5cjxburmr

“competent tribunal” generally entails the Detaining Power convening an administrativeboard. 519 The GPW affords the Detaining Power substantial discretion regarding thecomposition and procedures of an Article 5 tribunal. 520Article 5 only requires a tribunal if there is “any doubt” regarding a person’s entitlementto POW status or treatment. 521 For example, if there was no doubt that the armed group to whicha person belongs fails to qualify for POW status, then the GPW would not require a tribunal toadjudicate the person’s claim to POW status by virtue of membership in that group. 5224.27.4 Tribunals to Assess Other Detainee Issues. By its terms, Article 5 of the GPWonly addresses a person’s entitlement to POW status or treatment. However, an administrativeprocess may be appropriate to address status questions besides entitlement to POW status ortreatment, such as whether detainees are retained personnel or civilians. DoD practice has beento use Article 5 tribunals or similar administrative tribunals to address those issues. 523 Forexample, DoD used administrative tribunals to address a variety of detainee issues duringdetention operations in Viet Nam, 524 Panama, 525 the Persian Gulf in 1991, 526 Iraq in 2003, 527519 Denmark proposed the term “competent tribunal” instead of “military tribunal” because “[t]he laws of theDetaining Power may allow the settlement of this question by a civil court rather than by a military tribunal.” II-BFINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 270.520 For examples of the procedures of past U.S. tribunals, see, e.g., U.S. CENTRAL COMMAND REGULATION 27-13,Captured Persons: Determination of Eligibility for Enemy Prisoner of War Status (Jan. 15, 1991); 1997 MULTI-SERVICE DETENTION REGULATION § 1-6.e.521 Jay S. Bybee, Assistant Attorney General, Status of Taliban Forces Under Article 4 of the Third GenevaConvention of 1949, Feb. 7, 2002, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 1, 9 (“Under Article 5 of GPW,‘[s]hould any doubt arise as to whether persons … belong to any of the categories enumerated in Article 4, suchpersons shall enjoy the protection of the present Convention until such time as their status has been determined by acompetent tribunal.’ As we understand it, DoD in the past has presumed prisoners to be entitled to POW status untila tribunal determines otherwise. The presumption and tribunal requirement are triggered, however, only if there is‘any doubt’ as to a prisoner’s Article 4 status.”) (amendments in original).522 Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis).523 See, e.g., 1997 MULTI-SERVICE DETENTION REGULATION § 1-6.e.(10) (boards making determinations pursuant toArticle 5 of GPW may make, in addition to a determination that someone is an enemy prisoner of war, alsodeterminations that an individuals is retained personnel, an “innocent civilian,” or a civilian internee “who forreasons of operational security, or probable cause incident to criminal investigation, should be detained.”).524 In Viet Nam, the U.S. Army used panels of three officers assisted by a judge advocate advisor to assess the statusof detainees. See, e.g., U.S. MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 381-46, Military Intelligence:Combined Screening of Detainees (Dec. 27, 1967); U.S. MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 20-5, Prisoners of War -- Determination of Eligibility (Mar. 15, 1968); Fred K. Green, The Concept of “War” and theConcept of “Combatant” in Modern Conflicts, 10 THE MILITARY LAW AND THE LAW OF WAR REVIEW 267, 285(1971) (discussing detainee status classifications under Military Assistance Command Vietnam Directive 20-5).525 See FRED BORCH, JUDGE ADVOCATES IN COMBAT 103-06 (2001) (describing detainee screening procedures in1989-1990 Operation JUST CAUSE in Panama).526 See FINAL REPORT ON THE PERSIAN GULF WAR 577-78 (describing article 5 tribunals during Operation DESERTSTORM).527 See, e.g., CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS(11 SEPTEMBER 2001 - 1 MAY 2003) 41-47 (2004) (describing Article 5 tribunals conducted during Operation IRAQIFREEDOM in 2003).181