Memorandum for the Files: Re: Whether Persons Captured and Detained in Afghanistan are 'Protected Persons' Under the Fourth Geneva Convention [August 5, 2005] [open pdf - 3MB]
"In May and June of 2004, we advised Pat Sullivan and David Nahmias of the Criminal Division that persons captured and detained in Afghanistan do not qualify for 'protected person' status under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365 ('GC,' the 'Fourth Convention,' or the 'Convention'). This memorandum memorializes our analysis and conclusions. Like the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364 ('GPW' or the 'Third Convention'), GC applies 'to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties,' art. 2(1) (or between powers that accept and apply its provisions, art. 2(3)), and to 'cases of partial or total occupation of the territory of a High Contracting Party,' art. 2(2). The President has previously determined that GPW applies to the armed conflict between the United States and the Taliban because Afghanistan is a High Contracting Party to that Convention. Memorandum from President George W. Bush to the Vice President, the Secretary of State, 'et al, Re: Humane Treatment of al Qaeda and Taliban Detainees' 2(b) (Feb. 7, 2002)."
U.S. Dept. of Justice: http://www.justice.gov/