United States Department of State

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Tfashli~UfO'I. D. C.

205:!(}

January 11, 2002
UNCLASSIFIED
MEMORANDUM
..John C:--Yoo--- .----

Deputy Assistant Attorney General
Office of the Legal Counsel
United States Department of Justice
FROM:

William H. Taft, IV
Legal Adviser

SUBJECT:

Your Draft Memorandum of January 9

I attach a draft memorandum commenting on the draft
While we have not been
able in two days to do as thorough
job as I would like in
reviewing your draft, I am forwarding these comments to you
in draft form now for your consideration. Theysuggest
that both ,the most important factual assumptions on which
your draft is based and its legal analysis are seriously
flawed.
you sent me earlier in the week.

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Our concerns with your draft are focussed on its
consideration of the status of detainees who were'members
of the Taliban Militi~ as a practic~l matter. Under the
Geneva Conventions, these persons would be entitled to have
their status determined individually. We find untenable
the draft memorandum's conclusion that this is unnecessary
because (1) Afghanistan ceased to be a party to the
Conventions, (2) the President may suspend the operation of
the Conventions with respect to Afghanistan, and (3)
customary j nternatiOtliiol. la'" does not bind the United
States. As a matter of international law, the draft
comments show, all three premises are wrong.
The draft memorandum badly confuses the distinction
between states and governments in the operation of the law
of treaties.
Its conclusion that "failed states H cease to
be parties to treaties.they have join~d is without support.
Its argument that Afghanistan became a "failed stateH and
thus was no Lonqe r- bound by treaties to which it 'had been a
party is contrary to the official position of the United
States, the United Nations and all other states that have

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considered the issue. The memorandum's asser~ion that the
President may suspend ~he United States' obligations under
the Geneva Conventions is legally flawed and procedurally
impossible at this stage. The memorandum fails to address
the question of whether customary international law is
binding on the United States as a matter of international
law.
(As John Marshall was fond of saying, to ask t~__ .
question is to answer it.

Jbhn, I understand you have long been convinced that
treaties and customary international law have from time to
time been cited inappropriately to circumscribe the
President's constitutional authority or pre-empt the
Congress's exercise of legislative power.
I also
understand your desire to identify legal authority
establishing the right of the United States to treat the
members of the Taliban Militia in the way it thinks best,
if such authority exists.
I share your feelings in both of
these respects.
I do not, however, believe that on the
basis of your draft memorandum I can advise either the
Presiden.t or t:11l:Sl:c::rl:taryof.5tatl:tl1attheobligations of
the United States under the Geneva Conventions have lapsed
with regard to Afghanistan or that the United States is not
bound to carry out its obligations under the Conventions as
a matter of international law. That may mean, of course,
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that we must determine specifically whether individual
members of the Taliban Militia in our custody are entitled
to POW status, and it ma~ be that some are actually
entitled to it. In previous conflicts, the United States
____ ._._._.h~S_9~al.t_~ith tens of thousands of detainees without
repudiating its obligations under the Conventions.
I have
no doubt we can do so here, where a relative handful of
persons is involved. Only the utmost confidence in our
legal arguments could, it seems to me, justify deviatin~
from the United States unbroken record of compliance with
the Geneva COIIventions in our cOnduct of mil~tary
operations over the past fifty years. Your draft
acknowledges that several of its conclusions are close
questions.
The attached draft comments will, I expect,
show you that they are actually incorrect as well as
incomplete. We should talk.
Attachment:
As stated.

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cc: Secretary of State
Judge Gonzalez

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DRAFT
January 11,2002
This provides our comments on the OLC Draft Memorandum for William J.
Haynes II, General Counsel, Department of Defense, Concerning the Application of
Treaties and Laws to Al Qaeda and Taliban Detainees. We look forward to discussing our
views further. "..,-..---.'''--'-'''-- _..,_.,..._•.
.....__.__.__._-_.._-- -------.. __._._._.__._ ..,_. _ ._- _..
_._.,,- -_...,.,..__._-_._..¥._--••..-".- ._-_._--_._-_._--- --_.. _'------ '.._-_----_._,_.,,~

_~.

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Our comments are grouped into four sections. First, we set out in a general way
some implications of the line of analysis presented in the draft opinion. Second, we
discuss various difficulties inherent in the draft's conclusions themselves, in particular
the questions of the existence of Afghanistan as a State and the continuity of treaty
obligations. We also consider cases when the Convention was previously applied;
including cases in which full compliance was not possible. and the consequences of such
non-compliance. Most importantly, we address the analysis of the Geneva Convention
obligations to Taliban forces. Third. we consider the draft memorandum's discussion of
whether the applicability of the Geneva Conventions may be suspended. Fourth, we
consider the draft memorandum's conclusion on the continued applicability of customary
intemationallaw in the event the Geneva Conventions are determined to be inapplicable.
Finally, we include in an appendix a summary of potential reactions to the conclusions
~thatfleit-hef·the Geneva Cenventions nor customary law is applicable.

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International law does not support key conclusions in the Draft Memorandum,
including those concerning Afghanistan's existence as a State. the continuity of treaty
obligations, the applicability of Geneva Convention III ("GPW") to Taliban forcesand
the applicability ofcustomary international law.
Treaty relations between Afghanistan and other nations continue to apply. The
issue of recognition ofthe Talibangovemment and its effectiveness in performing
governmental functions is entirely separate from the question of statehood and whether a
state remains a treaty partner. Specifically, the United States and the international
community have continued to recognize Afghanistan as a State with international treaty
obligations. Indeed, Afghanistan has remained a member of the United Nations at all
times. Afghanistan is today and has been at all relevant times a Party to the Geneva
Conventions. Even it: as the draft opinion suggests the Convention is now in force hilt
was not in effect under the Taliban regime, the U.S. is today subject to the obligations
applicable under the GPW.
The Geneva Conventions are applicable by their terms to the Taliban forces. The
GPW is intended to apply in the broadest set of circumstances, with "recognition" of the
adversary not a prerequisite to its application. Article 4(A)(3) of GPW specifically
applies to "members of the regular armed forces who profess allegiance to a government
or an authority not recognized by the Detaining Power." The Taliban qualify as a
"government or authority" and, as a category, Taliban forces could meet factual tests of
"regular armed forces." In cases of doubt as to specific individuals associated with the
Taliban, Article 5 of the Prisoners of War Convention requires that protection be

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provided until their status has been determined by a competent tribunal. Finally, the
suggestion in the draft opinion that the President might suspend the Geneva Conventions
is contrary to international law and procedurally unavailable.
Contrary to the conclusions of the draft opinion, customary international law
creates rights for, and obligations on, the United States. The U.S. relies on customary
international law in key areas, including law of war, immunities, treaty interpretation. law
ofthe sea,andexpropriaiiori:Thehreac:hofc:ustomary international law obligations
could subject the United States to adverse international consequences and reduce our
ability to conform the behavior of other countries to international standards. Even where
U.S. law trumps a particular international law for domestic purposes, it does not, without
more, relieve the U.S. of its international obligations.

Consequences of the Memorandum's Conclusions
If the analysis and conclusions of this draft opinion were accepted, a number of
the consequences could be very significant, and therefore should be noted:

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If neither the Geneva Conventions nor the customary intemationallaw of war
applied, the legal basis for military commissions would be undermined.

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Iflaw obligation applied, U.S. forces would also no longer enjoy the rights of
belligerents; they would become subject to ·prosecution for such common
crimes as murder and willful destruction of property.

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The conclusion that the Geneva Conventions do not apply could presumably
be the basis for actions that otherwise would violate the Convention, including
conduct that would constitute a grave breach. I This raises a risk of future
criminal prosecution for US civilian and military leadership and their
advisers, by other parties to the Geneva Conventions (in view of the
Convention obligations with respect to finding and prosecuting violations).

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For the first time, the United States would deny the applicability of the
Geneva Conventions to opposing forces in an armed conflict involving U.S.
forces This would be contrary to consistect ITS practice aimed at promoting
the widest possible application of those conventions.

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If Afghanistan is determined not to be a party to the Geneva Conventions
because it is a "failed State" or if the United States could suspend its treaty
obligations with Afghanistan under the Geneva Conventions, either

I The grave breaches specified inarticle 130 of Geneva Convention III include depriving the prisoner of
war "the rights of fair and regular trial prescribed in the Convention." Other potential breaches that would
not constitute grave breaches are "acts contrary to the provisions of the present Convention." GPW Ill,
Article 129, 3rd para.

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prospectively or for some identified period of time, Afghanistan would have
no effective treaty relationship with the United States under those
Conventions for the same period. The implications of such a legal approach
include:

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The United States would have no basis to complain of violations of the
Geneva Conventions committed against U.S. or coalition forces who
continue to conduct operations in Afghanistan, notwithstanding the fact
that hostilities may be ongoing.

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Afghanistan would also not be a party to any other treaty that was open
only to States. It would have no obligations vis-a-vis the United States
under the Nuclear Non-Proliferation Treaty; it would not be a member of
the IMF or World Bank for purposes of finance or assistance; it would
ceased to be a member of the United Nations and no longer have
obligations under the Charter.

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If Afghanistan had at some point ceased to exist as a State, numerous other
questions would arise that are neither addressed nor considered in the draft e.g., diplomatic relations and the status of our Embassy, ownership of assets,
-liabilityforelaims,loansanddebts;andsoforth;One must also consider the
implications of the fact that the position taken in the opinion is contrary to the
legal position consistently taken by the United States on the status of
Afghanistan, from 1996 until today.

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If the United States is precluded from maintaining mutual treaty obligations
with a "failed State", this would have far-reaching implications for the
conduct of U.S. foreign policy toward other States with questionable
governing regimes.

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Comments on the Draft Opinion
I. The Continuing Applicabilitv of Treatv Relations
The Draft OpiIli<:'>!J:sets forth twobasic argu.rnents with respect to the continuing
applicability of treaty relations.
First, it argues that Afghanistan ceased to be a party to the Geneva Conventions
because it ceased to be a State. If Afghanistan is a non-party, the U.S. did not have any
obligations vis-a-vis Afghanistan under the Treaty. Recognizing that Afghanistan is at
present undoubtedly a State, the opinion argues that even if Afghanistan's Party status is
"restored," the U.S. is still not bound to follow the Geneva Conventions because the
President can determine that Afghanistan has not yet "returned to the status of a state
party to the Convention" (p. 24), and because the jurisdictional provisions of the
Convention remain inapplicable even if it is.
Second, it argues that, even if Afghanistan is viewed as having remained a party
to the Geneva Conventions. the President can now determine that the obligations of the
··United·States~ed-t(}Afghanistan-undef:the·GOftVentions·wereor.··aresuspended;··and

that such a determination would be valid under intemational law.i

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While the first argument makes a number of valid points about the constitutional
role and legal authority of the President under domestic law, it is confused and inaccurate
in a number of other respects. The concept of vfailed State" has been developed as a
historical and political analytic tool, not as a legal concept. A failed State does not
thereby cease to be a-State-nor does it cease to be·a party to relevant Conventions.
- - - - . - . ------.-.
Specifically, neither the United States nor any other country has viewed
Afghanistan at any point as ceasing to be a State. Neither the United States nor any other
State has viewed it as ceasing to be a party to international agreements. The fact that the
United States did not recognize the Taliban as the government of Afghanistan is
completely irrelevant.
Since Afghanistan never ceased to be a party, there is no question whether its
party status is now fully or partially "restored," nor is there even such a concept of losing
and restoring party status in treaty law. As the opinion repeatedly fails to recognize, the
ability. inability. or even unwillingness of a State to perform international treaty
obligations is a question entirely separate from the question of its status. Afghanistan has
continued to be a State and a party to the Geneva Conventions during the relevant period.

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A. Afghanistan Has Continued to Be a State and a Pam to the Geneva
Conventions.
2

Draft Opinion at 28-32.

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1. In General, a "failed State" Does Not Cease to Be a State and
Remains a Part", to Relevant Conventions.

The concept of "failed State" has recently gained currency in both academic and
popular writing, but it is not a legal concept. Some argue that the normal international
law rul~s governin outside intervention in internal affai~s s~ould be differ~n.t in the c~se
of a "failed State." f Nonetheless. contrary to the suggestion In the draft oprruon. a "faded
State" is still understood to be a State. and it does not cease to be a party to relevant
Conventions."
According to the Draft Opinion, Afghanistan was not a State under the Taliban
because it failed "some, and perhaps all, of the ordinary tests of statehood.t" This is
inaccurate. The non-recognition of the Taliban was a foreign policy judgment; the
Taliban did ultimately effectively control as much as 90% of the territory, it exercised the
functions of a government, and it was generally treated by the international community as
a de/acto governing authority. Even if the Draft Opinion factual analysis were accurate,
however, the conclusion that a "failed State" is not a State rests on a misunderstanding
and misapplication of the criteria for statehood. It is also contrary to U.S. and
international practice.

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The discussion of the "tests" of statehood in relation to Afghanistan concern the
question of whether there is a government in control of the territory and capable of
engaging in foreign relations. There has been no question about the boundaries of
Afghanistan; neighboring countries have not sought to extend their borders into
Afghanistan, nor has there been any change in the delineation of Afghanistan in
authoritative United States maps.
Essentially, the Draft Opinion's argument turns on the premise that an existing
State must continue to have a recognized. effective government or else cease to be a
State. No such principle, however, exists in international law. To the contrary, it is wellestablished in international law and U.S. practice that the absence of a recognized
government, or a government in control of territory, does not render an existing State
"stateless." 6
Far from arguing that "failed States" should no longer be participants in treaty regimes, the literature
views the continued application of treaty regimes as particularly important with respect to failed States, to
ensure protection of the population. See. e.g.. Ruth Gordon. "Saving Failed States: Sometimes a
Neocolonialist Notion," 12 Am. U. 1. Intl L.& Policy 903 (1997); Oscar Schachter, "The Decline of the
Nation-State and Its Implications for International Law," 36 Colum. J. Transnat'I L. 7 (I 997); Jennifer
Moore, "From Nation State to Failed State: International Protection from Human Rights Abuses by Non•
State Agents," 31 Colum. Hum. Rts. L.Rev. 81 (1999).
4 For example, Oscar Schachter, whose article is referenced in the draft opinion, states: "The term "failed
states" has come to be used for these cases [where government and civil order have virtually disappeared,
including Liberia, Somalia, and ~fghanistanJ and others like them. The United Nations has continued to
treat them as member states, entitled in principle to 'sovereign equality,' ...;" Schachter, at 18.
S Draft Opinion at 22.
6 "There are therefore four conditions which must obtain for the existence of a state .... But once a state is
established, temporary interruption of the effectiveness of its government, as in a civil war or as a result of
3

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The "statehood" criteria to which the Draft Opinion refers are those applied to
determine whether to recognize a new State in the first instance; their application with
respect to the extinction of an existing State is an entirely different question. Once a
State comes into being, the question becomes not one of recognition, but rather a question
of extinction." There is a very strong presumption in international law against extinction
of a State, even after a lengthy period of internal anarchy (e.g., China, Somalia). S
We are aware of no instance in which a well-established existing State has ceased
to exist, either in the view of the United States or in the view of the international
community, on the grounds of internal conflict and absence ofa single effective or
recognized government." Nor do occupation and annexation by an external power. if
nonconsensual, normally affect the continuing existence of a State. To the contrary. there
are many examples of States continuing with only ineffective governments-in-exile or no
recognized government at all. It is well-established that internal conflict and revolution,
even if prolonged, do not affect the continuity of the existence of a State. In World War
II, for example, France, the Netherlands, and Belgium did not cease to be States when
they were overrun by Germany and the only independent "governments" were in exile.
The United States never accepted the incorporation of Estonia, Latvia and Lithuania by
the Soviet Union, and continued to recognize their existence as States. Neither the
.. J)I)ite~LStates_n...or.anx..o.theL~QUnlJY_tl1at.didnotrecognizeany.govemmentin. Cambodia
under the Hun Sen regime took the position that Cambodia itself was not a State.

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Nor is there any practice or authority that a State without a single effective,
recognized internal government somehow ceases to be a party to treaties or other .
international obligations. The United States has taken the position that treaty relations
can survive even in the effective absence of a country. In the case of the Baltics, for
example, the view of the United States wasthat.not only did·the Baltic States themselves
continue to exist, but also that all treaties with the Baltics continued to exist as treaties in
-.. force, although temporarily·incapable of performance by the Baltic States party.

2. Specificallv, the United States and the International Community Han
Continued to Recognize Afghanistan as a State with International
Treaty Obligations

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belligerent occupation, is not inconsistent with the continued existence of the state." Jennings and Watts. I
Oppenheim's International Law, §34, 120, 122 (1992).
7 Id., at 206-208.
8 See generally, James Crawford, The Creation of States in International Law, pp. 405-412 and 417-420.
9 "Of these four elements needed before a community may be regarded as a state, some may at times exist
only to a diminished extent, or may even be temporarily absent, without the community necessarily ceasing
to be a state. Thus the existenceof a civil war may affect the continued effective existence of a
govemment, or relations with other states may affect the degree to which sovereignty is retained, while the
state nevertheless continues to exist." Jennings and Watts, supra, §34, at 123 (footnotes omitted). Even in
cases of dissolution, annexation, and merger, moreover, despite the change in statehood there may be
continuation of treaty relations (e.g., the U.S.S.R., Czechoslovakia, the United Arab Republic).

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The United States Position. The official United States position before, during and
after the emergence of the Taliban was that Afghanistan constituted a State. 10
The United States never broke diplomatic relations with Afghanistan. On January
30,1997, the Department of State issued guidance for issuance of diplomatic visas to
Afghans, prefaced by the following statement: "While the United States maintains
diplomatic relations with the Islamic State of Afghanistan, the USG does not recognize
any central government in Afghanistan." In August 1997, the U.S. "suspended
operations" of the Afghan embassy in Washington. The U.S. did not, however. suspend
operations at the sole consulate of Afghanistan in the United States, in New York. The
consulate continued to have a consular officer accredited to the United States.
When the United States recently opened a Liaison Office in Kabul prior to the
existence of a recognized government, we viewed the opening of the Liaison Office as
the restaffing ofa continuing diplomatic mission to the country of Afghanistan. We also
took the position that the mission enjoyed the rights and privileges of a diplomatic
mission under the Vienna Convention on Diplomatic Relations, based on Afghanistan' s
continuing as a party to that multilateral treaty. This position had concrete practical
consequences, such as the continuing protection of the U.S. mission and personnel.

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Our practice consistently demonstrated a clear distinction between nonrecognition of the Taliban as a government and continuing recognition of Afghanistan as
a State. Even with respect to statutory certifications. for example, the United States
distinguished between statutes that required certifications as to "States" or "Countries"
and those that required certifications as to "Governments." Thus, for example, we
determined that Afghanistan was a major illicit drug producing and drug transit country
which had not cooperated fully with the United States with respectto efforts against
drugs. The Statement of Explanation provides, inter alia. that "In 1999 Afghanistan
cultivated a larger opium poppy crop and harvested more opium gum than any other
country ....." (Presidential Determination No. 2000-16 of February 29, 2000, 65 Federal
Register 15797-98, March 23, 2000.) On the other hand, we did not consider
Afghanistan to meet the criterion for the terrorism list that "the government of that
Country has repeatedly provided support for acts of international terrorism" because there
was no recognized government. (§60) of the Export Administration Act)
Our position with respect to the continuation of treaties is also a matter of record.
The U.S. Government publication Treaties in Force has continuously listed Afghanistan
as a party to all bilateral and multilateral treaties, including specifically the Geneva
Conventions. This is not mere inertia, as the publication does include notes where
changes in sovereignty and status have raised questions regarding treaty applicability. I I

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10 Indeed, the United States maintained a similar position during the period of Soviet occupation of
Afghanistan in the 1980s; notwithstanding Soviet control of Afghanistan and its government, the United
States continued to consider Afghanistan to be a State.
II See.for example, the note with respect to the Union of Soviet Socialist Republics, Treaties [n Force,
January 2000, at 297.

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As the above brief indication of U.S. official policy and practice indicates, the
recognition of governments and States poses complex questions with implications for a
very wide range oflegal and policy questions. They are deeply intertwined with the
conduct of foreign policy and even the day-to-day administration of international
relations, such as the issuance of visas. I::! As such, these questions are ones on which the
Department of State possesses a particular knowledge and expertise. The Department has
createdtherecordoftheU$;govemment'soffitiat relations with Afghanistan in recent
years. A determination that for some period of time Afghanistan ceased to exist would be
inconsistent with that record.
The International Position. The international community as a whole continued to
recognize Afghanistan as a State. Afghanistan never ceased to be a member of the
United Nations, for example, although membership is only open to States. Moreover,
Afghanistan continued to be actively represented at the United Nations. As the Draft
Opinion itself notes, "the overwhelming majority of States and the United Nations
recognized exiled President Burhanuddin Rabbani and his government as the country's
legal authorities." (Footnote 57, p. 22.) Such recognition necessarily of the government
of a country presumes the existence of the country itself.

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The UN Security Council has also jnqicatedJhat the Talibanand other parties to
the Afghan conflict were bound to comply with the Geneva Conventions. In UNSC
Resolution 1193 (1998), the Security Council reaffirmed that:
All parties to the conflict [in Afghanistan) are bound to comply with their
obligations under international humanitarian law and in particular the
Geneva Conventions of 12 August 1949 ...
UNSC Resolution 1214, also concerning the conflict in Afghanistan, uses
essentially the same language in a preambular clause. The parties referred to in these
instances are the Taliban and those forces fighting against the Taliban. These
Resolutions, in which the United States joined consensus, describe "obligations" to
adhere to the Geneva Conventions. The Security Council could not have issued a
resolution containing such a clause if it had not been convinced that there was a proper
legal basis to apply international law obligations to the parties to the conflict within
Afghanlstari. EVidently, the CouncIl- and the United States did not believe that
Afghanistan was a "failed State" where the Geneva Conventions had become
inapplicable. Nor does the ICRC. Their database, which reflects the authoritative
records of the Swiss Government as treaty depositary, lists Afghanistan as having
enjoyed uninterrupted status as a party to the Conventions since it first joined in 1956. 13

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·www.ICRC.ORG
12 There are other implications as well, not discussed here, such as the implications for Afghani citizens
who would·be "stateless" in the absence of their Stale.
13 www.icrc.org

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B. The Geneva Convention Has Been in Force at All Relevant Times
The Draft Opinion agrees that at present Afghanistan is a State with a recognized
government and addresses the question whether the Geneva Conventions are now in
force. It concludes at page 24 that "even if Afghanistan now has a recognized
government, it does not necessarily follow that its status as a party to the Conventions has
been completelyrestored:" There is, however, no basis for such a conclusion. Granting
that Afghanistan is a ~arty to the treaty today means that the treaty must henceforth
govern U.S. conduct.
Since Afghanistan never ceased to be a party, however, there is no question
whether Afghanistan's party status is now fully or partially "restored." More
fundamentally, there is no such concept of losing and "restoring" party status in treaty
law. Once a State ceases to be a party to a treaty, it cannot automatically resume party
status. Rather, it must join the treaty anew, typically by depositing an instrument of
ratification or accession. If Afghanistan ceased to be a State and therefore ceased to be a
party to treaties, it would not now be a party to any treaties whatsoever. That is to say, no
treaties would be in force and Afghanistan would have to join every treaty anew. This
would include, for example, the Non-Proliferation Treaty, the U.N. Charter, the
. g()Y~rTli!!g ins!ruITleI1ts()fJlt~_W<:)rJQ~~nkill1clQ.th~_rjIlt~ma.ti.Qr:ta.l.fi.na.m:i~J_il1stir:utiQDS,
arid all other treaties arid agreements that speci fy that all Parties must be States.

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The discussion of "restoration" in the Draft Opinion illustrates a significant
underlying analytic difficulty with the Draft Opinion, which is that the question whether
an entity is.a State.and.party.to a treaty, on the one hand, is consistently confused with the
very different and unrelated question whether it is able to perform relevant obligations.
The SuprerneCourt cases citeci in the Draft Opinion concern the latter, not the former
question. 15
We have no quarrel with, and indeed support, the view that the recognition of
States and governments, and the determination of whether a State can perform its treaty
obligations, are fundamentally and constitutionally Executive functions.!" However, it

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14 See, e.g., Vienna Convention on the Law of Treaties, Art. 26. Applying a treaty in force to the existing
situation, i.e., to POWs now in custody, is not the same as giving it retroactive effect. Anthony Aust,
Modem Treaty Law and Practice 142 (2000).
15 Clark v. Allen. 331 U.S. 503 (1947); Terlinden v. Ames, 184 U.S. 270 (1902); and the discussion in the
Draft Opinion on pages 16 and 24.
16 Although supporting a robust view of the President's constitutional authority, however, it must be noted
that the discussion of constitutional authority in the Draft Opinion a.t pp. 14-16 is somewhat overstated. It
is well established that the recognition of States and of governments is an Executive power. Nonetheless, it
lilcely that neither the Congress nor the Supreme Court would agree that the President has plenary power
over the interpretation oftreatie~ and of international law. We endorse the conclusion that "the question
whether a state is in a position to perform its treaty obligations is essentially a political question".
(Terlinden v. Ames, 184 U.S. 270, 288 (1902). Questions of termination, breach, interpretation, and
suspension, however, may implicate powers of Congress and the courts. Perkins v. Elg, 307 U.S. 327
(1939); Goldwater v. Carter, 444 U.S. 996 (1979) .

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remains true that the ability, inability, or even unwillingness of a State to perform
international treaty obligations is a question unrelated to the question of its status. There
are numerous instances of temporary or even prolonged inability or unwillingness to
fulfill treaty obligations by particular countries, including even the United States. The
ineffectiveness of the Taliban and their lack of respect for fundamental norms of
international behavior as well as international obligations have no bearing on whether
Afghanistan h~fontin.u:~d tobea_§t~t~~~t~ P_:ir~ttQth~G~ne\,~C()TlvemioT1s,

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As discussed also in connection with suspension, below, in the case of the Geneva
Conventions the ability of the Taliban to respect treaty obligations does not justify a
reciprocal suspension of compliance by the other party. Even if suspension were
permissible, moreover, it is too late to announce a suspension for the period ofTaliban
control. Suspension is not automatic, nor is it retroactive, but it rather requires formal
notification in advance. 18

o·

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e.

It follows that the Third Geneva Convention constitutes at present a treaty in force
between the United States and Afghanistan. The Draft Opinion argues that this treaty is
not now applicable, because Afghanistan was not a party "at the time of the conflict."!"
However, the normal rule is that treaties apply to the circumstances as they are at the time
the treaty is in force, in accordance with its terms. Once an extradition treaty is in force,
···forexample;-the-i:xtraditicnobli:gatioo:appliestoaIt-relevant-individuals.irrespective of
when the crime was committed or when they were taken into custody. Moreover, as a
factual matter-it cannot be argued that there is no armed conflict at present; not only is the
conflict still ongoing, but it is expected to continue for some time. Therefore, even under
the interpretation adopted by the Draft Opinion, the most one could say is that some
prisoners would be covered by the Convention and some would not, depending on
whether they were captured before or after the United States recognized the interim
government This-does-net appear to be a particularly useful or workable conclusion.

See. e.g., Draft Opinion at p. 2l.
infra.
.
19 Draft Opinion at p. 24.
17

18 See

•

•

•

II. The Application of the Geneva Conventions
The case is clear for applying the Third Geneva Convention (GPW) to the
Taliban, and presumptively according the Taliban members Prisoner of War (POW)
status and/or treatment consistent with the GPW, not only on the basis of the text and
negotiating history of the Convention but also on the basis of sound practice and policy.
This section concludes that the GPW applies because the situation as between the
United States and the Taliban is one of an armed conflict arising between two or more
High Contracting Parties under Article 2. It first reviews the special status of the GPW
under international law, the text of Article 2 and that recognition ofa government or
authority is not a prerequisite to application under Article 2. In this connection, ,":e
examine the Taliban's status as governing authority in Afghanistan, concluding that. even
on the terms identified by the Draft Opinion at pp. 18 - 19, the Tali ban had sufficient
indicia of "authority" for purposes of being bound by the Geneva Conventions. The
subsequent section shows that the GPW envisioned precisely a situation such as the
Taliban military, whose members "profess allegiance to a government or an authority not
recognized by the Detaining Power." GPW, Article 4(A)(3). It notes, however, that the
conclusion that the GPW applies to the Taliban category does not necessarily lead to the
result that all Taliban soldiers meet the requirements for POW status - they should enjoy
the protection of such status until special tribunals under Article 5 determine in individual
circumstances that particular persons do not meet the requirements for POW status.
Third, the section presents consistent U.S. practice in this area, with particular reference
to the provision of POW status to Viet Cong units during the Vietnam War, and to other
situations such as Haiti and Somalia.

A.

The Applicability of the GPW to Taliban Soldiers
1. The Special Character of the Geneva Conventions

The GPW, like all other Geneva Conventions on the Protection of Victims of
War, stands apart from other treaties in a number of respects. It was among the earliest
treaties to extend its protections directly to individuals, whether combatants or civilians.
The U.S. Senate Committee on Foreign Relations, when favorably reporting the
COnvenuons out to the Senate for adVice and consent to ratIficatIon, stated:
"Our Nation has everything to gain and nothing to lose by being a party to the
conventions now before the Senate, and by encouraging their most widespread
adoption.... The practices which they bind nations to follow impose no burden
upon us that we would not voluntarily assume in a future conflict without the
injunctions of formal treaty obligations." Geneva'Conventions for the Protection

ofWar Victims, Report ofthe Committee on Foreign Relations ofthe United
States Senate, 84th Congress, 1st Session, Executive Report No.9, July 27, 1955,

•

at 32.

12

•

The text of the GPW bears out the view that it applies in circumstances such as
those in Afghanistan -- indeed, even in situations of occupation by a foreign power where
the original governing authority has been displaced and no longer exercises governmental
functions. GPW, Article 2, paragraph 2.
Article I of the GPW, common to all four Geneva Conventions of 1949.
expresses the basic principle that it is to be applied broadly:
-- ---- -

---._--.,--,-... ,."".

- .._ - - - - - - - - - - - - .- - - - - - - - - - -- - ---- - -- - --------- --- --

"The High Contracting Parties undertake to respect and ensure respect for the
present Convention in all circumstances." GPW, Article 1.
The United States has embraced this principle, historically applying a liberal
interpretation of the GPW when assessing its application in a given conflict.i" TIle
respected JCRC commentaries on the 1949 Geneva Conventions emphasize that "Article
1 is no mere empty form of words but has been deliberately invested with imperative
force." Jean Pictet, Commentaries on the Geneva Conventions of 1949, Volume III. at 18
("Pictet"). Pictet notes specifically the special character of the Geneva Conventions
under international law:
"By undertaking this obligation [of Article I) at the very outset, the Contracting
pa,rtie~cir~waUenJiQntQJhefactthat it is not merely an engagement concluded on
a basis of reciprocity, binding each party to contract only in so far as the ather
party observes its obligations. It is rather a series of unilateral engagements
solemnly contracted before the world as represented by the other Contracting
Parties. Each State contracts obligations 'vis-a-vis' itself and at the same time
'vis-a-vis' the others. The motive of the Convention is so essential for the
maintenance of civilization itself that the need is felt for its assertion, as much out
.. _Qfr~~R~~t.fQ.Lit~mthe.part.oLlhe ..signatory.State.itself.as.in.. theexpectation of
such respect from all parties." Id. at 17-18.:!1

•

That said, Article 1 does not of itself provide for the application of the GPW in all
circumstances ofarmed conflict. Article 2 provides for the scope of application in what
is commonly referred to as international armed conflict. Rather, as described in the ICRC
Commentaries to Additional Protocol I to the Geneva Conventions, the phrase "in ~1I
circumstances" mainly "prohibits all Parties from invokin any reason not to res ect the
onvention as a woe, w et er the reason is of a legal or other nature." ICRC
Commentaries to Additional Protocol I, page 37, paragraph 48. 22
20 See,

e.g., Cumulative Digest ofU.S. Practice in International Law 1981 - 1988, pp. 3453-4.
law refers to this kind of obligation as erga omnes -- owing obligations to the community as a

21 Treaty

whole.
22 Article

•

I does, however, set the Geneva Conventions apart from the default rule of intemationallaw
under which certain countermeasures - or reciprocal noncompliance with certain provisions of an
agreement - may be taken. Fail~es of one party to an anned conflict to implement its obligations under
the GPW do not release the other party from its obligations under the GPW. See. e.g., Article 60(5) of the
Vienna Convention on the Law ofTreaties (excluding suspension as an option in the event of a material
breach of provisions relating to the protection of the human person contained in treaties of a humanitarian
character).

&

13

•

2. Article 2 of the GPW Applies
The Draft Opinion asserts that "Afghanistan was in a condition of statelessness
during the time of the conflict," and that therefore the "Taliban militia could not have
been considered a govenunent that was also a High Contracting Party to the Geneva
Conventions." Draft Opinion at 22. This paper has already demonstrated that there is no
concept offaile(fstatehoodutidettfe~ny1awandtIiar"fairea-stlites"remaln'parties,' liS a
matter of international law, to the agreements they have joined. Under Article 2 of the
GPW, it is also the case that the Taliban remained bound to uphold the obligations of
Afghanistan as a "High Contracting Party."
Article 2 of the GPW provides for its scope of ap~ication as follows:

•

!o:-

•.-F

"In addition to the provisions which shall be implemented in peace time,
the present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation
of the territory of a High Contracting Party, even if the said occupation meets
... WWJIlQJ!!Jn~d1'.~sislance,.,_ --.'" _._ ..__..
.- -..--...-.-..-..-..--.""
Although one of the Powers in conflict may not be a party to the present
Convention, the Powers who are parties thereto shall remain bound by it in their
mutual relations. They shall furthermore be bound by the Convention in relation
to the said Power, if the latter accepts and applies the provisions thereof." Article
2, GPW.

of

The first paragraph requiresthatJ.hearmed _con.(lict~'arisi~-v.·een-two or-more
the
High Contracting Parties" to the GPW. As demonstrated above, Afghanistan rem'ained a
High Contracting Party by virtue of accepted principles of international law, a fact that is
recognized by U.S., UN, International Committee of the Red Cross (ICRC) and other
organizations' statements and documents.r' That the ICRC, for instance, considered the
Taliban bound to uphold Afghanistan's obligations under the Geneva Conventions is

A basic factual and legal flaw appears in the Draft Opinion on this point. The Draft Opinion notes that
the TaJiban were recognized as the legitimate government of Afghanistan by only three states: Pakistan,
Saudi Arabia and the United Arab Emirates. Draft Opinion at 22. (The recognition was of the TaJiban
government. not the "militia" as so described by the Draft Opinion.) Yet at the same time, the Draft
Opinion. as noted, asserts that Afghanistan was "stateless." However. one might imagine a situation in
which one of those governments that had.recognized the Taliban became engaged in an armed conflict with
Afghanistan. Moreover. it is often the case that such governments would merely break diplomatic relations
and not withdraw their recognition from the other. In such a sitllatioO;'the GPW would continue to apply at
least as between such parties. But according to the logic of the Draft Opinion. Afghanistan would be a
High Contracting Party for the purposes of, e.g., Pakistan, but not for purposes of the United States. The
illogic of this conclusion would emerge sharply ifboth Pakistan and the United States were engaged in
armed conflict in Afghanistan.
2J

•

.

14

•

demonstrated by the formal JCRC note delivered to them in early October calling on
to meet several enumerated obligations. 2~

•

3. The Recognition of the Adversan° Is Not a Prerequisite to Application of
theGPW
The Draft Opinion relies upon the fact that the United States, as well as mOSL.
goVefilmeriIs;-aid-riofaccord the Taliban formal recognition as the government of
Afghanistan. However, the application ofthe Geneva Conventions does not depend upon
the mutual recognition ofthe parties -- either recognition of governments or statehood.
See generally Allan Rosas, The Legal Status ofPrisoners of War (1976), pp. 262 - 92
(hereinafter "Rosas"). The well-respected German military manual on the law of war
provides:
"It is irrelevant to the validity of international humanitarian law whether the
States and Governments involved in the conflict recognize each other as States
[citations to text omitted]." Fleck, ed., The Handbook ofHumanitarian Law in
Armed Conflicts (1995), para. 206 at 45. 25
The annotation to this provision notes the following:
----

•

--~--

._-~------"--'----"'-'."---_._-'---.'--

-- - - ----- -

"The applicability of the rules of international humanitarian law is not dependent
upon whether the parties to a conflict recognize one another. Throughout the
Arab-Israel conflict, the Arab states have not recognized Israel as a state [citation,
noting peace treaties with Egypt and Jordan, omitted], yet both sides in that
conflict have accepted the applicability of international humanitarian law. The
question ofwhether the parties to an armed conflict are states is objective and not
_.. a_mal/er~tahe"determinedb-y~subjecl-ive-recognitionpoficiesrJjwchparry .••..
C. Greenwood, id. at 45 {emphasis added)}6

24 While the United States does not have a copy of the note provided to the Taliban, the ICRC also
delivered such a note to the United States (as is their custom), at the same time informing us that they had
done so with the Taliban. See Note of the ICRC delivered to the U.S. Mission to UN and Other
Internarional Organizations in Geneva, 28 September 200 I.
.
2S Paragraph 2 of Article 2 provides further textual evidence that the GPW is intended to apply in situations
where thepatties do not recoFizl UJellgiRRlAe)' efer£ anOdiC! as govtiifiiientS Ofwhere oneof the parties
is not exercising territorial control or governmental authority. Paragraph 2 provides that the Convention
applies "to all cases of partial or total occupation of the territory of a High Contracting Party." Occupation
requires the displacement of one pany'sgoveming authority by the Occupying POwer - and often, in such
situations, the Occupying Power may not recognize the legitimacy of the authority it displaces. Indeed, in
the situation in the Middle East, Israel's position is that no legitimate authority preceded its occupation of
the West Bank -- and in consequence, although Israel argues that the Geneva Conventions do not apply as a
matter oflaw in the territories (a position we do not share), it administers the territories as if the
Conventions were in force. The Draft Opinion's insistence on recognition as a standard in determining the
applicability of the GPW is again shown to be misplaced in light of the textual requirement of application
in the cases ofoccupation.
•
.
26 See Rosas at 241,243. Rosas adds: "Thus, neither the Arab states nor the United States have asserted
that they would be freed from an obligation to apply humanitarian law in the Middle East and Vietnam
because they have not recognized Israel and the Democratic Republic of Vietnam respectively."
It 241.
•

n

_

16

British and other allies. The negotiators, however, "deliberately dropped the requirement
that such armed forces should be fighting in conjunction with a State recognized as a
regular belligerent." Id. at 64. The precise situation of the Free French was a motivating
historical example but it was not the sole standard by which Article 4(A)(3) is to be
assessed. 27

•

Pictet suggests several points for distinguishing the "regular armed forces" under
Article 4(A)(3 ).OriEfeatilre-ofsucfiTorces-is-''lliefacTiFiaflntheview oftheir adversary,
they are not operating or are no longer operating under the direct authority of a Party to
the conflict in accordance with Article 2 of the Convention." Pictet at 63 (emphasis
added). This is not to say that the state at issue is no longer a party to the Geneva
Conventions or that the armed forces are no longer associated with a party to the conflict,
but simply that the adversary does not recognize the authority to which the armed.forces
owe allegiance. Thus, U.S. non-recognition of the Taliban does not automatically
exclude the Taiiban soldiers from the scope and operation of the GPW.

•

Pictet makes two other points of direct relevance here: First, he suggests that
recognition of the government or authority referred to in Article 4(A)(3) would be
expected to come from third States, which would be "consistent with the spirit of the
provision". Id. In this situation, only three states accorded the Taliban formal
.~mJecogniti.on..hutPictetand other-souJ:CeS..dg-ttot-sugge-st-anumeriGal-minimafof1'urposeS····
of recognition. Moreover, the international community acted as if the Taliban controlled
Afghanistan and had a responsibility to adhere to Afghanistan's international obligations.
This form of "recognition" should satisfy the concern described by Pictet. Second, Pictet
notes that
"this authority, which is not recognized by the adversary, should either consider
·thatit-accepts
.... theobligationsstipulatedinthe Convention and wishes to apply them." Pictet at
...- - ....-"·--63...
~~itselfas..r.epr.esenting-on(}.of.the-·H.jgh--GentF-aeting-P-arties;·or·decIare

....

We have no information concerning any Taliban declarations concerning application of
the Convention. However, the Taliban did consider itself the representative government
of Afghanistan, as indicated by its attempts to gain broader recognition from the
international community (such as seeking the Afghanistan seat at the United Nations)
Rosas sums up the appropriate interpretation of Article 4(A)(3) and its
relationship to the application of the GPW in this way:

As Professor Levie explains, "[t]he 1949 Diplomatic Conference ~as attempting to supply a rule which
would cover situations which had caused.numerous problems during World War II with its many
'governments-in-exile' and, not infrequently, with competing such governments. . .. As such problems
multiplied. the ICRC addressed a.oote to all of the belligerent States ... : 'The International Committee are
of[the] opinion that the principles stated must be applied. irrespective of all juridical arguments as to the
recognition of belligerent status of the authority to whom the combatants concerned belong." Prisoners of
War in International Armed Conflicts, 59 International Law Studies at 59 (1977). This opinion "became the
basis ... for Article 4A(3) of the 1949 Convention." Id. at 60.
27

•

17

"What seems to be necessary, however, is that the authority can plausibly claim
to represent the party to the conflictfor the purposes ofoffering military
resistance to another state, [cite omitted], and that it displays an organization at
least resembling that ofa provisional government. [cite omitted] A certain
amount oforganization and discipline on the part of the authority also seems to be
implied in the reference in the provision to 'regular armed forces'. [cite omitted]
In practice, at least, it would seem that the authority must have been afforded
some kind of recognition (although not necessarilyformal recognition as a
government) by third states. [cite omitted] lfthe party which the government or
authority claims to represent is a High Contracting Party the Third Convention
also binds the authority in question." Rosas at 255 (emphasis added).

•

The rationale for Article 4(A)(3) was, as described by Pictet, to avoid a situation where a
party does not apply the GPW solely on political grounds, much as the Nazis did with
respect to the Free French forces in World War II. As a result, Article 4(A)(3) provides
for standards far less restrictive than one might identify for purposes of the formal
recognition of statehood or governments, and it provides clear textual support for the
application of the GPW in the situation of armed conflict between U.S. forces and
.
Taliban forces in Afghanistan.

. B.· .. -··'I'hel'aliban·Met-·the-Criteriat1tBe Considered an " Authority" or a
"Government" under Article 4(A)(3).

•

While recognition of the Taliban as the legitimate government of Afghanistan is,
and was, unnecessary for the operation of the GPW, one may still wish to consider
whether the Taliban could be said to be a "government or an authority" in any respect in
Afghanistan. As just noted, the criteria for claiming "authority" are somewhat less
restrictive than those that might-beapplieableto the recognition of states or governments
generally.. The Draft Opinion's criteria, however, are muchmore stringent than required
under the GPW. Nonetheless, we will look to the criteria of the Draft Opinion to
demonstrate that even under those overly strict criteria, the Taliban controlled the
territory of Afghanistan and exercised governmental functions in such a way as to be a
responsible authority under Article 4(A)(3).
While most of the world cornrriunity djd not recognize the legitimacy oftbe
Taliban, the United States, the United Nations and many other governments and
organizations treated the Taliban de facto as the prevailing authority in Afghanistan.
Take, for instance, the prosecution of Operation Enduring Freedom itself. The Pentagon
has treated the Taliban military, for purposes of the military campaign, as an opposing
military force in control of forces, equipment, territory and other resources. Senior
Pentagon officials referred to the "Taliban government.,,2~ When the U.S. Government
reported to the UN Security Council that it- had taken action in self-defense following the
September 11 attacks, it referred to the "Taliban regime.,,29

•

21 See.

e.g., Briefing by Secretary ofDefense Rumsfeld, September 25,2001.
Letter dated 7 October 200/ from the Permanent Representative ofthe United States ojAmerica to the
United Nations addressed to the President ojthe Security Council, UN Doc. S120011946, 7 October 2001.

29

18

•

UN Security Council resolutions (supported by the United States) reflect a similar
understanding ofthe de facto control and governance of Afghanistan by the Tali ban.
Security Council Resolution 1267 of October 15.1999. determined that the "failure of
Taliban authorities" to meet previous demands to hand over Usama bin Laden to
appropriate states "constitute[d] a threat to international peace and security." and acting
under the Chapteryn enforcemellt provisions of theUN <:l1arter, d~manded that the
Taliban carry out vanous"iasksthat"cC>ulcl.oI1ly be associated with control and
governance.i" Indeed, the Security Council indicated that the Taliban and other parties to
the Afghan conflict were bound to comply with the Geneva Conventions."
We are advised by the Department's regional and intelligence experts that the
Draft Opinion's portrayal of Afghanistan under Taliban rule is fundamentally inaccurate.
•

•

•

The Talibari's objective was to turn Afghanistan into an Islamic state based on their
particular interpretation of Islamic law. The Taliban staffed and operated those
institutions of government that comported with their pre-modem conception of what
a government ought to do. They had foreign justice and education ministries, and
ministry for the promotion of virtue and eradication of vice. The work of the
-ministri'es'was'coordinated-through:rCouhcil'ofMlfiistets:-ThroUgh -theseiristitl..ltions
"-the-Talibanauthorities'issuedlegislativedecrees on a wide variety of subjects, and
worked to enforce them through often draconian means.

•

The Taliban instituted and enforced a system of taxation based on the Islamic ushra
principle. They appointed or confirmed regional governors, district leaders, mayors,
and other regional and local officials.
.

•

The Taliban maintained a functioning system of Islamic courts to deal with criminal
cases and civil disputes in accordance with the principles of Islamic law as the
Taliban conceived them. While we may and do find much of the Taliban's criminal
law abhorrent, we have no basis on which to deny that it was in fact a system,

For example, Security Council Resolution 1333 of 19 December iooo demanded that the Taliban "cease
the provision of sancruary and training for internaticnal terrorists and their organizations, take appropriate
effective measures to ensure tbatJhe territory under its control is not used for terrorist installations and
camps," etc. SlRES/1333 (2000), para. I. The Security Council variously referred to the Taliban as
"authorities" and as a "faction," suggesting at least some recognition that the Taliban controlled
Afghanistan but remained involved in a civil war with other belligerents within its territory.
31 See above at Part I.A.2.
30

•

There is no question that the Taliban, although not recognized by the United States
and almost all other countries as the government of Afghanistan, did effectively
control 900/0 of Afghanistan's territory, and did exercise the functions ofa
government therein,even though they may have done so in a manner incompatible
with modem standards and sensibilities. The Talioan certainly thought of itself as the
government. Indeed, they may have brought about the most effective central control
--inAfghan-hi-story~-albeitat a terrible cost-to-Afghanistan arIdits-peopk.~--'~----""""--

19
however primitive by our standards, of law and procedure, and that generally
speaking those procedures were followed in practice.
•

The Taliban's initial success and popularity' among the people of Afghanistan was
precisely because the Taliban were able to impose law and order to the areas they
controlled. They disarmed much of the population. They suppressed the patchwork
of gangs and warlords that dominated the country following the Soviet withdrawal.
They largely put an end toroadside kidriappings, extortion, robbery, rape and other
crimes that had long plagued the Afghan people. And, when the international
community demanded it of them, in 2000-200 I they declared, and enforced with great
effectiveness, a ban on growing of opium poppies.

•

The Taliban also were capable of carrying out, and did in fact carry out, relations with
other countries and international organizations. Three countries (Pakistan, the UAE.
and Saudi Arabia) maintained diplomatic relations with the Taliban, and the Taliban
dealt on regular basis with special envoys, humanitarian personnel, and other UN
officials. Taliban representatives also met with State Department and other U.S.
Government officials.

•

•

The Taliban respected, and asserted effective control over, borders with Pakistan,
.. Iran, Tajikstan,Turkmenistan,UzbekistanandChina,maintaininga system of border
troops, passport controls, and the like.

It should be stressed that the United States' refusal to recognize the Taliban as the
government was not a conclusion that the Taliban was not in effective control of the great
part of Afghanistan territory.

Resting on four newspaper articles, the Draft Opinion argues that the Taliban's
relationship with Al Qaeda was of such closeness that "the Taliban cannot be regarded as
an independent actor." Draft Opinion at 22. We appreciate the suggestion that "other
non-public information ... may be available to the Executive," id. at 23. The Legal
Adviser's Office therefore consulted with our South Asia experts to determine whether
such an assertion could be regarded as factually accurate. The experts beljeye that the
relationship between the Taliban was not as the Draft Opinion describes it. Indeed, even
the Pentagon's description of the Taliban-AI Qaeda relationship suggested an
understanding of the distinction between the two. 32 The Taliban was not indistinguishable
from al Qaida. The Taliban effectively formed a national army. Taliban troops generally
fought skirmishes. Commanders often, though not always, led troops from their own
tribes. The central government had jurisdiction over all these troops, though it was

•

32 See. e.g.. Briefing by RADM Stufflebeem, October 17, 200 I ("Our strategy is to go after those elements
of military power. That was a TaJiban tank. It's in the Taliban military. The Taliban military is supporting
their leadership, and their leadership is supporting at Qaeda. So we are systematically pulling away at
those legs underneath the stool that the Taliban leadership counts OD to be able to exert their influence and
power.")

20

•

careful not to alienate local leaders. Other troops were led by individual commanders
who did not bring their own troops. Taliban troops did not include foreigners. Arabs,
Pakistanis, and others were kept separate from Taliban troops. In any case, the Taliban
vastly outnumbered the Arabs and non-Afghans, who may have
included 4000
soldiers to the Taliban's 45,000.

D.

GPW Article 4(A)(3): How the GPW Would ApplY to the TaJiban

1.

The Application of Article 4(A)(3) to the Taliban Soldiers as a
Categorv Entitled to POW Status

As described above, Article 4 of the GPW provides for several categories of
persons who would be entitled to the status of prisoner of war under the GPW. Under the
circumstances where the United States did not recognize the Taliban as the legitimate
government of Afghanistan, one would look to Article 4(A)(3) for its application. In
particular, we are led to the conclusion that the Taliban soldiers as a category were
"members of regular armed forces who profess allegiance to a government or an
authority not recognized by the Detaining Power." Article 4(A)(3), GPW.
We have already explained why the Taliban should be considered a "government

or an authority" for-purposes of Article 4(A)(3). The-TafibarrlTlititary-furces snbuldals6
be considered "regular armed forces" for purposes of 4(A)(3). As Rosas points out,

•

"regular armed forces" implies "[a] certain amount of organization and discipline."
Rosas at 255. Pictet is more explicit. saying that it was understood during the GPW
negotiations that such forces would "have all the material characteristics and all the
attributes of armed forces in the sense of sub-paragraph (I) [of Article 4(A)J: they wear
uniforms, they have an organized hierarchy and they know and respect the laws and
......._-ettstoms-ofwar:-!LPictet-~"AsQ resull Ihe-questitrtioecomesa-facfuar6fie J J
The Draft Opinion provides no basis for a contrary conclusion. For instance, it
merely states that the Department of Defense "advises us that the Talibans militia's
command structure probably did not meet the first of these requirements; that the
evidence strongly indicates that the requirement of a distinctive uniform was not met; and
that the requirement of conducting operations in accordance with the law and customs of
armed l,;oofljct was oot met" Draft Opicioc at 25 OepanmcAt Qf~tate el(flerts sl:l:ggest
that the Taliban command structure differed from the kinds of structure we might find in
our own armed forces, but we do not think the structure was such as to fall outside the
boundsof Article 4(A)(3). 34Similaily. our experts report thatTaliban soldiers did wear
uniforms and sought additional uniforms regularly, recognizing that resources were often

•

33 It is well understood in the law of war that the commission of violations of the law of war by one, some
or many members of an armed force do n9t thereby implicate the status of all of the members of such
armed forces. Moreover, the display of distinctive insignia and the command structure of the armed force
are also recognized in the same way - if some members do not meet these criteria, it does not prejudice the
status of all members of the force:
34 To say that this structure would fall outside Article 4(A)(3) would work to release less structured armed
forces from their Geneva Convention obligations - a result we surely want to avoid in a context where
asymetrical conflict is to be expected.

21
not available to purchase them. Moreover, the GPW requirement is not for a "distinctive
uniform" but for a "distinctive sign:' and our information indicates that the Taliban
soldiers did wear distinctive black turbans. GPW, Article 4(A)(2). In any event, the
available information does not enable us to reach a conclusion that such a requirement
was not met. Finally, we agree that Taliban forces likely committed serious violations of
the laws of armed conflict during the recent conflict, including the use of civilians to
shield military objectives from attack. However, the c0In.IEi~s(~~s>Lc}:irn~~_b.Y~Qm~ .
members ofthe-fOrce-is-iiot-surticleniio(femonstrate-ihatthe Taliban forces generally
may not be covered under Article 4(A)(3). Rather, the question in this respect is whether
the Taliban forces were unable to implement the laws ofwar. 35 Further, there is no
evidence to suggest that the Taliban provided central command level direction and
guidance for forces to violate the laws of war. If there is factual evidence to support
certain leaders providing instructions that would violate the laws of war or that the
violations were so widespread and systematic that military leaders knew or should have
known that the violations occurred, then appropriate action for violation ofcommand
responsibility can be taken against these commanders. 36

•

Outside experts also have examined the Taliban military and assessed its infantry
quality, armor, artillery, organization and other resources. One respected publication
assessed that the Taliban "displayed an innovative approach to warfare characterized by
.the.use.of.surprise, mobility,...speed,impressive logisties-seppert-and-arrefficientcommand, control, communications and intelligence (C31) network." Jane's World
Armies, 8 October 2001. Such an analysis runs counter to the unsupported assertions in
the Draft Opinion on the nature of the Taliban military and would rather support their
falling within the category of "regular armed forces" under Article 4(A)(3).

........._.

•
_____

2,
-

__

-

__

-

__

-

Review bv a Competent Tribunal in Cases of Doubt as to Whether a
Person-is-Eatitled to S~
--- -----.-------.-- ------.-- ..- .
-

-

-

-

-

__

-

- - - - - - - - , - - - _• •, - - - - _ .

0'

-----"-

_----_ ..

.-.__...__._----,_..,-----_.-_ ...,---_ ...

A conclusion that the Taliban forces fall within the bounds of Article 4(A)(3}·as----·
"regular armed forces" does not mean that all Taliban soldiers would be entitled to POW
status. Article 5 of the GPW provides:
"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 categoriei:
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." ArticleS; OPW.
Under Article 5, the detaining authorities would be well within their authority, for
example, to review for status determination any Taliban member about whom there is
For instance, one reason among many that the Al Qaeda forces may not be entitled to POW status is that
their operations are designed to violate the laws of war - most particularly, to target and attack civilian
populations as such, civilians and civilian properly. It is this kind of systematic violation which excludes
organized forces from Article 4(A)(3).
36 See, e.g., Application ofYamashita, 327 U.S. I (1946).
35

•

.'

,

22

•

doubt as to his status. Indeed. consistent U.S. practice has been to set up tribunals in such
situations.
A fairly recent example of the operation of Articles 4 and 5 of the GPW may be
found in the Gulf War. During Operation Desert Storm in 1991. U.S. armed forces
handled the detaining, interning, and transferring of 86,000 Iraqi detainees. Due to
supply shortages, most of the camps were not complete when the first Iraqi POWs were
captured; The fouri35:-carnpswere-built-withchain linkferrcmgrcorrcertinawtre.tents.
guard towers, wash basins, latrines, generators, and water bladders. Article 5 hearings
were conducted to determine the status of the detainees. At the end of the US custody of
the Iraqi POWs, ICRC officials indicated that the treatment of the POWs by the U.S.
forces was "the best compliance with the GPW in any conflict in history." (Conduct of
the Persian Gulf War Final Report to Congress, Appendix L, 1992).
D. Common Article 3

Although our conclusion is that Article 2 applies and disposes of the question of
Article 3 's application to the Taliban, we think it is nonetheless essential to point out
why the Draft Opinion's arguments on the non-applicability of Common Article 3 are
inaccurate.
.. -

•

__

--_ .._._-.-

_-_ -

.-'.--.

--_._---_._

_._--_.~._.~_.-_

..-.,_

-_.~

.

Common Article 3 picks up where Common Article 2 leaves off -- that is, with
armed conflicts not of an international character. Such conflicts are almost always. and
typically so, internal armed conflicts. or civil wars. And indeed, the negotiators of the
Geneva Conventions had internal conflicts in mind. Nonetheless, the negotiators did not
choose the most available formulations, such as "internal armed conflicts" or "armed
conflicts arising solely in the territory of one party." Their formulation indicates a
readiness to ensure that all armed conflicts that were not internation~ffi'_e.e..nliigh._
.. c:()Il~C;~iIlK:P~~~""<:l~c:iJ:)c::.~Q.Yc::r~c:i:_.Ih&~<:lm~il1.ati().IlQfM!t:J~~~_@!lQ3wa,sintended
to cover all armed conflicts. This is evident also from the subsequent negotiation of
Article 1(2) of Additional Protocol II which provides:
This Protocol shall not apply to situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence and acts of a similar nature, as
not being armed conflicts. (Emphasis added.)
It would be extremely difficult to defend a U.S. position premised on the notion that the
conflictin Afghanistan is not an armed conflict .of any sort as· contemplated-under-the
Geneva Conventions.

E. U.S. Practice under the GPW

•

The United States has consistently applied the GPW to armed conflicts. DoD
Directive 2310.1 (August 1-8, 1994) provides that "The U.S. Military Services shall
comply with the principles, spirit, and intent of the intemationallaw of war, both
customary and codified, to include the Geneva Conventions." Indeed, we are aware of

•

23

•

no instance in which the United States has denied the applicability of the Geneva
Conventions to either U.S. or opposing forces engaged in armed conflict. We have
applied the Geneva Conventions whether we were defending a friendly State against a
hostile aggressor (e.g., Vietnam, Kuwait), seeking to restore a legitimate government
(e.g., Grenada, Panama, Haiti), or restoring order to a country without a government (e.g.,
Somalia).

• DiiringilieKoreanconfllct,evenbefore iheU1'lited States and other major
states had ratified the Geneva Conventions, General MacArthur, the
United Nations Commander in Korea, said that the UN forces would
comply with the principles of the Geneva Conventions.
•

During the Vietnam conflict, the United States applied the GPW to
detainees until their final status was determined. Detainees were classified
as paws (i.e., given POW status) when determined to be qualified under
one of several categories. These categories included Viet Cong Main
Force and Local Force personnel, North Vietnamese Army personnel and
certain irregulars engaged in belligerent acts (e.g., Guerillas, Self-Defense
Forces and Secret Self-Defense Forces). HQ, Military Assistance
Command, Vietnam, Directive Number 381-46, Annex A, December 27,
temationaH:;aw;-pp:-766-768, Howard
196
Levie, Documents on Prisoners of War, pp. 748-751 (1979). The U.S.
took this step even though North Vietnam rejected the U.S. contention that
captured U.S. airmen should be treated as paws under the GPW on the
basis that there had been no declaration of war by either nation.

•

•

During the 1983 U.S. military operation in Grenada to protect American

---_.----.------------~------__Giti_uns,4"eres£a-H-further
chaos;--arnt'a:ssisrirrthe-resr6ratfon"ofdemOcrafic

--------------------------institutions, the U.S.--miHtary--detained nrernbersof'theGrerradanPeople' S
-- .- --, ---..--. _. -Revolutionary Army and Cuban nationals" who had been sent to the island
to support the pro-Marxist regime. The detainees were screened, and
those meeting the criteria of the Convention were accorded POW status in
accordance with the GPW. The JCRC praised the U.S. efforts; Cuban
government attempts to exploit the POW issue were unsuccessful due to
"strict compliance wjth the Geneya COtiVetitioAi by the UniteS States".
Army TJAG Memorandum for the Vice Chief of Staff of the Army, Nov.
4, 19~3,~~~_te~i~ !_~_~I ~ 198~ c:umulative?i~~stofthe United States
-PractIce 10 InternatIonal Law, pp. 3452-34)6.
•

37 See

•

During the 1989 Operation Just Cause in Panama, the United States
provided members of the Panamanian Defense Forces, who were
supporting the illegitimate government of Manuel Noriega, with the

generally The Grenada Papers: The Inside Story ofthe Grenadian Revolution and the Malcing ofa
Totalitarian Slate-as told in Captured Documents (Seabury and McDougall eds, 1984); Mark Adkin•
Urgent Fury: The Battle for Grenada (1989) and Hugh O'Shaughnessy. Grenada: Revolution. Invasion and
Aftermath (l984).

,

n

_

24

protections normally accorded to POWs until their final release and
repatriation, even ifthey might not have been entitled to such protections
under Article 4 of the GPW. In a letter to the Attorney General, the State
Department's Legal Adviser indicated that "the United States policy to
construe the Article 2 of the Geneva Convention III was based on our
strong desire to promote respect for the laws of armed conflict and to
secure maximum legal protection for captured members of the U.S. armed
f6tces: n TIie G eriefal C6iliisel for the Department .of Defense cone urred
with the Legal Adviser's views. January 11, 1990 letter from State
Department Legal Adviser to the Attorney Generalr"

•
•

•

During the 1992 crisis in Somalia, U.S. armed forces and other countries
participated in a humanitarian assistance operation to relieve the suffering
of the Somalia people arising from hostilities between warring factions. A
1993 report to Congress noted that in mid-1992 humanitarian conditions
were horrendous, warlords were fighting for control of the country, food
supplies were used as a weapon of war, and a large number of Somalis had
either died or were at risk of starvation. Despite these chaotic conditions,
the United States determined that "the common Article 3 principles [of the
Geneva Conventions] continue to apply to the situation in Somalia.
Adherence to these principles is consistent with accomplishment-ef-the ...
humanitarian mission and defense of U.S.lIn ternationaI forces as may be
necessary." (92 STATE 41351. cleared by JCS/OSD)

•

In 1994, United States airmen flew missions over Bosnia in support of
UNPROFOR. "The Administration ... reviewed the issue of the status of
members of the US Armed Forces who may be captured in connection
.~_~~ __ ._.wi.th..aij:-Strik~·Bosm~'J:he-GGfH#et..ifHfl.e-former Yugoslavia has been
........generally.regar.ded-an-intem3tional-armed c-on-fli<lt,-and it-is thus the....
position of all relevant General Counsel (including State, DOD, JCS and
DOJ) that such individuals would be entitled to prisoner of war status."
(94 STATE 044536).

. .....~. _.

•

__

In 1994, the U.S. Armed Forces carried out a military operation in Haiti
under the authority of United Nations Security Copncil ResolutioQ 940
This authorized all necessary means to facilitate the departure from Haiti
of the military leadership. the prompt return of the legitimately elected

~~------_. ._-----f>resident-anl1Lh-ere~LorartonOflllelegItlrriate·aullio-fitlesofllle

m

-

u n

m

•••••

••• " •••

_····m ..

Govenunent of Haiti. In the Resolution, the UNSC expressed its concern
for the "significant deterioration of the humanitarian situation in Haiti, in
particular the continuing escalation by the illegal de facto regime of
systematic violations of civil liberties, the desperate plight of Haitian

•

)I See generally Malcolm McCo"nnell: Just Cause: The Real Story ofAmerica's High-Tech Invasion of
Panama (1991); Kevin Buckley, Panama: The Whole Story (1991); Thomal Donnelly et al, Operation Just
Cause: The Storming ofPanama (1991); and Ivan Musicant, The Banana Wan: A History ofUnited States
Military Intervention in Latin America from the Spanish-American War to the Invasion ofPanama (1990).

,

25

refugees and the recent expulsion of the staff of the International Civi han
Mission (MICIVIH)... :' The U.s. Government reiterated in a diplomatic
note to the ICRC, that "as is well known to the ICRC, the United States is
a strong supporter of the 1949 Geneva Convention(s) ... and customary
international law dealing with armed conflict, and in particular those
provisions on the protection of prisoners of war and civilians." The note
continued that, in the event of hostilities, "the United States \\;11. upon

•

engagementbfrorces; applyallofthe provisions of the Geneva
Conventions and the customary international law dealing with armed
conflict." Regarding the transfer of paws, the cable concluded that
"captured members of the Haitian military will be initially detained by the
U.S. Article 12 of the Third (POW) Geneva Convention of 1949
authorizes the U.S. to transfer any paws to Haitian authorities once the
requirements of the convention have been met." (94 STATE 252718,
cleared by JCS/OSDiDOJ.)
•

•

More recently, the United States applied the GPW during the conflict with
Yugoslavia (FRY) in 1999. The Kosovo Liberation Army captured a
Yugoslav Army Officer in April 1999 and turned him over to the
Government of Albania. When Albania surrendered him to the United
States, we acknowledged his stanIs as a POW-..--As-such,-he-wasgiven
treatment in accordance with the GPW. This was consistent with our
position pertaining to the three U.S. soldiers detained by the FRY. In the
latter case, it did not matter that the U.S. soldiers were captured in
Macedonia; they still had POW status and were entitled to the protections
of the GPW.

_. III. Suspension.oLorDeviation_fromCeoeva.Conventioo Obligations

A.

Suspension of Geneva Convention Obligations

The Draft Opinion suggests at p. 28 that, even if Afghanistan has continued to be
a party to the Geneva Conventions. "the President could still regard [them] as temporarily
suspended during the current military action."

1here are a number ofdlfficu1tles with this analysis.

•

Under the law of the United States, the right of the President to suspend a treatyis-------------------viewed as a subsidiary right of his power to terminate treaties. While most treaties to
which the United States is a party can be terminated or suspended by the United States,
there are some limitations in treaties or in general principles of treaty law that constrain
that power. Most treaties do not address the question of suspension. With respect to such
treaties, the residual rules in the Vienna Convention, which are generally recognized as
reflecting the operative rules of customary international law, would apply to the extent
that they are not inconsistent with the provisions of the particular treaty..

•

26

The Draft Opinion recognizes that the relevant customary international law rule is
embodied in Article 60 of the Vienna Convention on the Law of Treaties, which reads as
follows in relevant part:

•

Termination or suspension of the operation of a treat'\' as a consequence of its
breach
2. A material breach of a multilateral treaty by one of the parties entitles
(b) a party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in the relations between
itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground
for suspending the operation of the treaty in whole or in part with respectro itself
if the treaty is of such a character that a material breach of its provisions by one
party radically changes the position of every party with respect to the further
performance of its obligations under the treaty.

3. A material breach of a treaty, for the purpose of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplislunent of the object or
pUIPose of the treaty.
5.' Paragraphs 1 to 3 do not apply to provisions relating to the protection of
the human person contained in treaties of a humanitarian character, in particular
to provisions prohibiting any form of reprisals against persons protected by.such
treaties. "

•

.,,~."

.."_ ... ._.__.__..QIJ~j;ljffi£YllY_Yii.thJh.e..Draft-QpiniQn~.s..analysis-is.thatthe.Pr-esident-didnot- in______________J~!_~I!SJ?~~_<!!hc:.J::::QI!'1_entt9JJs.JIDd_c_annQtnow_dosorerroactively.Suspensionis-not
automatic. When a party fails to fulfill its obligations, the other party mayor may not
choose to suspend its own reciprocal performancer" In U.S. practice, suspension is
exceedingly rare. The Vienna Convention on the Law of Treaties provides that a .rcarty
must give written notice of the intention to suspend treaty obligations in advance. 0 The
suspension is effective only during the period of suspension, and not retroactively."
Aiiother difficulty IS the question whether the grounds for suspension in fact exist
in this case. It is not clear from the Draft Opinion what Afghanistan's alleged breach is
___orhow.andwhen-the-United-States-was-speei-fieally affected--by--it:Yetboth---subparagraphs of Article 60(2) use the concept of entitlement to "invoke" the breach as a
ground for suspending the treaty. It is also not clear that the United States has invoked
the breach at the time it occurred.

•

Charlton v. Kelly, 229 U.S. 447 (1913).
Articles 65 and 67.
41 Article 72.
39
40

,

27

•

A third difficulty is the rule embodied in paragraph 5. That provides that
provisions relating to the protection of the human person in a treaty of a "humanitarian
character" cannot be suspended. The negotiating history of the Vienna Convention
establishes that this rule was specifically intended to apply to the Geneva Conventions."
As noted in the most recent comprehensive discussion of treaty law and practice, the
obligations of the Geneva Convention with respect to protection of persons are not based
on reciprocity, and therefore lack of reciprocity is not considered as a ground for
suspension:
Article 60(5) makes it clear that Article 60(1)-(3) does not apply to breach of
provisions in treaties relating to the protection of the human person ... Although
it was the Geneva Conventions of 1949 which were in mind the paragraph would
equally apply to other conventions of a humanitarian character ... since they
create rights intended to protect individuals irrespective ofthe conduct ofthe
. to eac h ot h er. ,.-13
parties

•

This conclusion is reinforced by the terms of the Geneva Conventions themselves,
which indicate that the obligations may not be terminated - and, derivatively, not
suspended - during the course of a conflict. Article 142 of the GPW, which is a
provision common to the four Conventions, provides for denunciation. However, "a
denunciation of which notification has been made at a time moen toe denouncing Power
is involved in a conflict shall not take effect until peace has been concluded, and until
after operations connected with release and repatriation of the persons protected by the
present Convention have been terminated."
Treaties to which the United States is a party are the law of the land. To the
extent that they contain provisions limiting termination in certain circumstances, it may
well.be.that the..intention.of.the.parties was also to limitsuspension·and that in those
..circumstanc.es.the.P.residentisnotfree.10-suspend...While.the-··Draft·Opinioninvokes the
maxim of expressio unius est exclusio alterius....a canon of construction for domestic
legislation, there is a different maxim applicable to treaties: ut res magis va/eat quam
pereat ("that the thing may rather have effect than be destroyed"). In Techt v. Hughes,
229 N.Y. 222, 240-244 (920) Judge Cardozo observed that there was general agreement
that parties concluding treaties which regulate the conduct of hostilities intend them to
continue during the conduct of hosrilities."

..- '-' ._ _

~....."..,..,..,.,....,..-,-,-,.,..-,====~

•

----..__.----_.._ - .

Except for paragraph 5 of Article 60, the text of the breach article had been generally agreed long before
the Vienna Conference. At the Conference, the Government of Switzerland made the proposal that is
embodied in paragraph 5. As pointed out in A. Aust, The Modem Law of Treaties, p. 238, it was the
Geneva Conventions of 1949 that the Conference had in mind when adopting the Swiss amendment.
43 Anthony Aust, Modem Treaty Law and Practice, at 238 (2000)(eniphasis supplied).
44 The necessity for continuity of international law protections during the course of hostilities is reflected in
other treaties as well. The Vienna Convention on Diplomatic Relations, which is in force between
Afghanistan and the United States, provides in article 44 that the receiving State must, even in case of
armed conflict, grant facilities in order to enable persons enjoying privileges and immunities to leave at the
earliest possible moment. Article 45 provides that even in cases of armed conflict, the receiving state must
respect and protect the presence of the mission, together with its property and archives.
42

,

28

•

•
___

B. Deviation from the Stdct Terms of the Treat" Regime
The Draft Opinion refers to a number of instances where a strict reading of United
States practice has deviated from a strict reading of the requirements of the Geneva
Conventions. These instances demonstrate that it is unnecessary either to determine that
the United States' obligations under the Geneva Conventions are inapplicable or to
comply literally with every provision without any deviation. Anticipating that
compliance may be difficult or even impossible, it may be argued that a determination of
inapplicability is to be preferred to less than perfect compliance. The continuing
applicability of the GPW with respect to the treatment ofTaliban detainees does not,
however, mean that any failure to conform to every word in the Convention will be
considered a breach of the party's treaty obligations. We will not address specific
examples of the application of the GPW in concrete situations in this memo. The White
House Counsel, the NSC Legal Adviser, the DOD General Counsel and the Legal
Counsel to the Chairman of the Joint Staff are aware that we are prepared to consult with
them on such questions as they arise.
As a general matter, we would note that practice under the Geneva Conventions
demonstrates that compliance with such treaties as a factual matter is not always "to the
T." In most cases, compliance with treaties is a matter of practical application - e.g.,
examining the ordinary meaning to be given the treaty terms, agreements among the
parties as to the terms' meaning any subsequent practice of the parties in applying the
treaty and any other relevant rules of intemational law." However precise a text appears
to be, the way in which it isaetuallyapplied by the partiesihdicates whatthey understand
it to mean, provided the practice is consistent and is common to, or accepted by, all
_.. _parties.:~. . Jn.some.cases."..it..~-.even..be.~a~i&read'1tft-impHe(HemT"into·'l'·tremy:
m_.~?_.EYen_whereJhe1reatY_ term, as interpreted, is violated. Article 60 of the Vienna
Convention on the Law of Treaties only provides remedies (i.e., termination or ----.,suspension) in the event ofa "material breach" of the treaty..as

m

••

'"

."'"

_'m - - - - " ' - - _ . - - -

In this connection, the Draft Opinion's discussion of two occasions since 1949 -the Korean War and the Persian Gulf War -- where U.S. practice "has deviated from the
4S

46

Vienna Convention on the Law of Treaties, Art. 31.
See. e.g.. Anthony Aust, The Modern Law of Treaties 194 (2000) (citing U.S.-France Air Service

.Arhitrationl962(S4-ILR-30J),--···-- .... ...--

•

47 Vienna Convention on the Law of Treaties, Art. 31. One may take as an example the application of the
Geneva Conventions by the United Kingdom during the Falklands/Malvinas War. At the end of that
conflict in 1982, with winter approaching 13.000 Argentine soldiers surrendered to UK forces. The tent
shelters Britain had sent by ship were lost in its sinking. GPW article 22( I) expressly prohibits
"internment" ofPOWs other than in premises on land. Accordingly; as a matter of necessity they were
detained on UK merchant ships used to repatriate them to Argentina before the cessation of active
hostilities. See Martin Middlebrook, Task Force: The Falklands War (1982). at 247,3&1,385 (rev. ed.
1987). The ICRC viewed this practical solution favorably. See Sylvie-Stoyanka Junod. Protection ofthe
Victims ofArmed Conflict: Falkland-Malvinas Islands (1982); International Humanitarian Law and
Humanitarian Action. at 31 (ICRC, 1984)
41 See, e.g.,_Aust, supra. at 238-239, 300 (2000).

,

29

•

clear requirements of Article 118" of the GPW to repatriate POWs immediately upon the
cessation of active hostilities is unsound. Draft Opinion at 30. The Draft Opinion noted
further that POWs may "in no circumstances renounce in part or in entirety the rights
49
secured to them" by the GPW. Article 7, GPW. In fact, however, the negotiations of
the GPW indicate that the customary law and practice of granting asylum to POWs (i.e.,
allowing them to renounce their right to immediate repatriation) was intended to be
preservedbytheG~\V.50 See.~.g. Geneva Conventions for the Protection of War
Victims. Report o/the Committee on Foreign Relations ofthe United States Senate, 84th
Congress, 1st Session, Executive Report No.9, July 27, 1955, at 23-24 (noting the view
of the Executive Branch and the Committee that "nothing in the Geneva Conventions of
1949 ... will compel the United States forcibly to repatriate prisoners of war who fear
political persecution, personal injury, or death should they return to their homeland"). As
a result, the non-repatriation of certain prisoners was not considered as a breach ofa
treaty by State Parties, notwithstanding the language of the GPW.
In addition, the GPW, like the other Geneva Conventions, distinguishes between
"grave breaches" of the Convention to which individual criminal responsibility attaches
and other violations of the GPW. Grave breaches consist of:

•

"[a ]ny of the following acts, if committed against persons or property protected
by the Conzention: wilful killing, tortur:e or inhwnan treatment, ineluding
biological experiments, wilfully causing great suffering or serious bodily injury to
body or health, compelling a prisoner of war to serve in the forces of the hostile
Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial
prescribed in this Convention." GPW, Article 130.
The United States is bound to respect all of the provisions of the Convention. As
.....".amatteI:-.o£.pr.aeti.ce,..bow.ev.ef, States dG-flOt.always---s&-eemply-and;"1rlthough·_···················
responsibility attaches, the consequences for SUGlHloncomplianee are typieally-qeestions
associated with relations with our allies and public opinion. During the Gulf War, for
instance, the United States did not set up specific Prisoner of War camps as required by
the GPW, instead setting up "holding camps" from which detainees were transferred to
the Saudis (under an agreement concluded in accordance with the GPW, article 12). As a
result, the United States did not comply with its obligations on particular issues
associated with the running ofa POW camp. which it was ar~ab!y required to establish
In the end, the United States did not face substantial criticism for this course of action -and has not faced such criticism for similar conduct in Haiti, Panama and Grenada.

As Pictet notes, the inalienable right to be repatriated was "based upon the general assumption that for
the prisoner, repatriation constitutes a return to a nonnal situation and that, in almost every case, it is his
•
own wish to be repatriated." Pictet Commentary on art. 118.
so The asylum concept was based in part upon the desire to avoid the recurrence ofgross human rights
violations and extrajudicial killings like those that occurred following WWII and the Korean War. See
Pictet, at 512, 543-48; see also Howard S. Levie, International Law Aspects ofRepatriation ofPrisoners of
War During Hostilities: A. Reply, 67 AmI. Int'l Law 694 (1973) (citing negotiations and UNGA
resolutions, but rejecting the notion that "a norm of international law has evolved which prohibits the
involuntary repatriation of prisoners under any circumstances").
49

•

30

Policymakers should be aware of two separate issues in particular:

e

e

•

First, criminal responsibility attaches to the commission of grave breaches of the
Convention, including by operation of fundamental principles of command
responsibility. If a court or other U.S. body were to find that the GPW does apply,
and that U.S. treatment of such persons fell below such standards as to be considered
grave breaches, persons responsible may be held accountable." No international
criminal responsibility attaches, however, to other violations of the Convention. Such
violations are on a par with a failure to observe any other international obligation.

•

Second, the Geneva Conventions do not contain mandatory dispute settlement
mechanisms such that another State could bring a claim against us under it. It is
possible, even likely, that a decision not to apply the Geneva Convention would lead
to such actions as a request for an advisory opinion from the International Court of
Justice, proceedings in regional human rights forums, and other forms of extreme
international and public opprobrium. Differing questions of interpretation and
application of the Convention, on the other hand, are more typically matters of
discussion among States, rarely rising to the level of formalized dispute.

If, as we believe, the GPW does apply, it is our assessment that international and
domestic opinion UJould not look to each detail of the GPW to detennine "'hethel we ale
in compliance, but would rather look to fundamental compliance overall and to the nature
and quality of alleged deviations before expressing a negative view. It is in this respect
that careful attention to the grave breach provisions are particularly important, for as long
as we can apply the other provisions -- we believe that public and international opinion
will serve not to embarrass the United Statesbutto bolster opinion on the conduct of the
current war against terrorism. Even if the GPW did not apply at all, moreover,
.·internationalopinion-woulti-Iikelylook-to-internattonalnumanrights norms, which in
significant respects are more onerous, tojudge-eur aetiens. .As a general rule, it is
.- preferable thartheGPW standards apply in cases of hostilities, since these rules are
designed for such situations. 52

51 Note further that under GPW Article 131 "[n]o High Contracting Party shall be allowed to absolve itself
or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party
in respect of' grave breaches.

e·

51 See,for example, the U.S. submissions in the Grenada Case before the Inter-American
Commission, in which the United States took the position that in cases covered by international
humanitarian law, international human rights standards did not apply.

31
IV. CustomarY International Law

•

•

The Draft Opinion states at page 34 that "any customary international law of
armed conflict in no way binds, as a legal matter, the President or the U.S. Armed Forces
concerning the detention or trial of members of Al Qaeda and the Taliban." It states at
page 38 that "[ajs non-federal law, ... customary international law cannot bind the
President or the executive branch, in any legally meaningful way, in its conduct of the
war in Afghanistan." Infact,hOwevef, cUStOIIlarY international law creates obligations
binding on the United States under international law and potentially under domestic law.
Were the President, as contemplated by the Draft Opinion, to act lawfully under federal
law in a marmer that would be inconsistent with the obligations of the United States
under customary international law, that action would, notwithstanding its lawfulness
under U.S domestic law, constitute a breach of an international legal obligation of.the
United States. That breach would subject the United States to adverse international
consequences in political and legal fora and potentially in the domestic courts of foreign
countries.
It is well-established that customary international law creates obligations on
States. The International Court ofJustice has recognized this principle on many
occasions. See, e.g., Barcelona Traction. Light and Power Company. Limited, Second
Phase,lC.J. Reports 1970, p. 3, at p 46, para 86 ("breach oran intemationallegal
obligation arising out of a treaty or a general rule of law"). Article 38 of the Statute of
the Court, to which the United States is a party, states that the Court shall apply
"international custom, as evidence of a general practice accepted as law" in deciding
cases before it.

The United States has long accepted that customary international law imposes
____~_._._u~i!!g!!1&..oqligatiQIllL~ matl:er of intemarional.Jaw.cla-dcraestie-as well es-ineernetionai-:
fora, ""e.often.iIlv()J(ecllstQrnaz:yintemational.. law..in.aniculating.then-gilts-and
obligations of States, including the United States.. We frequently appeal-to customary-international law in the following areas, among others:

•

Law of War : the United States has frequently addressed the binding character of
customary international law in this context. The Department of the Anny Field
Manual on the Law of Land Warfare, FM 27-10 Jul 1956
vi
as 0 ows: orce 0 ustomary Law. The unwritten or customary law of war is
binding upon all nations. It will be strictly observed by United States forces, subject
...__ -----O~uch-ex-eepti-ens--as shall ha'y'e been diIectediJyc-omperefirautnotilyoy"ia)'of
legitimate reprisals for illegal conduct of the enemy (see par. 497). The customary
law of war is part ofthe law of the United States and, insofar as it is not inconsistent
with any treaty to which this country is a party or with a controlling executive or
legislative act, is binding upon the United States, citizens of the United States, and
other persons serving this country." See also Department ofDefense Directive
Nwnber 5100.77 (December 9, 1998) para 3.1 ("The law of war encompasses all
international law for the conduct of hostilities binding on the United States or its

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individual citizens, including treaties and international agreements to which the
United States is a party, and applicable customary international law. ")

•

•

With respect to Additional Protocol r of 1977 to the 1949 Geneva Conventions, which
the United States has not ratified, U.S. officials have taken the position that "the
United States will consider itselflegally bound by the rules contained in Protocol I
only to the extent that they reflect customary international law. either now or as it
rnaydevelopirifhefuture." Remarksof'Michae! 1. Matheson, Deputy Legal Adviser,
U.S. Department of State, The United States Position on the Relation ofCustomary

International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions,
2 Am. U.J. In1'l L. & Pol'y 419,420 (1987).
•

We have taken consistent positions with regard to customary international law in U.S.
courts. In its Statement of Interest before the U.S. Court of Appeals for the Second
Circuit in Kadic v. Karadzic, (No. 94-9069) at p. 5, for example, the United States
argued (and the Court of Appeals ultimately agreed) that "[cjustornary international
law does not bind exclusively state actors.. ,. [Ajcts committed by non-state actors
may indeed violate international law." The United States noted that:

•

•

(a)

among the alleged violations at issue in this civil suit were genocide,
war crimes, and crimes against humanity in violation ofetlstomarj
, international law;

(b)

the United States had "officially asserted" to the International
Criminal Tribunal for the Former Yugoslavia that "proscription of
these crimes has long since acquired the status ofcustornary
international law, binding on all states, and such crimes have already
been the-sabjeet-efintemetienal prosecutions by the Nuremberg and
Tokyo Tribunals" (quoting the Submission of the Government of the
United States to the International Criminal Tribunal for the Former
Yugoslavia in respect of the Tadic case);

•

In November 1986, Herbert Okun, Deputy Permanent Representative of the
United States to the United Nations, stated in a speech to the General Assembly
ofthe United Nations that: "We are all aware of the nllmber and scope of
violations of international humanitarian law being carried out in Afghanistan by
the Soviet Union or its puppets. These include, but by no means are limited to:
The 1949 GenevaConverrtionsand customary international law designed to
protect civilians." Department of State Bulletin, January 1987, p. 84.

•

It should also be noted that under Section 4 of the President's Military Order, any
individual subject to that order may be tried by military commission "for any and
all offenses triable by military commission." Military commissions have
jurisdiction to try individuals for offenses against the law of nations "of which
the law of war is a part," Application ofYamashita, 327 U.S. 1, 7 (1946), accord.
Ex part Quirin, 317 U.S. 1, 11 (1942). The Counsel to the President recently

.

33

indicated that persons to be tried by military commission "must be chargeable
with offenses against the international laws of war." Martial Justice, Full and
Fair by Alberto R. Gonzales, New York Times, November 30, 2001. We are
concerned that arguments by the United States to the effect that customary
international law is not binding will be used by defendants before military
commissions (or in proceedings in federal court) to argue that the commissions
cannot properly try them for crimes under international law. Although we can
imagine distinctions that might be offered, our attempts to gain convictions
before military commissions may be undermined by arguments which call into
question the very corpus of law under which offenses are prosecuted.

•
•

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Immunities: the United States relies upon customary international law to provide the
President and his family with immunity from prosecution and legal process when he
travels abroad, by virtue of the doctrine of head of State immunity, which is entirely a
matter of customary international law. Historically, it has also relied upon customary
law with respect to the immunities of diplomatic and consular agents and
representatives. See, e.g., U.S. Statement of Interest filed in Begum v. Saleh, 99 Civ.
I 1834 (S.D.N. Y. filed March 31, 2000)(referring to the UN Headquarters Agreement
and the Convention on Privileges and Immunities of the United Nations, the United
States submitted: 'The privileges and immunities to which diplomats accredited to
the United States were entitled were, at the time the above treaties were negotiated,
governed by customary international law. Customary international law had for
centuries recognized that the absolute independence and security of diplomatic
envoys was essential to fulfillment of their critical role in international relations, and
that full diplomatic immunity was a necessary guarantor of that independence.") See
also 767 Third Avenue Associates v. Permanent Mission of the Republic of Zaire,
988 F.2d 295, 299-300 (2d Cir.), cert. denied, 510 U.S. 819 (1993).

• Treaties: as the Draft Opinion notes at pages 31-32, the law applicable to the
- --- -----·interpretation and implementation of treaties is considered customary international
law. A State's obligation to comply with its treaty obligations, for example,
originally derives from a customary international law obligation.

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The Law of the Sea: the United States has consistently asserted in its interactions with
other States that customary international law overns in res ect
rna ers
e e mmon 0 t e continental shelf, the determination of baselines
for purposes of measuring the breadth of the territorial sea and other maritime zones
and the.right-o!-i~e-territoriahea of coastal States. TIle
United States has claimed for itself, for example, rights in its Exclusive Economic
Zone on the basis that "international law recognizes that, in a zone beyond its
territory and adjacent to its territorial sea, known as the Exclusive Economic Zone, a
coastal State may assert certain sovereign rights over the natural resources and related
jurisdictions." (proclamation 5030, Exclusive Economic Zone of the United States of
America, March 10, 1983) .• The United States regularly protests other countries'
refusals to comply with customary international law-based freedom of navigation
rules. Without asserting its rights under customary international law, for example, the

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The fact that the internationally wrongful act may have been lawful under the
internal law ofa State has no bearing on the lawfulness of the act under international law.
See, e.g., ILC draft Article 3 ("The characterization of act of State as internationally
wrongful is governed by international law. Such characterization is not affected by the
characterization of the same act as lawful by intemallaw") and the Commentary
accompanying that Article (at 74). See, e.g., Treatment ofPolish Nationals, 1932.
P.C.IJ, Series A/B, No. 44, p.4, pp. 25-5 ("according to generally accepted principles. a
State cannot rely, as against another State, on the provisions of the latter's Constitution.
but only on international law and international obligations duly accepted ...
[C]onversely, a State cannot adduce as against another State its own Constitution with a
view to evading obligations incumbent upon it under international law or treaties in force .
.. . The application of the Danzig Constitution may ... result in the violation ofan
international obligation incwnbent on Danzig towards Poland, whether under treaty
stipulations or under general international law . . .. However, in cases of such a nature, it
is not the Constitution and other laws, as such, but the international obligation that gives
rise to the responsibility of the Free City.").
Where the international responsibility of a State for an internationally wrongful
act is engaged, the State is under an international law obligation, inter alia, to cease its
wrongful conduct and to make full reparation for the injury caused by the internationally
wrongful act See., e g , U ,r draft Articles 30 and J I and the Commentaries
accompanying those Articles (at 216, 223). See also Factory at Chorzow, Jurisdiction,
1927, P.C.IJ, Series A, No.9, p. 21 ("It is a principle of international law that the breach
of an engagement involves an obligation to make reparation in an adequate form.").
Thus, irrespective of the conclusions of the Draft Opinion with respect to the
status of customary international law as part of federal law.t' it is clear that customary

53 The Department of State is continuing to review the Draft Opinion with respect to this issue.
-- -. -, We would note, however, that the Founding Fathers were in fact quite cognizant of the . ------.---.-- - - importance of compliance with customary international law ("the law of nations") and did in fact
incorporate it by reference into the Constitution through the offenses clause. That it was not
expressly included as a basis ofjurisdiction for Article ill courts is not dispositive.
In its brief as amicus curiae before the U,S. Supreme Court in Boos v. Barry, No. 86-803 (1987)
at pp. 20-21 (supporting respondents OPPQsjnl:' the petit jon for a writ of cet:tiQ£a;:i), ~ {Jaitea
States stated that: "In the period immediately following the Declaration ofIndependence, the
Continental Congress sought to assure the world that the 'law of nations [would be] strictly
... . ....observed'.-by--the-Unit-ed-Stat~s-tI-4-f:€ontinental-€ong;-63-S-tt-179)):~:-:-:-Irwas"tegaraeaasa'·""
matter 'of high importance to the peace of America that she observe the law of nations,' and it
was anticipated that this would be 'perfectly and punctually done' by the new national
government (The Federalist No.3, at 43 (Jay) (C. Rossiter ed. 1961)." The Framers expressly
included a reference to the "law of nations" in the offenses clause (U.S. CONST., Art. I, § 8, cl.
10) and also incorporated it directly into U.S. law through the Alien Tort Statute, enacted as part
of the Judiciary Act of 1789, now codified at 28 U.S.C. 1350. Despite the continuing academic
controversy (to which the Draft Opinion refers) about its status post-Erie and whether the
President may choose in certain circumstances not to comply with it, customary intemationallaw
is in fact recognized and continues to be applied by U.S. courts in a variety of circumstances.

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36

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intemationallaw creates intemational legal obligations for the United States for the
breach of which the United States would be responsible as a matter ofintemationallaw.
The Draft Opinion does not address this "legally meaningful" aspect of U.S. compliance
with relevant customary intemationallaw-based obligations .

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Appendix A.

Fora in wbicb U.S. determinations may be reviewed if it decides against GPW
application
At several points the Draft Opinion notes the deference given by U.S. Courts to
Presidential determinations in the conduct of foreign policy and the interpretation of
treaties. The following is a catalogue of a number of ways in which the decisions related
to detainees in our custody may be examined.
1. Domestic

•

U.S. Court Review. A decision not to afford GPW protections to Taliban
prisoners may be scrutinized by U.S. federal courts. Although the writ of habeas corpus
historically has not been available to enemy aliens captured and imprisoned outside U.S.
territory, see. e.g., Johnson v. Eisentrager, 70 S. Ct. 936 (1950) (holding that German
nationals, confined in Germany following conviction by military commission of having
engaged in military activity against United States in China after surrender of Germany,
had no right to writ of habeas corpus to test lesality of their detention), the "doors of our- --------------------courts have not been summarily closed upon these prisoners," id. at 945. Even those
enemy prisoners without a right to habeas corpus historically have had their applications
considered by the U.S. federal courts, including the Supreme Court. Id. As the Supreme
Court recognized in Eisentrager, three different federal courts "provided [the prisoners']
counsel opportunity to advance every argument in their support and to show some reason
in the petition why they should not be subject to the usual disabilities of non-resident
enemy aliens." Id.
--Civi~-Liability: The Alien Tort Claims Act ("ATCA") provides that "[tjhe district
courts shall have original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. §
1350 (1993). Courts have recognized causes of action under the ATCA for violations of
customary international human rights norms including, inter alia. genocide;" war '.
crimes,55 torture,56 prolonged arbitrary detention," and cruel, inhuman or degrading
tteattI1efit. $a 1 he A I LA has, at times, been employed against persons acting under color
Sol

Kadic v. Karadzic, 70 F.3d 232 (2d Cir 1995), cm denied, SIS U,S. 100) (1996).

"[d.
Filartiga v. Pena Irala, 630 F.2d 876 (2d Cir. 1980).
v. City ofLos Angeles, 141 F.3d 1373 (6th Cir, 1998); Alvarez-Machain v, Sosa, 266 F.3d 1045
~9dJ Cir. 2001).
8 Abebe-Jira v. Negewo, 72 F.3d 844 (11 dJ Cir. 1996)(allowing fomier Ethiopian women prisoners to sue
an official of former Ethiopian government official for arbitrary detention and torture, including cruel,
inhuman, and degrading treatment and punishment in Ethiopia); Paul v. Avril, 901 F.Supp. 330 (S.D. Fla.
1994) (found that former military'ruler of Haiti bears personal responsibility for systematic pattern of
egregious human rights abuses during his military rule and therefore bears responsibility for torture and
arbitrary detention committed by his military forces); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass.
1995) (found that former Guatemalan Minister of Defense could be liable for cruel inhuman and degrading
56

51 Martinez

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of U.S. law. 59 It remains an open question, however, whether an ATCA claim against a
U.S. official would succeed.
2. International
Criminal Prosecution. Article 129 ofGPW places each Party "under the
obligation to search for persons alleged to have committed, or to have ordered to be
.... cofi'1ifiitted;such-gravebreacnes;anart6Tbnri~rsucnpersons, regardless of their
nationality, before its own courts. It may also, if it prefers, ... hand such persons over for
trial" to another party. Ifwe conclude that the GPW does not apply, and take actions
arguably inconsistent with it, foreign prosecutors may investigate U.S. government
officials to determine whether they committed grave breaches.
UN Commission on Human Rights. This Commission is the primary human
rights body of the United Nations. It adopts resolutions on thematic matters involving
human rights and it may adopt resolutions concerning the human rights performance of
named countries. The latter is inevitably a highly charged exercise, as demonstrated by
past annual U.S. efforts to have the Commission adopt resolutions condemning China and
Cuba. This year, for the first time ever, the United States is not a member of the
Commission, and the Administration has not yet decided whether we will be present as
-----------..-..--an observer. This year's session runs from March 18 to April 26 in Geneva IfoW'
treatment of Taliban detainees does not comport with perceived international standards
(e.g., the Geneva Conventions, the International Covenant on Civil and Political Rights),
we can expect heavy criticism in the Commission and, perhaps. for the first time, a
resolution naming and criticizing the United States directly.

.

ECOSOC and the UN General Assembly. Resolutions adopted by the
Commission On Human Rights move through the UN system, firstto the Economic and
Social Council (ECOSOC), which reviews, adopts and forwards them to the General
Assembly, which reviews and adopts them. At each stage there is-debate.s-Thus, there------- will be two repetitions of whatever is produced by the Commission. ECOSOC meets in
July; the General Assembly meets in the fall.

International Court ofJustice - Advisory Opinions. Article 96 of the UN Charter
authorizes "[tjhe General Assembly or the Sec uri Council and other UN bodies to
request e ternanon
ourt ofJustice to give an advisory opinion on any legal
question." On several occasions, the Court has provided guidance in advisory opinions
.---------~e-appli~ation-*-an-intematienal-taty
despite-objections-ofa-concemed-pany:&--·----··-··----------------..

•

treatment, which included: witnessing the torture or severe mistreatinent of an immediate relative; watching
soldiers ransack their homes and threaten their families; being bombed from the air; and having a grenade
thrown at them).
59 See, e.g., Jama v. U.S.I.N.S., 22 F.Supp. 353 (D.N.J. 1998) (allowing immigration detainees to bring
claims under ACfA against private corrections contractor for cruel, inhuman or degrading treatment)
40 See, e.g.. Interpretation ofPeace Treaties, 1950 I.CJ. Reports 65; Reservations to the Genocide
Convention, 1951 I.CJ. Reports IS.

39

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The Court has also provided guidance on the scope and content of customary
international law, even over the objections of States."
Inter-American Court of Human Rights - Advisory Opinions. Article 64 of the
American Convention on Hwnan Rights allows for member states of the Organization of
American States to request an advisory opinion from the Inter-American Court of Human
Rights regarding the interpretation?f the American Convention or "other treaties
··········--cofiternifig-t1lepfotectiorrofnUman
i,· --VIhllethe decisions
are not binding, many countries in the Americas that have accepted the jurisdiction of the
Court consider them authoritative. If an advisory opinion were to be requested from the
Court in regard to an interpretation of obligations of countries pursuant the Geneva
Conventions, or more generally under international humanitarian law, it is probable that
the Court would exercise its advisory jurisdiction over the matter.

rignts-iiitheAniencan-states:

•

OSCE. The United States has been an active participant in the Organization for
Security and Cooperation and Europe (OSCE) since signing the Helsinki Final Act in
1976. Although OSCE docwnents do not create legal obligations, they do create political
commitments that are subject to regular public scrutiny by OSCE institutions (such as the
Office of Democratic Institutions and Hwnan Rights ("ODIHR")) as well as by other
participating states. The United States relies on the OSCE to achieve various political
objectives within the regioD, particularly in Central .l\sia objectives that will be hard to
further if we are subject to increasedcriticism for running afoul of our OSCE
commitments. On November 22, 200 I, ODIHR requested information about the
implications of the President's Military Order; we replied on December 1.
Inter-American Commission on Human Rights. Petitions may be submitted on
behalf of individuals charging a violation of any of the rights enwnerated in the American
Declaration on the Rights and .Duti es ofMan to the Inter-American Commission on
Hwnan Rights ("IACHR"). The IACHR is an organ of the Organization of American
States, to which the United States is a party. If the IACHR finds the petition admissible,
it may issue a Final Report with a decision on whether there has been a violation of the
American Declaration and offer recommendations to the State. If the State does not take
steps to implement the recommendations, the Report becomes public. Cases were
brought against the United States with respect to elements of U.S. actions in Grenada and
in Panama. Given its past rulin s, the IAHCR will certainlv consi
.
e a iban to be admissible; its rules concerning standing allow third parties to
e a 0
file petitions on behalf of Taliban members. The IACHR also will feel free to interpret
and determine the applicability of the Geneva Conventions andother treatIes.
UN Special Rapporteurs. The Commission on Hwnan Rights appoints experts as
Special Rapporteurs to examine selected areas. The Special Rapporteur on Summary and
Arbitrary Executions and the Special Rapporteur on Torture regularly inquire about the
status of particular individuals in the United States and request our assurances that our

•

61 See,

e.g., Advisory Opinion. The Legality ofthe Threat or Use ofNuclear Weapons. 1996 I.CJ. Reports.
That Advisory Opinion was requested by the General Assembly in Resolution 49nSK (1994), which was
adopted by a vote of78 - 43 (U.S.) - 38 (abstentions),

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treatment of an individual comports with international standards. The United States
consistently responds to these inquiries about individuals (many on death row or in
prison) from Special Rapporteurs, providing assurances that it is conforming with
international law in its treatment of those individuals. In mid-November the Department
received an inquiry about the Military Order of November 13 from the Special
Rapporteur on the Independence of Judges and Lawyers. We have not yet responded.
Inquiry Under ArtiCle: 132 of the: Ge:nevaConvention Relative to the Treatment of
Prisoners of War. Article 132 provides:
At the request of a Party to the conflict, an enquiry shall be
instituted in a manner to be decided between the interested Parties.
concerning any alleged violation of the Convention.
If agreement has not been reached concerning the procedure for the
enquiry, the Parties should agree on the choice of an umpire who will
decide upon the procedure to be followed.
Once the violation has been established, the Parties to the conflict
shall put an end to it and shall repress it with the least possible delay.
It is possible that a coalition partner could attempt to invoke this provision if we are
holding one of their nationals.

Inquiries and Monitoring bv Treatv Bodies. The United States is a party to the
International Covenant on Civil and Political Rights ("ICCPR"). the Convention against
Torture, and the Convention on the Elimination of Racial Discrimination. These treaties
•
establish a regular reporting obligation for States Parties and a specialist body charged
with the oversight of treaty performance by States. It is possible that if the United States
appears to be acting in a manner inconsistent with its treaty obligations, the Human
Rights Committee could request an immediate report from the United States on its
-- --_·-----rornpliance, followed by a public oral hearing.

•