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Roland: Could you comment on this topic?
In the discussion of whether Al Queda (as opposed to Taliban) prisoners should be considered POWs, there has been little mention of Taliban control over the Al Queda forces. This requirement appears both in the case of "militias or volunteer corps forming part" of the armed forces of a party to a conflict
(Geneva III, art. 4(A)(1)), and in the case of "other militias and members of other volunteer corps" who fulfill the four criteria in Geneva III, art. 4(A)(2) (carrying arms openly, etc.). The "forming part" language in Article 4(A)(1) makes a control requirement obvious. Similarly, Article 4(A)(2) covers other militias or corps "belonging to a Party to the conflict."
In both cases, some degree of Taliban control over Al Queda forces would be required in order for the Al Queda detainees to qualify as POWS. Note that in the case of 4(A)(2), control is required IN ADDITION to meeting the four indicia of military structure.
The crucial legal question, therefore, is what degree of Taliban control was required? My sense is that under 4(A)(1), this is rather straight-forward factual question: did Al Queda fighters "form part of" the Taliban military in the sense that they functioned and were treated like any other Taliban troops.
The existence of a separate command structure, for example, would appear to disqualify Al Queda from this status.
As for 4(A)(2), the degree of necessary control was addressed directly by the Appeals Chamber of the Yugoslav Tribunal in the Tadic case (paras. 88-145). The overall question facing the court was whether the conflict in Bosnia was internal or international. It would be considered international if the FRY had incurred state responsibility for the acts of Bosnian Serb forces. This, in turn, depended on the degree of control required of the Yugoslavs. In answering this question, the court focussed on the "belonging to a Party to the conflict" language in Article 4(A)(2), which it found to embody a test of control.
The court first declined to follow the test used by the ICJ in the Nicaragua case (which was much stricter and would pose great difficulties for any Al Queda detainee). Instead, it held that "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group." (para. 131). The court's elaboration of this test is worth quoting at length:
"control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under
international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.
Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts." (para. 137).
Whether or not Al Queda considered themselves comrades of the Taliban in a common struggle, or indeed any subjective views of Al Queda personnel about their relationship to the Taliban, would appear irrelevant to this test. The test is an objective one and focusses on the acts of the state authorities vis-a-vis militias, not the other way around.
Given the scarcity of facts about the relationship between Al Queda and the Taliban, it is difficult to assess how this test would be applied here. Reports in the media seem to suggest that while a close working relationship did exist, Al Queda was independent in many ways. For example, given bin Laden's independent wealth and the group's other sources of funding, it is unclear whether the Taliban had any role in "financing, training and equipping or providing operational support to" Al Queda.
On the other hand, this paucity of facts would appear to heighten the "doubt" referred to in Article 5 of Geneva III as to whether Al Queda detainees fit within Article 4(A)(2). The case for such doubt being resolved by a "competent tribunal," and not US political or military leaders, thus appears quite strong.
It's making the rounds on a newsgroup that I'm signed up for and the topic was interesting and wanted to know your thoughts on the matter.
In the discussion of whether Al Queda (as opposed to Taliban) prisoners should be considered POWs, there has been little mention of Taliban control over the Al Queda forces. This requirement appears both in the case of "militias or volunteer corps forming part" of the armed forces of a party to a conflict
(Geneva III, art. 4(A)(1)), and in the case of "other militias and members of other volunteer corps" who fulfill the four criteria in Geneva III, art. 4(A)(2) (carrying arms openly, etc.). The "forming part" language in Article 4(A)(1) makes a control requirement obvious. Similarly, Article 4(A)(2) covers other militias or corps "belonging to a Party to the conflict."
In both cases, some degree of Taliban control over Al Queda forces would be required in order for the Al Queda detainees to qualify as POWS. Note that in the case of 4(A)(2), control is required IN ADDITION to meeting the four indicia of military structure.
The crucial legal question, therefore, is what degree of Taliban control was required? My sense is that under 4(A)(1), this is rather straight-forward factual question: did Al Queda fighters "form part of" the Taliban military in the sense that they functioned and were treated like any other Taliban troops.
The existence of a separate command structure, for example, would appear to disqualify Al Queda from this status.
As for 4(A)(2), the degree of necessary control was addressed directly by the Appeals Chamber of the Yugoslav Tribunal in the Tadic case (paras. 88-145). The overall question facing the court was whether the conflict in Bosnia was internal or international. It would be considered international if the FRY had incurred state responsibility for the acts of Bosnian Serb forces. This, in turn, depended on the degree of control required of the Yugoslavs. In answering this question, the court focussed on the "belonging to a Party to the conflict" language in Article 4(A)(2), which it found to embody a test of control.
The court first declined to follow the test used by the ICJ in the Nicaragua case (which was much stricter and would pose great difficulties for any Al Queda detainee). Instead, it held that "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group." (para. 131). The court's elaboration of this test is worth quoting at length:
"control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under
international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.
Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts." (para. 137).
Whether or not Al Queda considered themselves comrades of the Taliban in a common struggle, or indeed any subjective views of Al Queda personnel about their relationship to the Taliban, would appear irrelevant to this test. The test is an objective one and focusses on the acts of the state authorities vis-a-vis militias, not the other way around.
Given the scarcity of facts about the relationship between Al Queda and the Taliban, it is difficult to assess how this test would be applied here. Reports in the media seem to suggest that while a close working relationship did exist, Al Queda was independent in many ways. For example, given bin Laden's independent wealth and the group's other sources of funding, it is unclear whether the Taliban had any role in "financing, training and equipping or providing operational support to" Al Queda.
On the other hand, this paucity of facts would appear to heighten the "doubt" referred to in Article 5 of Geneva III as to whether Al Queda detainees fit within Article 4(A)(2). The case for such doubt being resolved by a "competent tribunal," and not US political or military leaders, thus appears quite strong.
It's making the rounds on a newsgroup that I'm signed up for and the topic was interesting and wanted to know your thoughts on the matter.
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