Status of Taliban Forces under Article 4 of the Third Geneva Convention of 1949

You have asked for our Office’s views concerning the status of members of the Taliban militia under Article 4 of the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War (“GPW”). Assuming the accuracy of various facts provided to us by the Department of Defense (“DoD”), we conclude that the President has reasonable factual grounds to determine that no members of the Taliban militia are entitled to prisoner of war (“POW”) status under GPW. First, we explain that the Taliban militia cannot meet the requirements of Article 4(A)(2), because it fails to satisfy at least three of the four conditions of lawful combat articulated in Article 1 of the Annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land (“Hague Convention”), which are expressly incorporated into Article 4(A)(2). Second, we note that neither Article 4(A)(1) nor Article 4(A)(3) apply to militia, and that the four conditions of lawful combat contained in the Hague Convention also govern Article 4(A)(1) and (3) determinations in any case. Finally, we explain why there is no need to convene a tribunal under Article 5 to determine the status of the Taliban detainees.