the following categories who have fallen into the power of the enemy:

  • Members of the armed forces of a party to the conflict or of militias or volunteer corps forming part of such armed forces

  • Members of other militias and members of other volunteer corps, including those of organised resistance movements as long as they:
    (a) are commanded by a person responsible for his subordinates
    (b) have a fixed distinctive sign recognisable at a distance
    (c) carry arms openly
    (d) conduct their own operations in accordance with the laws and customs of war

  • Members of regular armed forces who profess allegiance to a government or an authority not recognised by the detaining power

  • Inhabitants of a non-occupied territory who have spontaneously taken up arms to resist an invading force, provided that they carry arms openly and respect the laws and customs of war.

Article 5 of the convention states that, "should any doubt arise" as to whether detainees fit these categories, they "shall enjoy the protection of the present convention" until "their status has been determined by a competent tribunal".

Additional Protocol

According to Article 43 of Additional Protocol I, "any combatant... who falls into the power of an adverse party shall be a prisoner of war".

Article 44 then clarifies the definition of the term "combatant".

According to paragraph 2, while all combatants are obliged to comply with the laws of war, violations of these rules "shall not deprive a combatant of his right to be a combatant or... to be a prisoner of war".

The only exceptions to this are in relation to the use of clothing and symbols to make combatants identifiable.

Paragraph 3 recognises that it is not always possible for combatants to distinguish themselves from the civilian population, as they are obliged to do under international law.

It states that a fighter "shall retain his status as a combatant, provided that, in such situations, he carries his arms openly" during each military engagement and while visible to the adversary while preparing to attack.

According to paragraph 4, if he fails to do this, he forfeits his status as a POW, but "shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war".

Precedents

  • Uniform and identification
    Viet Cong fighters captured during the Vietnam War were eventually given POW status, despite the fact that they wore nondescript black clothing with no insignia.

  • Recognised regimes
    Although the US did not recognise the Chinese regime diplomatically, it still treated Chinese captives from the Korean War as POWs.

    Some legal experts have suggested that a distinction should be made between al-Qaeda and Taleban prisoners, as the Taleban were the military force of the de facto government of Afghanistan - even though it was only recognised by three governments - while al-Qaeda are a stateless militia.

  • Rules of war
    While some German air squadrons broke the rules of war by attacking civilian targets during World War II, this did not discount all captured members of the country's air corps from POW status.

  • See also:

    27 Jan 02 | Americas
    No POW rights for Cuba prisoners
    22 Jan 02 | Americas
    Judge's 'doubts' over Cuba prisoners
    21 Jan 02 | Media reports
    US on trial over prisoners in Cuba
    20 Jan 02 | Americas
    In pictures: Camp X-Ray prisoners
    28 Dec 01 | Americas
    Destination Guantanamo Bay
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