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Originally posted by smooth
Article 5 of the convention states that, "should any doubt arise" as to whether detainees fit these categories, they "shall enjoy the protection of the present convention" until "their status has been determined by a competent tribunal".
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Additional Protocol
According to Article 43 of Additional Protocol I, "any combatant... who falls into the power of an adverse party shall be a prisoner of war".
Article 44 then clarifies the definition of the term "combatant".
According to paragraph 2, while all combatants are obliged to comply with the laws of war, violations of these rules "shall not deprive a combatant of his right to be a combatant or... to be a prisoner of war".
The only exceptions to this are in relation to the use of clothing and symbols to make combatants identifiable.
Paragraph 3 recognises that it is not always possible for combatants to distinguish themselves from the civilian population, as they are obliged to do under international law.
It states that a fighter "shall retain his status as a combatant, provided that, in such situations, he carries his arms openly" during each military engagement and while visible to the adversary while preparing to attack.
According to paragraph 4, if he fails to do this, he forfeits his status as a POW, but "shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war".
Precedents
Uniform and identification
Viet Cong fighters captured during the Vietnam War were eventually given POW status, despite the fact that they wore nondescript black clothing with no insignia.
Recognised regimes
Although the US did not recognise the Chinese regime diplomatically, it still treated Chinese captives from the Korean War as POWs.
Some legal experts have suggested that a distinction should be made between al-Qaeda and Taleban prisoners, as the Taleban were the military force of the de facto government of Afghanistan - even though it was only recognised by three governments - while al-Qaeda are a stateless militia.
Rules of war
While some German air squadrons broke the rules of war by attacking civilian targets during World War II, this did not discount all captured members of the country's air corps from POW status.
--http://news.bbc.co.uk/2/hi/americas/1787511.stm (emphasis added)
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Article 5 is irrelevant because of the term "should any doubt arise." Al-Qaeda members do not meet any of the terms outlined in article 4, section A, item 2. Therefore, there is no doubt, they are not prisioners of war.
As far as the term "combatant," the Geneva convention is describing legal combatants. Legal combatants are required to carry their arms openly and remain visible to the advarsary while preparing the attack. Al-Qaeda does neither, therefore they are not legal combatants, but illegal combatants. Hence the term being used by the US Government.
Viet Cong fighters were the officially recognized militia of North Vietnam, so they actually fell under article 4, section A, item 1 of the Geneva convention.
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Geneva Convention
Article 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
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.
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Even though the United States didn't recognize the Chinese Regime during the Korean war, Chinese soldiers were POWs because they were protected by article 4, section A, item 3.
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Geneva Convention, Article 4, Section A
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
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Yes, German bomber pilots did break the rules of war by bombing civilian targets, but the Geneva Convention was adopted on August 12th, 1949. Germany surrenderded on May 8th 1945 so that precedent would be obsolete under the current convention.