b. In regards to the al-Qaida foreign terrorist group, the characterization is
more complex. Prior to September 1 lth,operations by and against
terrorists were not traditionally treated as armed conflict (neither
international nor non-international armed conflict). Terrorists have been
treated as criminals and responses viewed as "law enforcement." Any
military involvement was traditionally viewed within the MOOTW
context and therefore was treated as operations below the armed conflict
spectrum. Clearly, the US. is in an "armed conflict" with al-Qaida,
however, the armed conflict with al-Qaida does not fit neatly into the
existing armed conflict paradigms. Al-Qaida is not a State and therefore
any direct U.S action versus al-Qaida network lacks the requirement of
two or more states actually involved in the conflict for there to be an
international armed conflict. Additionally, the non-international armed
conflict paradigm traditionally involved the concepts of "civil wars" or
"internal conflicts." Has the military action taken against al-Qaida been
absorbed into the international armed conflict (Common Article 2) with
the Taliban or is the conflict with al-Qaida best described as,an armed
conflict not of an international character (Common Article 3)? Neither?
To date, there does not seem to be an official U.S. position regarding the
al-Qaida terrorist group other than that the Geneva Conventions do not
apply to them since they are not a "party" within the meaning of Common
Article 2 of the convention^.^^D. The Right Kind of Person.- Once a conflict rises to the level of common Article 2, Article 4, GPW,
determines who is entitled to the status of a prisoner of war. Traditionally,
persons were only afforded prisoner of war status if they were members of
the regular armed forces involved in an international armed conflict. The
GPW also included members of militias or resistance fighters belonging to a
party to an international armed conflict if they met the following criteria:
a. Being commanded by a person responsible for their subordinates;b. Having fixed distinctive insignia;2928 Id.
For a discussion of the uniform requirement, see In re Quirin, 317 U.S. 1 (1942) and Mohamadali and
Another v. Public Prosecutor (Privy Council, 28 July 1968), 42 I.L.R. 458 (1971). The first attempt to codify
the uniform requirement necessary to receive POW status occurred during the Brussels Conference of 1874.
29