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INTERNATIONAL LAW - FOURTH CIRCUIT CONCLUDES RUSSIAN ARMY OFFICER TURNED TALIBAN CONSPIRATOR NOT ENTITLED TO COMBATANT IMMUNITY - United States v. Hamidullin.

The Geneva Conventions are the primary source for humanitarian protections of individuals during times of armed conflict and war under international law. (1) The Geneva Convention (III) Relative to the Treatment of Prisoners of War (Third Geneva Convention) defines a prisoner of war (POW) as someone associated with one power who has been captured or confined by an enemy power during war or armed conflict. (2) In the context of the Third Geneva Convention, the POW label covers only those who have been involved in an international armed conflict and provides them certain protections, which are not allotted to individuals captured during noninternational armed conflict. (3) In United States v. Hamidullin (4) the U.S. Court of Appeals for the Fourth Circuit addressed the distinction between international and noninternational conflict when it declined to extend POW status to Irek Hamidullin because he was involved in a noninternational conflict. (5)

In 2009, Irek Hamidullin, a former officer in the Russian Army, was captured by American soldiers and Afghan Border Police in Afghanistan. (6) Hamidullin was associated with the Haqqani Network, as well as the Taliban, and at the time of his capture, he conspired and then engaged in an assault on an Afghan Border Police post. (7) As a result, Hamidullin was first taken to U.S. facilities in Afghanistan, and then later indicted in the Eastern District of Virginia on charges stemming from the attack on the post. (8)

The indictment against Hamidullin "included providing and conspiring to provide material support to terrorists" and "attempting to destroy an aircraft of the United States Armed Forces in violation of 18 U.S.C. [section] 32." (9) "Hamidullin moved for dismissal of his second superseding indictment" before the trial and argued that he was entitled to combatant immunity under both the Third Geneva Convention and common law. (10) The district court denied the motion to dismiss, stating that although the armed conflict in Afghanistan was an international conflict in 2009, "neither the Taliban nor the Haqqani Network fell within any of the categories of lawful combatants listed in Article 4 of the Third Geneva Convention ... [and] [t]hus, ... as a matter of law, Hamidullin was not entitled to combatant immunity." (11) Following his conviction, Hamidullin appealed and argued again that he was entitled to combatant immunity, but in April 2018, the Court affirmed the lower court's ruling; it emphasized that Hamidullin was not entitled to POW status, and thus, not entitled to combatant immunity under the Third Geneva Convention. (12)

World War II elucidated the severe changes in warfare which called for the revision of the 1929 Convention and later resulted in the completed Third Geneva Convention in 1949. (13) The Third Geneva Convention contains 143 articles and since its enforcement in 1950, it has become globally applicable. (14) Among these articles are Article 2 and Article 3, which respectively designate the two types of armed conflicts recognized by the Third Geneva Convention: international armed conflict and noninternational armed conflict. (15)

Article 2 lists who is covered by the full protections of the Third Geneva Convention. (16) It concerns international armed conflicts and those who are lawful combatants and fall under the specifications of Article 2 are given prisoner of war status and therefore receive the protections that coincide with that status; one of the most important protections is combatant immunity. (17) For example, in United States v. Lindh, (18) the court refused to extend combatant immunity status to the defendant who claimed to be a Taliban soldier and was charged with multiple offenses associated with terrorist groups. (19) The court held that Lindh's involvement with the Taliban did not qualify him for combatant immunity because the Taliban could not be considered armed forces or armed forces for a state, nor could the Taliban itself qualify as a state. (20)

Unlike Article 2, Article 3 of the Third Geneva Convention governs noninternational conflicts, and those who fall under it do not receive combatant immunity. (21) For example, in Hamdan v. Rumsfeld, (22) the defendant was associated with al Qaeda in Afghanistan and was held by the United States in a detention facility for various terrorism offenses. (23) The defendant argued that he was entitled protection of the Third Geneva Convention, which the lower court found to be inaccurate. (24) The Supreme Court found that because the defendant acted with al Qaeda during the conflict in which he was captured, the protections of Article 2 of the Third Geneva Convention did not apply, but rather Article 3 protections were required. (25) The Supreme Court emphasized that Article 3 applies to conflict even if it is not between signatories. (26)

In Hamidullin, the Court deliberated whether Hamidullin was involved in an international or noninternational armed conflict to determine if he was to receive protections under Article 2 or Article 3 of the Third Geneva Convention. (27) The Court reasoned that although the conflict in Afghanistan originally started as an international armed conflict between the United States and Afghanistan, when the conflict ceased, it could no longer be classified as an international armed conflict. (28) The Court concluded that because Hamidullin was involved in an armed conflict of noninternational character, he should be protected under Article 3 of the Third Geneva Convention. (29) As an individual falling under Article 3, therefore, Hamidullin was denied both POW status and combatant immunity. (30)

The Court correctly classified the armed conflict in Hamidullin v. United States as a noninternational armed conflict. (31) There was no question as to whether the Third Geneva Convention applied, as it applies universally to all armed conflicts involving contracting parties and noncontracting parties. (32) The Court correctly isolated the overarching issue by distinguishing Hamidullin's case as either an international or noninternational armed conflict, because this distinction would determine whether Hamidullin could receive POW status and combatant immunity. (33) In support of the Court's decision, the Third Geneva Convention provides that even if there are parties to an armed conflict that deny the state of war, or if the state of war or armed conflict is disputed, Article 3 can still apply. (34)

Compared to United States v. Lindh, it is clear that Hamidullin's protections are not governed by Article 2 of the Third Geneva Convention. (35) In Lindh, the defendant fought as a soldier for the Taliban and argued he was entitled to combatant immunity, not unlike in Hamidullin, where Hamidullin was associated with and fought alongside the Taliban and who also argued for combatant immunity. (36) The court in Lindh distinguished the Taliban from lawful combatants, other armed forces, and traditional state structure; therefore, the defendant was not entitled to combatant immunity. (37) The Hamidullin Court made a similar distinction when it stated that neither the Taliban or the Haqqani Network fell beneath the umbrella of lawful combatants under the Third Geneva Convention. (38) The armed conflict in which Hamidullin was involved, therefore, could not be classified as an international armed conflict and should not be governed by Article 2. (39)

The Court correctly followed and applied established case law when it determined Hamidullin was governed by Article 3 of the Third Geneva Convention. (40) Similar to Hamidullin's case, in Hamdan, the defendant argued his terrorism-related charges were subject to the protections of Third Geneva Convention. (41) The Supreme Court found that the Third Geneva Convention, specifically Article 3, applied to the defendant's case, and concluded that it provides protection to armed conflict not between signatory countries. (42) Similarly, in Hamidullin, the Court found that at the time of the Hamidullin's capture, the War in Afghanistan was no longer between two signatory nations and classified it as a noninternational armed conflict covered under Article 3. (43) As a result of these rulings, terrorist groups similar to the Taliban are unlikely to be considered states or nations, and subsequent cases involving their actions will be classified as noninternational conflicts that are governed by Article 3 of the Third Geneva Convention. (44)

In United States v. Hamidullin, the Court considered whether Hamidullin should be protected under Article 2 or Article 3 of the Third Geneva Convention concerning international armed conflict, or noninternational armed conflict, respectively. Though the Court determined that by 2009, the War in Afghanistan was a noninternational conflict, it still addressed the status of the groups with which Hamidullin was associated--the Taliban and the Haqqani Network--and concluded the groups could not qualify as states or parties in the context of the Third Geneva Convention. For those reasons, the conflict in which Hamidullin was involved did not qualify as an international armed conflict under the Third Geneva Convention. Hamidullin's case qualified under Article 3 of the Third Geneva Convention because it applies to groups that are neither states nor parties to the Third Geneva Convention, and the groups do not have to be signatories. Under the Court's reasoning, therefore, POW status and combatant immunity under Article 2 were not extended to Hamidullin, but instead his protections fell under Article 3 of the Third Geneva Convention.

(1.) See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces and in the Field, Aug. 12,1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 (protecting wounded and sick soldiers and religious and medical personnel on land during war); Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 (protecting sick and wounded soldiers during war at sea); Geneva Convention (III) Relative to the Treatment of Prisoners of War, art. 2, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention] (highlighting protections for prisoners of war); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (explaining protections for civilians and those in occupied territory as well as internees); INT'L COMM. OF THE RED CROSS, COMMENTARY TO GENEVA CONVENTION III RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 5 (Jean S. Pictet, ed. 1960), http://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-III.pdf [hereinafter PICTET COMMENTARY] (providing origins of Third Geneva Convention). The Geneva Conventions were created by the International Committee of the Red Cross for the purpose of regulating armed conflict and providing legal protections to those involved in such conduct. PICTET COMMENTARY, supra, at 3-7. In 1929, as a result of World War I, the International Committee of the Red Cross drafted a convention to enforce proper treatment of civilians and soldiers alike. Id. at 4. "It took an important and active part in the repatriation of prisoners of war, particularly those from the Russo-German front where repatriation was beset with particularly difficult problems of a geographical, political or material nature." Id. This convention came to be the "Geneva Convention of July 27, 1929, relative to the Treatment of Prisoners of War." Id. The 1929 Convention was in force during World War II. Id. Though the protection that applied to prisoners of war was relatively successful, and certainly better than that of the protections during World War I, more revision was necessary. Id. at 5-6. It became clear that certain principles needed to be reaffirmed and clarified, including the "immediate liberation [of soldiers] at the end of hostilities." Id. at 6. The International Committee of the Red Cross began redrafting the text of the 1929 Convention. Id. The drafts passed through a number of stages and for four months was the sole working document at the Diplomatic Conference. Id. at 9. Four committees were created at the Diplomatic Conference, each tasked separately in order to establish the revised convention. Id. at 7. In August 1949, the Diplomatic Conference perfected the text, and subsequently "seventeen delegations signed the four Conventions." Id. at 9. Other delegations steadily began to sign because one of the requirements of adopting the Geneva Conventions is ratification by the country's respective government. Id. The title of the Third Geneva Convention became "Treatment of Prisoners of War of August 12, 1949." Id. at 11-12. See also The Geneva Conventions of 1949 and their Additional Protocols, INT'L COMM. OF THE RED CROSS (Jan. 1, 2014), https://www.icrc.org/en/document/geneva-conventions-1949-ad-ditional-protocols (providing history of creation Geneva Conventions). The Geneva Conventions took on the role of aiding the sick, and are essentially the body of law that governs international humanitarian law. Id. International humanitarian law governs and minimizes the effects of armed conflict. Id.

(2.) See Third Geneva Convention, supra note 1, art. 4 (listing persons who qualify as Prisoner of war). Article 4 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War (Third Geneva Convention) defines who is considered a prisoner of war (POW) in the context of the Convention. Id. The expansiveness of the term POW encompasses individuals who are members of armed forces, militia or volunteer corps who are party to a conflict and have fallen into enemy custody. Id. art. 4(A)(l)-(2). The definition goes on to include civilians who are associated with, but not actually members of, the armed forces, as well as individuals who once were associated with or were members of the armed forces of "the occupied country," but who are no longer associated or members. Id. art. 4(A)(4)-(B)(1).

(3.) See Third Geneva Convention, supra note 1, art. 2-5 (supplying scope of Third Geneva Convention); PICTET COMMENTARY, supra note 1, at 44 (providing application of Third Geneva Convention to international armed conflicts and noninternational conflicts). Article 3 governs noninternational armed conflicts and provides less protections than to those who fall under Article 2, which governs international armed conflicts. PICTET COMMENTARY, supra at 40. Under this provision, no one is granted any kind of immunity. Id. Under Article 3, there are no measures "to prevent a person presumed to be guilty from being arrested and so placed in a position where he can do no further harm; and it leaves intact the right of the State to prosecute, sentence and punish according to the law." Id. Moreover, if an insurgent fell into enemy custody, Article 3 would not protect that individual even if they committed no crime other than "that of carrying arms and fighting loyally." Id. Article 3 is titled "Conflicts Not of International Character" and applies to armed conflict in the territory of a high contracting party. Id. at 27. See also Prisoners of war and detainees protected under international humanitarian law, INT'L COMM. OF THE RED CROSS (Oct. 29, 2010), https://www.icrc.org/eng/war-and-law/protected-persons/prisoners-war/overview-detainees-protected-persons.htm (explaining protections and freedoms of POWs). "The status of POW only applies in international armed conflict." Id. A POW is immune from prosecution for taking part in hostilities. Id. "They must be released and repatriated without delay after the end of hostilities." Id. Additionally, POWs "are protected against any act of violence, as well as against intimidation, insults, and public curiosity." Id. The protections under Article 3 include protections against "murder, torture, as well as cruel, humiliating, or degrading treatment." Id. If detained for participation in hostilities under Article 3, there is no immunity for criminal prosecution. Id.

(4.) 888 F.3d 62 (4th Cir. 2018).

(5.) See id. at 75 (analyzing Hamidullin's status under Articles 2 and 3 of Third Geneva Convention). The Court makes the distinction that this was a noninternational conflict based on Hamidullin's conduct and the status of the War in Afghanistan as of 2009. Id. Hamidullin made the argument that he might be covered for POW status pursuant to Article 4(A)(3) of the Third Geneva Convention, but this argument falls flat. Id. at 74. The Court determined that "irrespective of whether Taliban fighters are entitled to POW status pursuant to Article 4(A)(3), Hamidullin is not entitled to combatant immunity because the protections of Article 3 (governing non-international (sic) conflicts), rather than Article 2 (governing international conflicts), apply." Id. at 75. The requirement in force under Article 3 is that Hamidullin is to be tried "by a 'regularly constituted court, affording all the judicial guarantees which are recognized'" as essential to civilization. Id. The Court concluded that the district court, therefore, "did not err in determining that Hamidullin was properly tried in a regularly constituted American court." Id.

(6.) See id. at 65, 83 (explaining Hamidullin's background and events leading to capture). In 2009, Hamidullin was orchestrated an attack on Afghan Border Police in Camp Leyza and was later captured in the Khost province of Afghanistan. Id. at 65. "He was taken into U.S. custody and held in U.S. facilities in Afghanistan. He was later indicted in the Eastern District of Virginia for acts related to the attack." Id. "Significantly, nothing in the record explains how or why Hamidullin was transferred from military to civilian custody, or how he ended up in Virgina." Id. at 83 (King, J. dissenting).

(7.) See id. at 65 (providing information about Hamidullin's capture). Hamidullin organized and orchestrated an attack on American Soldiers and Afghan Border Police at a post for Afghan Border Police in Camp Leyza, and soon after he was captured in the Khost province of Afghanistan. Id. He was held in the custody of the United States and detained in U.S. facilities in Afghanistan before later being indicted in the Eastern District of Virginia for different crimes associated with the attack on the border post. Id. See also Ex-Russian officer's convictions upheld in US forces attack, ASSOCIATED PRESS, Apr. 18, 2018, https://wtop.com/local/2018/04/ex-russian-officers-convictions-upheld-in-us-forces-attack/(providing more detailed account of events leading to Hamidullin's capture). According to prosecutors, "when U.S. helicopters responded to the attack, the insurgents tried to fire at them with anti-aircraft (sic) weapons, but they malfunctioned. They said U.S. forces killed approximately [twenty] of Hamidullin's fighters, while the coalition forces sustained no casualties." Id. See also Press Release, U.S. Dep't of Justice, Russian Taliban Fighter Sentenced to Life in Prison in Terrorism Case (Dec. 3, 2015), https://www.justice.gov/opa/pr/rus-sian-taliban-fighter-sentenced-life-prison-terrorism-case (providing timeline for Hamidullin's attack and subsequent capture). Hamidullin planned his attack on Camp Leyza for months; he recruited fighters and intended to shoot down U.S. helicopters with military grade weapons at night on November 28, 2009. Id. He followed through with his plan, and "two U.S. Army helicopters responded to the attack, just as Hamidullin anticipated from months of planning and reconnaissance." Id. The U.S. Army helicopters were the real target, not Camp Leyza. Id. Hamidullin perched himself on a hill close by, where he could still see his recruits and could radio instructions. Id. The helicopters approached and although Hamidullin ordered his fighters to fire at the aircrafts, the weapons malfunctioned, and the helicopters were not struck down. Id. Hamidullin's recruits then tried "to set an ambush for approaching U.S. and Afghan forces" which was spotted by a U.S. aircraft. Id. Upon approval, the U.S. aircraft then fired at the insurgents, eliminating approximately twenty of Hamidullin's recruits. Id. "The next morning, as U.S. and Afghan forces were conducting a battle damage assessment, Hamidullin was found hiding on the battlefield.". Id.

(8.) See Hamidullin, 888 F.3d at 65, 83 (detailing Hamidullin's transfer from Afghanistan soil to U.S. soil). Though there is nothing in the record that explains this, "Hamidullin was transferred from military to civilian custody" and ended up in the Eastern District of Virginia. Id. at 83. There is nothing in the record that explains how Hamidullin ended up in Virginia, and there is also nothing in the record that provides why or how Hamidullin was transferred from military to civilian custody. Id. Additionally, at the time of his trial, Hamidullin was in civilian custody and under indictment for civilian crimes over which Congress has granted exclusive jurisdiction to Article III district courts. Id. at 72.

(9.) See id. at 83 (King, J., dissenting) (providing charges against Hamidullin after his capture). "The initial indictment against Hamidullin was returned by the grand jury in Richmond in October 2014 and twice superseded, most recently in April 2015 by the operative indictment in Hamidullin's trial." Id. at 83. In the April 2015 indictment, Hamidullin was charged with,
[F]ifteen offenses, all under Title 18 of the United States Code:
conspiracy to provide material support to terrorists ([section] 2339A);
providing material support to terrorists ([section] 2339A); conspiracy
to destroy an aircraft of the armed forces of the United States
([section] 32); attempting to destroy an aircraft of the armed forces
of the United States ([section] 32); conspiracy to kill an officer or
employee of the United States or a person assisting such officer or
employee ([section] 1117); two counts of attempting to kill an officer
or employee of the United States or a person assisting such officer or
employee ([section] 1114); conspiracy to murder a national of the
United States ([section] 2332(b)); two counts of attempting to murder a
national of the United States ([section] 2332(b)); two counts of
engaging in physical violence with intent to cause serious bodily
injury to a national of the United States ([section] 2332(c));
conspiracy to use a weapon of mass destruction ([section] 2332a);
possession of a firearm in connection with a crime of violence
([section] 924(c)); and conspiracy to possess a firearm in connection
with a crime of violence ([section] 924(o)). Several of the charges
included allegations under 18 U.S.C. [section] 2 of aiding and abetting.


Id. See also 18 U.S.C. [section] 32 (1956) (paraphrasing code section on destruction of aircraft or aircraft facilities). "Whoever willfully (1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States" are to be fined or incarcerated, or both. Id. [section] 32(a)(1). Activity that is voluntary and is "(1) ... an act of violence against any individual on board any civil aircraft registered in a country other than the United States while such an aircraft is in flight, if such act is likely to endanger the safety of that aircraft, (2) destroys a civil aircraft registered in a country other than the United States while such aircraft is in service or causes damage to such an aircraft which renders that aircraft incapable of flight" will also be fined or, imprisoned, or both, under this code section. Id. [section] 32(b)(1)-(2).

(10.) See Hamidullin, 888 F.3d at 64-74 (explaining defendant's defenses to his charges). Hamidullin argued that he qualifies for combatant immunity under both the Third Geneva Convention and common law. Id. at 64-65. Hamidullin argued that he is entitled to POW status under Article 4(A)(3). Id. at 74. "Unlike the criteria for militia in Article 4(A)(2), Article 4(A)(3) contains no conditions that groups must fulfill in order to be entitled to POW status; membership in a regular armed force expressing allegiance to a government not recognizing by the detaining power is the only enumerated requirement." Id. He claimed that as a POW, he is entitled to combatant immunity under the Third Geneva Convention and he cannot be tried in a United States criminal court under the Third Geneva Convention. Id. at 68. Another argument Hamidullin made was that 18 U.S.C. [section] 32 was not intended to apply to lawful military actions, and therefore he moved to dismiss that charge as well. Id. at 65.

(11.) See id. at 65, 74 (noting actions of district court on Hamidullin's motions). The district court's evidentiary hearing consisted of experts testifying on the appositenes of the laws of war and the Third Geneva Convention in terms of Hamidullin's situation and the operations and structure of the Taliban as well as the Haqqani Network. Id. at 65. The district court found that under Article 4 of the Third Geneva Convention, neither the Taliban nor the Haqqani Network could be considered lawful combatants because neither group had a fixed, distinctive sign recognizable at a distance, openly carried weapons, or conducted operations according to the customs and laws of war. Id. at 74. "The district court assumed without deciding that in 2009, when the alleged acts took place, the conflict in Afghanistan was an international armed conflict and determined that Hamidullin was not a lawful combatant because neither the Taliban nor Haqqani Network fell within any of the categories of lawful combatants listed in Article 4 of the Third Geneva Convention. Id at 65. Thus, the district court concluded that, as a matter of law, Hamidullin was not entitled to combatant immunity under the Third Geneva Convention or common law and precluded him from presenting this defense at trial. Id. The United States Court of Appeals for the Fourth Circuit also ordered a supplemental briefing in June 2017 to determine "whether the district court possessed jurisdiction to decide, the first instance, whether Hamidullin qualifies for combatant immunity under the Third Geneva Convention." Id. The goal of this briefing was to see if the district court's jurisdiction should have been affected by Army Regulation 190-98, a regulation which implements international law relating to detention during armed conflicts. Id. at 65-66. Hamidullin argued in response that the Army Regulation 190-8 requires the United States Court of Appeals for the Fourth District to relinquish him of his conviction and remand with orders that in accordance with this army regulation, he should be transferred to the United States military for treatment. Id. at 66. See also PICTET COMMENTARY, supra note 1, at 44-45 (articulating POW status under Third Geneva Convention). Article 4 defines POW in accordance with the Third Geneva Convention, as well as those who do not qualify as prisoners of war but should still be treated as prisoners of war. Id. at 44.

(12.) See Hamidullin, 888 F.3d. at 71-75 (providing Fourth Circuit's affirmation of lower court's ruling). The U.S. Court of Appeals for the Fourth Circuit's supplemental briefing resulted in the Court's conclusion that the lower court did have jurisdiction to determine Hamidullin's status. Id. at 71. "Pursuant to Article 3, Hamidullin can be sentenced in a 'regularly constituted court' that is 'established and organised in accordance with laws and procedures already in force in a country.'" Id. (citing to 1 ICRC, Customary Int'l Humanitarian Law 355 (2005)). Pursuant to this, the Court found that the U.S. federal district court qualified as a "regularly constituted court." Id. Additionally, the Court concluded that the conflict in Afghanistan was a noninternational armed conflict. Id. As such, Hamidullin was not entitled to combatant immunity because the protections of Article 3 govern his situation, rather than those of Article 2, and thus he cannot be considered a POW. Id. at 75.

(13.) See PICTET COMMENTARY, supra note 1, at 4-10 (providing foundation for Third Geneva Convention). The Third Geneva Convention in 1949 was the result of revisions of the 1929 Convention, which "was applied throughout The Second World War and provided prisoners of war with effective protection and treatment far better than that which they had received during the 1914-1918 conflict." Id. at 5. The 1929 Convention was related to the Hague Regulations, which recognized the humane treatment of prisoners. Id. After World War II, and after witnessing the changes in conduct and the aftermath of war as well as the changes in human living conditions, it became evident that a revision of the 1929 Convention was needed. Id. at 5-6. The term "prisoners of war" needed to expand in scope "to include members of armed forces" following surrender. Id. at 6. Additionally, as a result of "the increase in work by prisoners of war" it became apparent that stricter governing regulations of captivity were needed. Id. There was also a need to emphasize the principle that at the end of hostilities there should be immediate liberation. Id. Finally, there was a need for the groups responsible for managing "the interests of prisoners of war and seeing that the relevant regulations were respected and should, in regard to both their status and their scope, be as independent as possible of the relations between belligerents." Id. The International Committee of the Red Cross organized again to begin the revision on April 21, 1949, at the Diplomatic Conference of 1949. Id. The Diplomatic Conference of 1949 "set up four main Committees, which sat simultaneously and considered (a) the revision of the First Geneva Convention and the Hague Agreement of 1899 which adapts that Convention to maritime warfare, (b) the revision of the Prisoners of War Convention, (c) the preparation of a Convention for the protection of civilian persons in time of war, and (d) provisions common to all four conventions." Id. at 6-7. After many meetings, the Third Geneva Convention was completed and after much deliberation, it was titled "Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949. Id. at 11-12. See also Albert J. Esgain & Waldemar A. Solf, The Geneva Convention Relative to the Treatment of Prisoners of War 1949: Its Principles, Innovations, and Deficiencies, 41 N.C. L. REV. 537, 540 (1963) (discussing creation and relevance of 1929 Convention in Geneva). Created by the International Committee of the Red Cross, the 1929 Convention was a treaty that essentially established international law and was created as a result of World War I and other previous conflicts. Id. The 1929 Convention was not "ratified by all of the belligerents," and though it specified conventional law relating to POWs, during World War II, "two main theaters, Eastern Europe and the Far East the conventional law was, for all practical purposes, disregarded. Id. Two other main players in World War II, Japan and the Soviet Union, also had ratified the 1929 Convention. Id. See also Introduction to 1929 Convention relative to the Treatment of Prisoners of War, INT'L COMM. OF THE RED CROSS, https://ihl-databases.icrc.org/ihl/INTRO/305 (last visited Feb. 3, 2019) (providing history of 1929 Convention's creation and implementation). The International Red Cross Conference in 1921, held in Geneva, communicated "the wish that a special convention on the treatment of [POWs] be adopted." Id. "The International Committee of the Red Cross drew up a draft convention which (sic) was submitted to the Diplomatic Conference convened at Geneva in 1929." Id. "The most important innovations c onsisted in the prohibition of reprisals and collective penalties, the organization of prisoners' work, the designation, by the prisoners, of representatives and the control exercised by protecting Powers." Id. This draft convention became the 1929 Convention relative to the Treatment of Prisoners of War. Id. The Third Geneva Convention would take its place in 1949. Id. See also Introduction to Convention (III) relative to the Treatment of Prisoners of War, INT'L COMM. OF THE RED CROSS, https://ihl-databases.icrc.org/ihl/INTRO/375?OpenDocument (last visited Feb. 3, 2019) (discussing need for revisions and improvements following 1929 Convention). "Experience had shown that the daily life of prisoners depended specifically on the interpretation given to the general regulations." Id. As the 1929 Convention was to be posted in all POW camps, it had to be intelligible for any type of reader. Id. See also Esgain & Solf, supra, at 542 (describing need for revision of 1929 Convention due to World War II). By the time the Diplomatic Conference met in 1949 following World War II, prisoners were not promptly returned to their home countries, and nearly one million German and Japanese prisoners were still in the possession of the Soviet Union. Id. Moreover, members of the Axis armed forces had denied POW status to individuals who had surrendered after their States had been defeated. Id.

(14.) See The Geneva Conventions of 1949 and their Additional Protocols, International Committee of the Red Cross (Oct. 29, 2010) (providing states and countries who have ratified Geneva Convention). Ratification by many states began on October 21, 1950 when the Conventions came into force. Id. In the 1950s, seventy-four nations ratified the Conventions, and forty-eight more nations ratified them in the 1960s; "[twenty] states signed on during the 1970s, and another [twenty] States did so during the 1980s. Twenty-six countries ratified the Conventions in the early 1990s... [s]even new ratifications since 2000 brought the total number of States Party to 194." Id. With 194 countries as signatories, the Geneva Conventions, are applicable worldwide. Id. The Third Geneva Convention contains 143 articles, as opposed to the 1929 Convention with only ninety-seven. Id. The additional articles in the Third Geneva Convention specified more precisely "the conditions and places of captivity," specifically in regard to the relief, labor, pecuniary resources, and the respite POWs receive. Id.

(15.) See RULAC Project, International armed conflict, GENEVA ACAD, OF INT'L L. AND HUM. RTS., http://www.rulac.org/classification/international-armed-conflict (last updated Aug. 30, 2017) (defining international armed conflict in terms under Article 2 of Third Geneva Convention). Article 2 presents the protections for international armed conflict. Id. "An international armed conflict is an armed conflict between two or more states." Id. "The threshold for an international armed conflict to exist is very low: whenever there is resort to hostile armed force between two States, there is an international armed conflict." Id. Additionally, armed forces of one country that move into another country's territory, either by accident or mistake, will not amount to an international armed conflict; intent for the movement may be considered in making this determination. Id. See also RULAC Project, Non-international armed conflict, GENEVA ACAD, OF INT'L L. AND HUM. RTS., http://www.rulac.org/classification/non-international-armed-conflicts (last updated Sept. 11, 2017) (defining noninternational armed conflict in terms of Article 3 of Third Geneva Convention). A situation of merely internal conflict or civil disturbance will meet neither the threshold of an international conflict, nor the level of noninternational conflict. Id. Article 3 is present in all of the Geneva Conventions, including the Third Geneva Convention. Id. A noninternational armed conflict is present when there is an armed conflict between "government authorities and organized armed forces or between such groups within a State." Id. The question of whether a conflict has met the level of noninternational conflict is evaluated "on a case-by-case basis." Id.

(16.) See Third Geneva Convention, supra note 1, art. 2 (providing extent of full protections under Article 2 of Third Geneva Convention). The full protection of the Third Geneva Convention applies:
[T]o all cases of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties, even if the
state of war is not recognized by one of them. The Convention shall
also apply to all cases of partial or total occupation of the territory
of a High Contracting Party, even if the said occupation meets with no
armed resistance. Although one of the powers in conflict may not be a
party to the present Convention, the Powers who are parties thereto
shall remain bound by it in their mutual relations. They shall
furthermore be bound by the Convention in relation to the said Power,
if the latter accepts and applies the provisions thereof.


Id. art. 2. See PICTET COMMENTARY, supra note 1, at 19 (explaining when Third Geneva Convention applies). Article 2 provides to which parties the full Third Geneva Convention applies. Id. Additionally, the words "armed conflict" instead of "war" in Article 2 were chosen specifically to expand the net of the activity Article 2 might encompass. Id. at 23. Two states which use weapons to act against each other might argue that they are not participating in war, but with the expression "armed conflict" this argument is more difficult. Id. Thus, within the meaning of Article 2, any strife arising between two States which leads to intervention of members of armed forces is an "armed conflict." Id.

(17.) See PICTET COMMENTARY, supra note 1, at 19-27 (explaining Article 2 applies to international conflicts and defining POW); Third Geneva Convention, supra note 1, art. 4 (defining six categories of lawful combatants). In an international conflict as defined by Article 2, individuals imprisoned by the enemy will be entitled to treatment as POWs if they fall within any of the following six categories under Article 4:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces, which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Third Geneva Convention, supra, note 1, art. 4. See also Geoffrey S. Corn, Thinking the Unthinkable: Has the Time Come to Offer Combatant Immunity to Non-State Actors?, 22 STAN. L. & POL'Y REV. 253, 256 (2011) (defining combatant immunity and protection of POWs). Combatant immunity is allotted to POWs along with other humanitarian protections. Id. at 256. This immunity is the protection from criminal penalty for those in enemy custody who acted lawfully while involved in hostilities. Id. This protection was developed mostly in an effort to encourage compliance with humanitarian law during conflict. Id.

(18.) 212 F. Supp. 2d 541, 545-53 (E.D. Va. 2002) (highlighting distinction between groups granted combatant immunity versus those not granted combatant immunity).

(19.) See id. (describing events preceding Lindh's capture). Lindh, an American citizen, had "trained at an al Qaeda or Taliban camp, (1)' and he knew that the "purpose of al Qaeda was to fight and kill Americans." Id. at 545. After his training was complete he was sent on various missions in support of the Taliban and al Qaeda. Id. at 546. Additionally, Lindh, aware that Osama Bin Laden was an enemy of the United States, stayed at one of Bin Laden's guest houses in Kandahar, Afghanistan, between trainings. Id. at 545-46. He continued to fight in his unit even after the September 11, 2001 terrorist attacks, but he eventually surrendered to Northern Alliance armed forces after his fighting group retreated in November 2001. Id. at 546. Lindh and his unit were transferred to a nearby prison compound, and he was interviewed by two Americans, one from the Central Intelligence Agency and the other a U.S. government employee. Id. Later that day, there was an uprising of the Taliban detainees which lasted until December 1, 2001, when the uprising was quelled, and Lindh and other al Qaeda and Taliban fighters were in the custody of American and Northern Alliance. Id. at 546-47. Lindh was charged in a ten-count indictment with terrorism-related crimes. Id. at 547. Lindh claimed that he was a lawful combatant and protected by combatant immunity as a member of the Taliban. Id. at 552. The court explained that:
Lawful combatant immunity, a doctrine rooted in the customary
international law of war, forbids prosecution of soldiers for their
lawful belligerent acts committed during the course of armed conflicts
against legitimate military targets. Belligerent acts committed in
armed conflict by enemy members of armed forces may be punished as
crimes under belligerent's municipal law only to the extent that they
violate international humanitarian law or are unrelated to the armed
conflict.


Id. at 553. The court held that Lindh's involvement did not qualify him for combatant immunity. Id. at 554. The court reasoned that "[combatant] immunity can be invoked only by members of regular or irregular armed forces who fight on behalf of a state and comply with the requirements of lawful combatants." Id. The court added that "the Taliban lacked the command structure necessary to fulfill" what was needed to qualify as a state, failed to observe the laws and customs of war, did not operate as a traditional military with a clear structure, and failed to wear uniforms to distinguish them from the regular civilians. Id. at 558. See also Corn, supra note 17, at 255 (describing non-state actors and combatant immunity). Individuals who fight alongside a non-state entity, even if acting lawfully, are denied combatant immunity as well as POW status. Id.

(20.) See Lindh, 212 F. Supp. 2d at 553-54, 558 (explaining Taliban's failure to meet state requirements and inapplicability of combatant immunity). The court reasoned that combatant immunity is granted to lawful combatants who are members of the regular or irregular armed forces fighting on behalf of a state. Id. at 558. See also Corn, supra note 17, at 253-55 (describing nonstate actors and combatant immunity). Individuals who fight alongside a nonstate entity, even if acting lawfully, are denied combatant immunity and POW status. Id. at 255. Nonstate groups fighting in the "war on terror" produced this result:
[I]ndividuals fighting on behalf of non-state (sic) entities could
never qualify as prisoners of war. Nonetheless, by designating the
struggle as an "armed conflict" they were thrust into a twilight zone
of status. Because they were belligerents in an alleged armed conflict,
they could be taken and detained like any other "lawful" combatant.
However, because they fought for a non-state entity, they could not
qualify as prisoners of war and would be condemned as international
criminals for this participation.


Id.

(21.) See Third Geneva Convention, supra note 1, art. 3 (providing exact language from Article 3). When there is a noninternational armed conflict that takes place in the territory of one of the nations to the Third Geneva Convention, the parties involved must apply the following provisions:

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

b) taking of hostages;

c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Id. See also PICTET COMMENTARY, supra note 1, at 23, 27, 38, 40 (providing extent of coverage under Article 3). Article 3 of the Third Geneva Convention covers armed conflicts of noninternational character. Id. at 27. If there are parties to an armed conflict who both deny the existence of a state of war, Article 3 applies:
Even in that event it would not appear that they could, by tacit
agreement, prevent the Conventions from applying. It must also not be
forgotten that the Conventions have been drawn up first and foremost to
protect individuals, and not to serve state interest. Even if the
existence of a state of war is disputed, Article 3 can be applied.


Id. at 23. See also Corn, supra note 17, at 256 (providing definition for noninternational conflict). A noninternational conflict occurs when there is a conflict between states and nonstate groups. Id. at 255.

(22.) 548 U.S. 557, 566 (2006) (focusing on application of Article 3 of Third Geneva Convention).

(23.) See id. at 567-71 (supplying events and context preceding Hamdan's capture). Following the September 11, 2001 terrorist attacks, Congress adopted "a Joint Resolution authorizing the President to 'use all necessary force against those nations, organizations or persons'" he determined had some close involvement with the attacks. Id. at 567-68. This is known as the Authorization for Use of Military Force. Id. at 568. In accordance with the Authorization for Use of Military Force, the President ordered the United States to invade Afghanistan after concluding that the Taliban worked alongside al Qaeda. Id. Among those who were captured and eventually detained at Guantanamo Bay was Hamdan, a Yemini national. Id. at 566.

(24.) See id. at 571-72 (providing Hamdan's arguments to his charges). Hamdan was held in Guantanamo Bay for over a year before he was charged with anything. Id. at 566. Hamdan challenged the authority of the military commissions, and he argued that he was protected under the Third Geneva Convention. Id. at 571. Hamdan remained in Guantanamo Bay during the process of the trial because the Combatant Status Tribunal concluded that he was still an enemy combatant. Id. at 570.

(25.) See id. at 567, 628-31 (providing Article 3's applicability to Hamdan). The district court granted Hamdan's request for a writ of habeas corpus and mandamus, although the Court of Appeals ultimately reversed the district court. Id. at 567. The Supreme Court then realized that this case raised many important questions which concerned the balance of powers and constitutional structure and granted certiorari. Id. The Supreme Court found that because Article 2 of the Third Geneva Convention allots the full protections available to cases of armed conflict or declared war which may take place between two or more of the contracting nations, the conflict with al Qaeda cannot be afforded with the full protections of the Third Geneva Convention. Id. at 628. Al Qaeda cannot be considered a contracting nation or party to the Third Geneva Convention, and because the conflict in which Hamdan was captured involved al Qaeda, he cannot be given protection under Article 2. Id. at 629. Even if the conflict is not one between signatories, Article 3 applies. Id. Conflicts of noninternational character which occur in the territory of one of the High Contracting Parties are to be bound by Article 3 as a minimum. Id. Therefore, those individuals who are not signatories to the Third Geneva Convention or who do not belong to signatory nations or "powers" fall under the provisions of Article 3. Id. Article 3 is thus applicable to Hamdan. Id. at 631.

(26.) See id. at 629 (providing Court's interpretation of Article 3 and its reasoning). The Court says that Article 2 covers conflict between nations, any armed conflict between signatories, and signatories must follow the Conventions even if another party to the conflict is not a signatory party. Id. at 630. In contrast, Article 3 falls short of providing the full protection of the Third Geneva Convention, and it applies to individuals who are linked with neither a nonsignatory nor a signatory involved in a conflict in a signatory's territory. Id. But cf. Fionnuala Ni Aolain, Hamdan and Common Article 3: Did the Supreme Court Get It Right?, 91 MINN. L. REV. 1523, 1536-38 (2007), http://www.minnesotalawreview.org/wp-content/uploads/2011/11/NiAolain_Final.pdf (assessing opposing view of application of Article 3 in Hamdan). According to Aolain, the majority in Hamdan failed to adequately address the defendant's status. Id. at 1525. Aolain raises the possibility that "the nature of the relationship between the Taliban and al Qaeda in Afghanistan was such as to create an agency relationship between them," which might implicate a certain status to al Qaeda members who were captured by U.S. forces in Afghanistan. Id. at 1536. If this was determined, the defendant's status in Hamdan could have been clarified. Id. Aolain states that the Court should have looked at whether the conduct of al Qaeda was attributable to Afghanistan under international law. Id. at 1537. Aolain mentions courts that have used other tests to determine the status of groups operating within territories, such as a "control" test or "effective control" test, which address the state's responsibility to this group. Id. Aolain notes that the defendant's status was not determined by the Court. Id. at 1538. Aolain later notes that once a court has determined that Article 3 applies, there is no requirement to determine a combatant's status. Id.

(27.) See Hamidullin, 888 F.3d at 65 (explaining primary issue of case). The Court's decision clarifies noninternational armed conflict and international armed conflict in the context of the Third Geneva Convention. Id.

(28.) See id. at 69-71 (providing Court's characterization of War in Afghanistan from 2001 to 2009). In 2001, the conflict in Afghanistan arose between two or more signatories of the Third Geneva Convention--specifically, the United States and Afghanistan. Id. at 69. The conflict began between the Afghan government, controlled by the Taliban, on one side, and the United States and its coalition partners on the other side. Id. When the Taliban lost power of the government in Afghanistan in 2002, it was replaced by a new government which requested that the United States stay in Afghanistan to assist in combating the ongoing Taliban insurgency. Id. Afghanistan consented and supported the United States' involvement against the Taliban and al Qaeda, meaning this was no longer an issue between two opposing states or countries. Id. at 70. Thus, by 2009, the conflict shifted to a noninternational armed conflict between the United States and the Taliban rebels. Id. at 69. Hamidullin's argument also fails because the issue of whether he would be a POW as a Taliban fighter is trumped by the fact that the War in Afghanistan was no longer an armed conflict of international character when Hamidullin launched his attack. Id. at 75.

(29.) See id. at 70-71 (explaining noninternational conflict in Afghanistan governed by Article 3). The Court emphasized that once the Taliban was removed from power, no country recognized it as a legitimate government of Afghanistan; so, under the Third Geneva Convention, the conflict in Afghanistan was a noninternational conflict. Id. at 70. The International Committee of the Red Cross supports this interpretation, noting:
As the armed conflict does not oppose two or more states, i.e. as all
the state actors are on the same side, the conflict must be classified
as international, regardless of the international component, which can
at times be significant. A current example is the situation in
Afghanistan (even though the armed conflict was initially international
in nature).


Id. (quoting International Humanitarian Law and the Challenges of Contemporary Armed Conflicts 10, INT'L COMM. OF THE RED CROSS (2011)). Also, "[t]his conflict [against the Taliban and al Qaeda] is non-international (sic) ... because it is being waged with the consent and support of the respective domestic authorities and does not involve two opposed States." Id. (second alteration in original) (quoting International Humanitarian Law and the Challenges of Contemporary Armed Conflicts 7, INT'L COMM. OF THE RED CROSS (2007)). The Court followed the Supreme Court's precedent in Hamdan, by distinguishing Article 2 from Article 3 of the Third Geneva Convention. Id. at 68 (citing 548 U.S. 557, 628-29 (2006)). Article 2 applies when there is a "clash between nations," whereas Article 3 allots "some minimal protection, falling short of the full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory 'Power' who are involved in a conflict." Id. (citing Hamdan, 548 U.S. at 628-29). The Supreme Court also found that in 2009, the War in Afghanistan was a noninternational conflict. Id. at 69 (citing Hamdan, 548 U.S. at 557). At the time of Hamidullin's offense, the conflict in Afghanistan was a noninternational conflict, meaning Article 3 applies. Id. at 71.

(30.) See Hamidullin, 888 F.3d at 71 (providing Hamidullin's entitlements under Article 3 of Geneva Convention). Under Article 3, there is no provision that entitles combatants who have been captured with POW status and therefore, there is no provision that provides them with combatant immunity. Id. Accordingly, there is no process to determine whether Hamidullin is a POW or not, and he is not entitled to combatant immunity, which means that he can be sentenced in a "regularly constituted court". Id. The U.S. federal district court is a "regularly constituted court[,]" which means that the Fourth Circuit Court of Appeals did have jurisdiction in this decision and in sentencing him. Id.

(31.) See id. at 71 (providing Court's classification of armed-conflict as noninternational conflict). The conflict in which Hamidullin was involved occurred when the War in Afghanistan was considered to be a noninternational conflict. Id. At this time, the conflict against al Qaeda and the Taliban could not be considered an international conflict because the conflict took place with the support of the authority present and there was no involvement of two opposing nations. Id. See also RULAC Project, Non-international armed conflict, supra note 15 (specifying application of noninternational conflict in terms of Conventions). A noninternational conflict occurs when there is "protracted armed violence taking place, meaning a certain level of intensity of armed violence" and "the actors taking part in it must exhibit a certain degree of organization." Id. Where there is merely an "internal strife or civil disturbance," this does not meet the threshold of noninternational conflict. Id. See also Corn, supra note 17, at 255 (articulating meaning of noninternational conflict). When there is a conflict between states and nonstate groups, it can be classified as a noninternational conflict. Id.

(32.) See Hamidullin, 888 F.3d at 66-68 (finding Third Geneva Convention applicable). The Geneva Conventions have been signed, ratified, and adopted by every country globally, including the United States, and thus, they "have the force of law in the United States." Id. See also PICTET COMMENTARY, supra note 1, at 5-6, 23 (explaining how far Third Geneva Convention extends to protect). The Third Geneva Convention protects those involved during times of armed conflict. Id. at 23. The length of the conflict, how many casualties there are, how many forces are involved are all immaterial; all that there needs to be for the Third Geneva Convention to apply is an armed conflict between parties. Id. The goal of the Third Geneva Convention was to refine the previous convention, the 1929 Convention, and add better protections for soldiers. Id. at 5. Under the Third Geneva Convention, the meaning of POW was expanded to encompass a greater range of combatants to guarantee more humane treatment. Id. at 5-6. See also The Geneva Conventions of 1949 and their Additional Protocols, supra note 1 (highlighting universal application of Third Geneva Convention applies). Between 1950, when the Geneva Conventions entered into force, and present day, the Third Geneva Convention has been ratified by all countries worldwide. Id.

(33.) See Hamidullin, 888 F.3d at 66-72 (recognizing primary issue of case). Hamidullin argued that he should be protected from prosecution under the doctrine of combatant immunity under the Third Geneva Convention, which is provided to POWs. Id. at 66. Article 2 of the Third Geneva Convention provides the full protections of the Geneva Conventions and is applicable to armed international conflict. Id. "If Article 2 is applicable, then the Third Geneva Convention provides lawful combatants who are captured in such a conflict are considered prisoners of war." Id. Article 3 governs noninternational armed conflicts. Id. at 67. Combatants who fall under this are entitled to much less protections. Id. In order to address Hamidullin's argument properly, the Court needed to determine if the conflict with which Hamidullin was involved was an international armed conflict or a noninternational armed conflict. Id. at 69.

(34.) See PICTET COMMENTARY, supra note 1, at 23 (explaining scope of Third Geneva Convention protections). If the parties to an armed conflict denied the existence of a state of war, they could still not prevent the Geneva Conventions from applying. Id. The Geneva Conventions are meant to protect individuals - their purpose is not to serve the states. Id. Article 3 can apply in the event that there is debate about whether there a state of war exists. Id.

(35.) See Hamidullin, 888 F.3d at 65-75 (denying Hamidullin classification under Article 2 and POW status). Hamidullin argued that he was protected from prosecution because he had combatant immunity as a POW under Article 2 of the Third Geneva Convention. Id. at 65. The Court found that the Taliban did not qualify as a state or High Contracting Party under Article 2; therefore, the armed conflict in which Hamidullin was involved could not be considered international. Id. at 74-75. Consequently, Article 2 did not govern Hamidullin's protections, he was not considered a POW, and he could not be barred from prosecution under combatant immunity. Id. at 72-75. See Lindh, 212 F. Supp. 2d at 546-47, 552-54 (specifying Article 2's appropriateness to Lindh's case). Lindh trained with al Qaeda and participated in missions in support of both the Taliban and al Qaeda, even after the September 11, 2001 terrorist attacks. Id. at 546. Soon after the September 11, 2001 terrorist attacks, Lindh surrendered and was taken to be interviewed by two Americans. Id. at 547. Lindh claimed that he was a lawful combatant as a member of the Taliban, and as such, he should be protected by combatant immunity. Id. at 552. The court denied Lindh combatant immunity status because the conflict was not international due to the structure of the Taliban. Id. at 553. See also PICTET COMMENTARY, supra note 1, at 19-23 (providing extent that Article 2 extends does not cover Hamidullin). The protections of Article 2 apply to conflicts or declared wars between two or more High Contracting Parties, even if one of the parties does not recognize the state of war, and when one of the parties is not a contracting party. Id. See also Third Geneva Convention, supra note 1, art. 2 (articulating language of Article 2).

(36.) See Hamidullin, 888 F.3d at 65 (providing Hamidullin fought alongside Taliban). Hamidullin supported both the Taliban and the Haqqani Network and fought alongside them. Id. at 65. See Lindh, 212 F. Supp. 2d at 551-53 (explaining Lindh's association with Taliban). Lindh trained with al Qaeda and fought with the Taliban. Id. at 551. Lindh also continued to fight with al Qaeda even after the September 11, 2001 terrorist attacks, until he eventually surrendered. Id. at 553.

(37.) See Lindh, 212 F. Supp. 2d at 554-58 (explaining Taliban's lack of structure and associated consequences). The court explained that the Taliban failed to have the appropriate form and structure necessary to qualify as a state. Id. at 558. Additionally, the Taliban did not operate as "regular or irregular armed forces" because it failed to have any hierarchical military structure, failed to practice and follow the laws and customs of war, and lacked uniforms or anything to set themselves apart from regular civilians. Id. at 554, 557-58. The court concluded that because a lawful combatant immunity is only allotted to "members of regular or irregular armed forces who fight on behalf of a state," the Taliban did not meet the characteristics necessary to have combatant immunity. Id. at 554, 558.

(38.) See Hamidullin, 888 F.3d at 74 (explaining why Hamidullin's associated groups were unlawful combatants). The Court assessed the structure and operations of the Taliban and the Haqqani Network under the Third Geneva Convention. Id. at 74-75. The Court applied the categories of lawful combatants under Article 4 of the Third Geneva Convention to determine if the Taliban or the Haqqani Network could be considered lawful combatants. Id. Neither the Taliban nor the Haqqani Network fell within any of the six categories listed under Article 4 of lawful combatants. Id. The difference between lawful combatants and unlawful combatants is that both are subject to capture as POWs, but unlawful combatants are also allowed to be tried and punished for acting unlawfully as belligerents. Id.

(39.) See id. at 66 (explaining Article 2 of Third Geneva Convention). Article 2 provides all of the protections offered by the Geneva Conventions. Id. Specifically, Article 2 grants combatant immunity to lawful combatants who have been captured in an international conflict and are then considered to be POWs. Id. See also PICTET COMMENTARY, supra note 1, at 19 (discussing application of Article 2). The Third Geneva Convention applies to High Contracting Parties and noncontracting parties who are in an armed conflict, even if one of the parties does not recognize the Third Geneva Convention. Id. See also Third Geneva Convention, supra note 1, art. 2. (providing text of Article 2).

(40.) See Hamidullin, 888 F.3d at 68-70 (providing Court's reasoning and legitimacy of Article 3 application). The Court cited to Hamdan, which made the same conclusion distinguishing between the application of Article 2 and the application of Article 3. Id. at 68. Article 2 governs conflicts between nations, while Article 3 is applied to individuals associated with "neither a signatory nor even a nonsignatory 'Power' who are involved in a conflict." Id. There, the Supreme Court concluded that the War in Afghanistan was not a conflict of international character by 2009. Id. at 69. Additionally, the Court cited to the International Committee of the Red Cross in its reasoning. Id. See also PICTET COMMENTARY, supra note 1, at 3 (explaining creation of Geneva Conventions and Third Geneva Convention). The creation of the Geneva Conventions was initiated by the International Committee of the Red Cross to regulate and ensure legal protections to those involved in armed conflict. Id. at 3.

(41.) See Hamdan, 548 U.S. at 568-71 (providing Hamdan's argument for full protections of Geneva Conventions). After discovering that the Taliban worked alongside al Qaeda, and their orchestration of the September 11 terrorist attacks, President George W. Bush ordered the invasion of Afghanistan. Id. at 568. Hamdan was captured and detained in November 2001 and transferred to Guantanamo Bay as a Yemini National. Id. at 566. Hamdan was held without being charged for a year, and then challenged the military commissions. Id. at 571. Hamdan argued that he should be protected under the Third Geneva Convention. Id.

(42.) See id. at 629 (determining Article 3 applies to al Qaeda). Al Qaeda cannot be considered a contracting nation under the Third Geneva Convention. Id. Al Qaeda cannot be allotted the full protections of the conventions and therefore, cannot fall under Article 2 of the Third Geneva Convention. Id. Additionally, other terrorist groups similar to al Qaeda will also fall under Article 3. Id. Conflicts which occur in the territory of one of the High Contracting Parties and are of noninternational character are bound by Article 3. Id. at 630. Individuals who are not signatories to the Third Geneva Convention and do not belong to a signatory nation will therefore fall under Article 3. Id.

(43.) See Hamidullin, 888 F.3d at 69-71 (asserting Article 3 applies to Hamidullin). The War in Afghanistan was an international conflict when it began in 2001, as it arose between two or more signatories to the Third Geneva Convention--the United States and Afghanistan. Id. at 69. "The conflict in Afghanistan began in 2001 as an international armed conflict arising between two or more Third Geneva Convention signatories - it was a conflict between the United States and its coalition partners on one side, and the Taliban-controlled Afghan government on the other." Id. After the Taliban lost control of the government in 2002, a new government was put in place in Afghanistan which asked the United States to remain in Afghanistan to assist with fighting the Taliban insurgents. Id. Afghanistan encouraged the United States' support against the Taliban insurgency, which meant there was no longer a conflict between the United States and Afghanistan. Id. In 2009, the conflict in Afghanistan could no longer be considered an international conflict. Id. at 69. Hamidullin's status as a POW need not be assessed because, regardless of the Taliban's status, the War in Afghanistan was a noninternational conflict at the time of Hamidullin's capture, making POW status unavailable. Id. at 75. Moreover, Article 3, governing noninternational conflict, is the appropriate provision to govern Hamidullin. Id.

(44.) See PICTET COMMENTARY, supra note 1, at 23 (explaining parties' recognition of armed conflict not required under Third Geneva Convention). Article 3 applies when there is a conflict not between nations. Id. If the two parties do not acknowledge that there is a conflict, Article 3 will still apply to protect the individuals involved. Id.
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