Law of War Workshop Deskbook - Higgins Counterterrorism ...

evolutionary powers. Some developing nations expressed concern that thesuper powers of the time (1977), namely, the U.S. and USSR, might, as asubterfuge for intervention, assert that they needed to become involved in theinternal conflict to come to the aid of the insurgents pursuant to CA3.a. Protocol II as a minimum standard by analogy?(1) United States is not a party to Protocol II.(2) Unlike Protocol I, it may reflect customary law.(3) Minimum standards at Article 4 (Fundamental Guarantees), Article 5(Persons Whose Liberty Has Been Restricted), and Article 6 (PenalProsecutions).b. The problem of Detainees.(1) Haiti. 27(2) Somali. 28(3) Bosnia-Herzegovina. 29D. The Right Kind of Person.1. Once a conflict rises to the level of common Article 2, Article 4, GPW,determines who is entitled to the status of a prisoner of war. Traditionally,persons were only afforded prisoner of war status if they were members ofthe regular armed forces involved in an international armed conflict. TheGPW also included members of militias or resistance fighters belonging to aparty to an international armed conflict if they met the following criteria:a. Being commanded by a person responsible for their subordinates;b. Having fixed distinctive insignia; 30c. Carrying arms openly; 31 and,d. Conducting their operations in accordance with the laws and customs ofwar.2. One must recognize that with coalition operations one may have to apply adifferent standard; our coalition partners may use Protocol I’s criteria.Protocol I only requires combatants to carry their arms openly in the attackChapter 5Prisoners of War and Detainees76