F. Treatment as a Matter of Policy.- GPW is part of the Supreme Law of the Land (Article VI, Constitution of the
United States). Thus, its Articles apply unless they are inconsistent with the
Constitution itself. - DA is Executive Agent for all EPW Matters. DoD Dir. 23 10.1 provides:
"U.S. Military Services shall comply with the principles, spirit, and intent of
the international law of war, both customary and codified, to include the
Geneva Conventions.'"" - DoD Dir. 5 100.77, Law of War Program, requires all US Forces to comply
with the law of war in the conduct of military operations and related
activities in armed conflict, however such conflicts are characterized. - CJCS 58 10.01B, Implementation of the DoD Law of War Program, indicates
that the laws of war are to be applied on MOOTW by American forces. - Every JA and soldier must understand that STATUS is a matter of law.
While the United States TmATS all persons initially detained consistent
with the provisions of the GPW, this is only a policy." - The Phenomenon of Detainees. In operations other than war, the status of a
person temporarily detained is frequently at issue. Therefore, our policy is to
initially provide the greatest protections this person could receive until our
government determines their legal status
a. We train our soldiers to always treat captured persons as EPWs
(Doctrine).conflict." Pictet at 77-78. Therefore, it seems logical that if there is no doubt that a captured individual fails to
meet one of the categories of article 4, there is no need to conduct an Article 5 tribunal. Furthermore, in the
case of al-Qaida, they clearly are not a party to the convention, therefore Article 5, GPW, as well as the entire
GPW (except arguably CA 3), does not apply to them. However, assuming arguendo that al-Qaida could be
considered a resistance movement belonging to the Taliban there is no doubt that al-Qaida members fail to
meet the four criteria under Article 4(A).
'' Note, the DoD Directive refers to Geneva Conventions, not simply the one relating to EPWs. This
supports the use of the GC when more appropriate than the GPW: certain detainees. For a thorough analysis
of the rights afforded civilians along the operational continuum, see Richard M. Whitaker, Civilian Protection
Law in Military Operations: An Essay, ARMYLAW.(Nov. 1996), at 3.
55 See also Art. 4 & 27, GC.