Law of War Handbook 2005

7. U.S. Policy Regarding Status of Enemy Participants in Operation Enduring
   Freedom.&

a.  The White House statement released on 7 Feb 02 resolved this issue. The

President decided that neither Taliban nor al-Qaida detainees are entitled

to POW status.47

b. Al-Qaida is not a state party to the Geneva Convention and therefore not

entitled to POW status.48

c.  The President decided that although the Geneva Conventions apply to the

Taliban detainees, they are not entitled to POW status because they do not

satisfy the four conditions specified in Article 4, GPW. The White House

position is that the Taliban have not distinguished themselves from the

civilian population of Afghanistan and they have not conducted their

operations in accordance with the laws and customs of war.49

E. When an EPW's Status is in Doubt.

1. Policy: Always initially treat as EPWs.'"


2. Law: Article 5, GPW: "Should any doubt arise as to whether persons, having
   committed a belligerent act and having fallen into the hands of the enemy,
   belong to any of the categories enumerated in Article 4, such persons shall
   enjoy the protection of the present Convention until such time as their status
   has been determined by a competent tribunal."


3. U.S. policy is to convene a three-member panel (FM 27- 10,77 1 c). Their role
   is to ascertain facts, not to adjudicate any type of punishment.

a.  AR 190-810PNAVINST 3461.61AFI 3 1 -304lMCO 3461.1, Enemy

Prisoners of War, Retained Personnel, Civilian Internees and Other

46 7 Feb 02 White House Statement, supra note 27.

47 Id.

Id.

49 Id. See also 22 Jan 02 NSC statement of US. policy regarding al-Qaida and Taliban detainees. Taliban and
al-Qaida lack some or all of the four attributes specified in Article 4, CG 111 and therefore do not receive POW
status.