Precedent and Prisoners of War”
Dr. Pauline Kaurin
Department of Philosophy
In early 2002 the Bush
Administration announced that Taliban and Al-Qaeda detainees at
To start, it will be helpful to outline the problem of
the detainees at
In response to these criticisms, the Bush Administration asserted that they were “enemy combatants” not Prisoners of War (POW) and that accordingly, the Geneva Conventions did not apply. At the same time, they did go to a considerable effort to publicly demonstrate that the detainees were being treated in a similar fashion (with a few exceptions) as POW’s would be treated. However, the treatment was only part of the issue; another equally pressing issue was the legal status of such detainees which would affect their future access to counsel, their right to be tried in a certain manner, not to be tortured and to be released at the end of the hostilities. What exactly was their status under Article 4 of the 3rd Geneva Convention (1949)? Where was the support for the Administration assertion that the above conventions did not apply to these detainees?
According to the US Army Operational Law Handbook, US Armed forces
“…will comply with the [Law of War] regardless of how the conflict is characterized. Judge Advocates, therefore, should advise commanders that, regardless of the nature of the conflict, all enemy personnel should initially be accorded the protections of the Third Geneva Convention, at least until their status be determined…”
When doubt exists about the
status of the combatants then POW/ Article 5 Tribunals must be established to
make the determination of status, as was done during the
What was the rationale for the Bush Administration to reject the POW status of the detainees without convening Article 5 tribunals? Their initial position was as follows: 1) International Law does not apply to members of a non-state organization; 2) the conflict was not an internal one (such that Al-Qaeda might be a protected group under category C above); 3) Al-Qaeda members failed to meet four criteria for protection listed in B above and 4) Afghanistan was not a functioning state and therefore, the Taliban was not recognized as the legitimate government (despite being recognized by the United Nations and some nations as such). In a statement on Feb 7, 2002 the Bush Administration suggested that while members of the Taliban might meet the Article 4 criteria in principle, Al-Qaeda did not and further, “…that the Taliban’s actions in violating the laws of war and closely associating itself with Al-Qaeda had the effect of stripping Taliban members of their rights to POW status.” The Administration went on to insist that while the detainees were not entitled to POW status, they would be given many (though not all) of the same privileges as a matter of policy, but not certain legal protections. (They would not have a canteen, pay, personal financial accounts, and access to scientific equipment, musical instruments or sports outfits.)
Beyond these pronouncements, it was unclear what customary legal protections the detainees would have under other international law or other conventions (assuming that Article 4 protections did not apply). What is the rationale for not extending certain customary legal protections to these detainees? The Administration emphasized again that the Taliban failed to meet all 4 of the criteria in Article 4 (see B above) by virtue of their association with Al-Qaeda. According to the Administration, both were guilty of “promoting barbaric philosophies,” did not adhere to the Geneva Conventions and should not be entitled to either those protections or an Article 5 tribunal hearing to determine if those protections were warranted. The determination had already been made; it was obvious, the Administration alleged, that these detainees were not entitled to such protections.
are we to make of these claims? If we look only at the technical letter of the
statute (what Article 4 of the Third Geneva Convention actually says), we could
cede that the Bush Administration has a point.
On their interpretation of the
statute (which was by no means uncontroversial), the United States may not be required to accord POW status to such
detainees, although one might argue that a tribunal ought to be convened to
make that determination rather than the Administration making what appeared to
be an ad hoc decision. Despite the considerable debate about what
the statute says and under what circumstances tribunals ought to be convened, for
the sake of argument let us grant that the Administration is right on the letter of the statute. However, any first year law student knows
that there is much more to law that what the letter of the statute says; law
also includes precedent and how judges have interpreted and applied that
statute. The controversy to date has
been largely concerned with Article 4 as a statute and what it says or with
that other international statutes might say, but what about precedent? What about how the
To get at legal precedent and the role it might play in the case of the detainees at Guantanamo Bay, consider an objection the Bush Administration might raise against the consideration of precedent: this war on terror is a totally new, “unprecedented” situation with no analogies in history or law and therefore, there are either 1) no prior situations or experiences that we might look to for guidance or 2) any that exist do not have enough parallels to apply effectively. In either case, they might argue, looking to precedent is impossible and/or impractical in dealing with this situation. Such an objection is useful since it reveals several misconceptions about legal precedent and its uses. First, this objection assumes that there are certain situations that are entirely new and without relevant parallels to what has come before. Second, it assumes that for precedent to work there must be a very clear (nearly perfect) parallel and in the absence of such a parallel, one is justified in ignoring prior precedent and/or making new rules. Third, it assumes that precedent is fairly rigid and inflexible and can not be made to be adapted to a slightly different, but analogous situation.
To address these misconceptions, we need to look at what precedent is and how it works in the law. It is important to be clear that precedent is not about acquiring certainty or applying some kind of objective formula that will give one the right (and same) answer each time. Rather we ought to think of it in the same way as our own life experiences: they might give us a guide to follow in many situations, but the tricky part is trying to deicide which past experiences are relevant guides when confronting what seems to be a new situation.
Imagine that I go to a party where the host and/or hostess have elected for a North African theme. Here is a social situation that seems entirely novel and “unprecedented”: when I arrive my host greets me wearing unfamiliar attire and in an unfamiliar language; the décor of the house consists not of couches and tables and chairs, but lots of draperies, low tables and cushions on the floor; the drinks that I am offered are unfamiliar and served in unfamiliar vessels; when time comes for dinner we gather around low tables the food is piled onto several common dishes and there are no utensils or individual plates anywhere in sight. What do I do? After I get over the shock of it all, I would likely to consider how I have handled other social situations which have been unfamiliar (even if they have not been this unfamiliar). So I think about the time I went to another theme party where there was unusual food and décor. What did I do? In that situation, let us say that I watched the other guests and my hostess for cues and followed their lead. Is there any good reason that following such a precedent seems not to be indicated here? (Such as, that strategy utterly failed and they kicked me out of the party and never invited me to another.) If not, I am likely to follow that precedent unless I can think of another case that seems more analogous and would be more helpful in navigating this “new” situation.
Similarly, legal or judicial precedent is a decision or procedure that serves a guide in the determination of future, analogous cases; it is sometimes referred to as stare decisis meaning “let the decision stand” and has been a central element in the development of common law. Why? Why has this idea been so important? The use of precedent has been a force for stability, rationality and internal coherence in the law – if one can generally count on courts to look at past decisions as a basis for future decisions, this generates a certain kind of predictability in the law which one might see as important in providing a coherent system and in influencing the actions of persons who must live by that law. On this view of precedent (where the predictability and rationality of the law are primary considerations), judges and others look for the closest analogous decision or case and then apply that decision to the new case in a straightforward manner.
However, such a strict view of precedent has its own problems. What if the original decision was a flawed one? What if social norms, ethical standards or public sensibilities have changed? Should one never act in such a way as to ignore or overturn what has gone before? On a less stringent view of precedent, one looks for the closest analogy to the case at hand – not simply in terms of the facts of the case itself – but also considering how the parties are effected, what concepts of equity and justice might require, what the future impact of the decision might be on the larger society or legal system. Another issue that supports a broader view of precedent is the fact that precedents are often imprecise (it is not clear how the past decision applies to the present case) or there may be situations where more than one precedent might apply. In such cases, judges must try to decide which precedents ought to be followed or how they ought to be applied and interpreted in terms of the present case. This cannot simply be a case of applying a past decision as if it were a strict rule or formula, but must be done taking into account the function of the law and larger considerations of justice.
Furthermore, there may be cases which seem to have no clear precedent or in which the precedent is viewed not to apply. Past precedent can be and is overruled when circumstances seem to warrant, but this is not to be taken lightly since it can unduly undermine the stability, coherence and predictability of the law. Precedent is to be taken as a guide and absence of a precedent does not bar a decision; C. Gordon Post observes, “The fact that there is no precedent is not conclusive. The law would be an absurd science were it founded on precedent only.” Just as in life, past experience is a guide, but we also may have situations where experience is not entirely helpful and we have to rely on other kinds of resources to make a decision – reason, logic, norms and ideas (equity and justice). Consequently, we use precedent in the law as guide about what worked in the past – looking at analogous situations in similar ways for the sake of efficiency, coherence and predictability, but also recognizing that we may have to overturn past experience or take a new approach if circumstances warrant.
To return to the objection at the beginning of the section, while it is possible that there are some situations that are entirely novel, it is unlikely that there is any situation where we cannot find at least some analogies with what has happened in the past, with some parallels that we might draw from past situations. Clearly there is no such thing as a perfect precedent (because otherwise it would be the exact same situation and we would already know what to do) which is why there are debates about which precedents ought to be applied in a given case and shades of interpretation about the various ways that a particular precedent could be seen to apply to a new case. If we are going to look at the problem of the detainees at Guantanamo Bay as a legal issue, then the first course seems to be to look at analogous cases and see if there are past circumstances that might shed light on the present issue and if there are, as I will argue later that there are, to what degree they can apply to the present case. It is certainly possible that the analogies are not close enough to be applicable or that the precedent of the past needs to be overruled, but we would need to make a compelling case for this, rather than simply asserting the necessity for a new rule without any reference to what has been done before.
there are analogies that we ought to consider in examining the treatment of these
detainees, what might they be? (Recall
that aside from members of regular armed forces (either of a recognized or
unrecognized state), Article 4 of the Geneva Convention articulated that
members of other groups had to 1) be commanded by one responsible for
subordinates, 2) wear a fixed, distinctive sign recognizable at a distance, 3)
carry arms openly and 4) obey the laws and customs of war.) Where are there analogies for how to treat
“terrorists” who do not seem to fit this picture of the enemy soldier, in a
conflict which does not seem to bear any resemblance to past “wars” and under
circumstances in which the normal rules of engagement (international law, the
In this section we will look at three cases which do not seem to meet the usual parameters of conventional warfare waged by conventional soldiers against other soldiers of conventional nation-states: the American Revolutionary War in which a new and unrecognized nation was at war with its colonial parent; the American Civil War in which part of the nation seceded and went to war against former compatriots in a civil war; and the Vietnam conflict in which regular and guerilla forces fought against their French colonial parents and later, their allies the Americans. In all of these cases, there are questions that might be raised about whether 1) these groups would meet the requirements of international law and custom for prisoners of war; 2) the United States was required to give prisoner of war status to these captured combatants; and 3) if they did, why they did so – on the basis of what law, statute, custom or precedent.
the American Revolutionary War the American forces (mostly militias) were in
rebellion against the regular army forces of
was the issue of captured enemy combatants handled? Apparently, the American states and their
militias tried to observe the customary rules of international law in this
regard, while the British varied between observing the customs of war and what
was considered acceptable in quelling a domestic disturbance (standards lower
that the treatment to be accorded to prisoners of war). It is apparent that the customary rule that
prisoners of war cannot be required to perform labor directly harmful to their
state of origin was generally observed (as it was during the US Civil
War.) The American Congress permitted
captured officers to have their liberty on parole, but not those of inferior
rank – as was international custom at the time.
Congress provided all officers on parole with freedom (sometimes more
Washington reported to Congress in 1776 that it was international custom for
prisoners of war held by
In the case of the American Revolutionary War, the international customs (since there were few codified statutes at the time) were for the most part followed and if anything, it was the British how might be accused of not treating American prisoners of war as well as they should have (despite the fact that for the most part these prisoners were accorded customary treatment). The scandal caused by the discovery of the mistreatment of American sailors aboard British prison ships demonstrates the extent to which it was expected that these customs were and would be followed by both sides. That such treatment was largely accorded by both sides is significant since the British might have taken the position that the Americans were British citizens in rebellion, and therefore guilty of treason, and treated them accordingly. However, they did not and for the most part accorded them prisoner of war status and treatment.
the American side, it might have been argued that since
the time of the US Civil War, many of the practices that were merely customary
in the Revolutionary War were in the process of being codified and made into international
statutes. The Treaty of 1785 between the
Lieber Code specified standards of confinement that were humane, but also compatible
with safety, and forbade the subjection of prisoners to conditions not
necessary to their maintenance (such as torture). While the rule on rations (that rations
given prisoners of war should be similar to military rations of the “detaining
state”) was endorsed in principle by both sides, in practice the Union did not
provide the same rations as the Confederate side (who generally observed by the
rule and supplied the same rations to Union prisoners as they did to their
soldiers). Despite these problems, one
of the most extensive uses of parole may have been during the US Civil War;
there were problems with the treatment of prisoners of war by both sides and criticisms
which led to changes in the Geneva Convention (1864) and what might be
considered the first war crimes trial:
scandal and outcry raised in the wake of
about more contemporary examples? One
could argue that the above two examples do not tell us much because the customs
of war (codified or not) were generally accepted by both sides. In addition,
much of the warfare in both of these conflicts was what we might consider
“conventional” as opposed to the sustained guerilla warfare (with a few “conventional”
some definitions and distinctions will be helpful in clarifying the nature of
the different Vietnamese groups that were involved in the conflict. The term Vietcong was used to delineate
Communist forces operating in
to Annex A of Directive Number 381-46 (December 27, 1967), which laid out the
Criteria for Classification and Disposition of Detainees, detainees whose
status has yet to be determined are “…entitled to humane treatment in according
with the provisions of the Geneva Conventions.”
In several places this document is clear
that such detainees are entitled to Article 4 (Relative to the Treatment of
Prisoners of War) Geneva Convention protections until their status has been
determined by a competent tribunal. It
is also made clear that the
Further, detainees will be referred to a tribunal when 1) they have committed a belligerent act and 2) either there is doubt as to their status or a determination has been made of Non-Prisoner of War status (NPW) and the detainee or his advocate claims he is entitled to Prisoner of War (PW) status. The document also lays out the rights of detainees which include right to counsel and an interpreter and most importantly, that “…no person may be deprived of his status as a prisoner of war without having had an opportunity to present his case with the assistance of a qualified advocate or counsel.”
Prisoners of War were defined as those belonging to one of the following categories: the Vietcong (Main Force and Local Force), North Vietnamese Army regulars (NVA) and irregulars including full-time guerilla units which operate outside their home area, self-defense forces which operate in their home area and secret self-defense force who operated in Government of Vietnam controlled areas. VC and NVA soldiers were accorded this status by their membership in these organizations and irregulars were accorded this status if they were captured engaging in combat or other belligerent acts or could have been proved to have done so (excluding acts of terrorism, sabotage or spying). Non-Prisoner of War status was accorded to those who were entitled to PW status, but were subject to being tried by GVN for offenses against the law; those who were members of irregular guerilla units detained while not actively engaging in combat or belligerent actions or where it could not be proved that they had done so; those suspected of being a spy, saboteur or terrorist; those who voluntarily submitted to GVN control; and innocent civilians.
Despite the fairly clear policies in this document, in addition to the Geneva Conventions and other US policies, questions were raised about whether (and to what extent) the laws of war should be followed by American troops and whether doing so would put them at a combat disadvantage. It was alleged that the VC irregulars (and sometimes others) did not wear uniforms regularly or in the sense required the rules of war; sometimes they wore NVA uniforms, more often the “black pajamas” and at times dressed as peasants – with nothing to distinguish them from civilian non-combatants in the area. It was also alleged that, on a regular basis, the VC did not follow the rules of war – engaging instead in guerillas tactics, sabotage, terrorism, misinformation and preferring to avoid the larger “conventional” engagements. Finally, a great deal was made (especially in the American press) of the treatment, rather mistreatment, of US prisoners of war, claiming that they were subjected to conditions (notably torture) prohibited by the Geneva Conventions.
happened in practice? While the official
policy was to accord Prisoner of War (PW) status to captured VC (even
irregulars), clearly the results in the field were mixed – largely because of
the practical and logistical issues involved in fighting a guerilla enemy and
the sense that “the other side isn’t playing by the rules, so why should
we.” It was this second issue that came
into conflict with a long precedent of at least attempting to uphold
international law and the customs of war when news of the so-called “
In spite of the controversy, one of the major results of the trials in the wake of My Lai was a revolution in how soldiers (especially the enlisted) were trained; their training now included clear, specific instructions in the Geneva Conventions that concerns the treatment of captured POW’s and enemy combatants.
conclusions are to be drawn from the above discussions? In all of the above situations, despite the
fact that the
the fact that the
Even if one were to reject the examples and arguments from the American Revolution War and the US Civil War as following antiquated ideas of chivalry and customs of war (that the precedent appealed to in those cases can no long be seen to apply), the example of Vietnam presents a clear and specific precedent as to how enemy combatants who do not meet the four criteria of Article 4 should be treated. However, this precedent was not followed (or even mentioned) in the present case. Why not?
First, if one wants to argue that the precedent (even of Vietnam) does not apply in this case, one needs (as judges who overturn a prior precedent must) to provide and argument and compelling reasons as to why the precedent ought to be rejected; this can also mean ‘rejected,’ not just for this case, but for future cases – in effect generating a new precedent. Why should this precedent be overturned? What is the argument for the new precedent? Failing to address this issue risks a great deal – treating the law as a function of power and whim rather than of reason, predictability and coherence. Second, the wording or the application of the statute, while not irrelevant, does not get at this issue – precedent is also part of the law.
looking at precedent we need to look for analogous situations (just as we did
in the case of the Moroccan dinner party above) and see what was done and
why. While there are some analogous
elements to all of the cases discussed above, Vietnam seems to have the most
analogous points since it was a conflict in which there were both regular (NVA,
some VC) and irregular (VC) troops. In
the case of the
these similarities and the clarity of the precedent from
Why? What is the argument for following that precedent?
To address this question, I want to echo a line of argument quoted by Kenneth Anderson in his article “What To Do With Bin Laden and Al Qaeda Terrorists: A Qualified Defense of Military Commissions and United States Policy On Detainees at Guantanamo Bay Naval Base”:
The United States government could have pursued terrorist suspects by traditional law enforcement means, in which case the Geneva Conventions would not apply….But since the United States government engaged in armed conflict in Afghanistan – by bombing and undertaking other military operations – the Geneva conventions clearly do apply to that conflict.
To this point, I would add that if the United States chooses, as it has, to use the tools of war in dealing with terrorists, then international law and the rules of war (not just the Geneva Conventions) must be followed; this includes not just following the particular statutes involved, but also means following legal precedent unless a case can be made for a new precedent.
say we because the Bush Administration does and says what it does on my behalf
as a US citizen) cannot abandon the laws of war (either statute or precedent)
simply because 1) the letter of the statute might be seen not to apply – on a
very narrow reading of that statute – though the spirit of the statute and
precedent clearly do and 2) we find it inconvenient or inhibiting to our
conception of the war effort. If you
give by the rules of war, you die by the rules of war. Any attempt to circumvent this raises
disturbing questions about to what extent and under what circumstances each
nation gets to be their own arbiter of when and how international statute and
precedent apply to them. It is hardly
necessary to point out the very serious and wide ranging consequences of such a
view, especially when the
This paper had
attempted to address a lacuna in the discussion of whether prisoner of war
(POW) status and treatment will be accorded to the Taliban and Al-Qaeda
“Decision Not to Regard Persons detained in
 Ibid. p. 476.
 Ibid, p 477.
 Ibid. p. 477-8.
 Ibid. p. 479-80.
 For this discussion of precedent, I am drawing on C. Gordon Post’s discussion in “Stare Decisis: The Use of Precedent” in Readings in the Philosophy of Law eds. John Arthur and William Shaw 2nd edition (Englewood Cliffs, NJ: Prentice Hall, 1993), p. 19 ff
 Ibid, p. 21.
 Ibid, p. 26.
 William S. Flory, Prisoners of War: A Study in the Development of International Law ( American Council on Public Affairs: Washington DC, 1942), p. 17ff.
 Ibid., p. 117.
 Ibid., p. 51ff
 Ibid. p. 62ff
 Ibid., p. 18.
 Burrus M. Carnahan, “Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity,” American Journal of International Law Volume 92, Issue 2 (April 1998), p.215.
 Burrus M. Carnahan, “Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity,” American Journal of International Law Volume 92, Issue 2 (April 1998), p.214.
 William S. Flory, Prisoners of War: A Study in the Development of International Law ( American Council on Public Affairs: Washington DC, 1942), p. 57.
McElroy, This Was
 Ibid., p. 339.
 Douglas Pike, The Vietcong Strategy of Terror. (1970), p. 121.
 “ Contemporary Practice of the United States Relating to International Law” compiled Charles Berans and Jerome Silber The American Journal of International Law Vol. 62, No. 3 (July 1968), p. 766 ff.
 Ibid, p. 769.
 Ibid. , p. 771.
 Ibid., p. 767.
 George K. Tanham, Communist Revolutionary Warfare: From the Vietminh to the Vietcong. (New York: Praeger, 1967), p. 136ff.
 For a
fuller discussion of what happened at
Anderson, “What To Do With Bin Laden and Al Qaeda Terrorists: A Qualified
Defense of Military Commissions and