From CLAMO's, LL Kosovo (pp. 61-62 pdf) (
link here):
Both prior to and during the early days of the air campaign, disagreement existed within U.S. and NATO political and legal circles over whether or not LOAC applied to Operation Allied Force.[5] Because LOAC applies to international armed conflicts,[6] the precise legal issue was whether Operation Allied Force constituted an international armed conflict. It also seems apparent that political concerns entered the calculation.[7]
The debate proved more than academic when Yugoslav forces captured three U.S. soldiers conducting a security patrol along the border between the FRY and the former Yugoslav Republic of Macedonia (FYROM) on 31 March 1999, one week after NATO forces had dropped the first bombs of Allied Force.[8] At issue was the soldiers' legal status: were they prisoners of war entitled to full Geneva Convention[9] protections (as would be the case if LOAC applied); were they "detainees" entitled to some lesser status;[10] were they common criminals under host nation law; or were they something else?
The immediate U.S. political response was that the soldiers had been "illegally abducted."[11] This position quickly evolved into a curious amalgam of prisoner of war language mixed in with demands for immediate return of the soldiers (although prisoner of war status affords protections under international law, it also allows the detaining power to hold the prisoner until the end of the conflict).[12]
The ultimate U.S. position was that LOAC applied to Operation Allied Force and, accordingly, that the soldiers were prisoners of war.[13] However, by not presenting an early, united front on the status of the captured soldiers, equivocation within U.S. policy channels potentially placed the soldiers in harm's way. For example, the Serbs might have agreed with early U.S. statements that made no mention of prisoner of war status, thereby concluded that the soldiers did not have combatant immunity, and then tried the soldiers for domestic crimes.[14]
5. [JMM: very long footnote on jus ad bellum omitted; cited in note 5 and below, Major Geoffrey S. Corn & Major Michael L. Smidt, "To Be or Not to Be, That is the Question:" Contemporary Military Operations and the Status of Captured Personnel, ARMY LAW., June 1999, p.1 et seq.]
6 Common Article 2 of the Four Geneva Conventions of 1949 states that "the present Convention shall apply to
all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties." Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 2-3; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members at Sea, Aug. 12, 1949, art. 2-3; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 2-3; Geneva Convention Relative to the Treatment of Civilian Persons in Time of War, Aug. 12, 1949, art. 2-3.
7 See Kosovo AAR, supra note 5, at 257, 261.
8 For a detailed discussion of this incident and an analysis of the status of captured personnel in modern military operations, see Corn & Smidt, supra note 5, at 1.
9 Specifically, the Geneva Convention Relative to the Treatment of Prisoners of War, supra note 6.
10 The initial NATO guidance was that "detainee" would be the appropriate term for a captured member of NATO forces. See Kosovo AAR [CLAMO, Kosovo After Action Review Conference (12-14 June 2000); Transcript, note 5 of LL Kosovo] at 265.
11 The phrase was used by both President Clinton and Secretary of Defense Cohen. See Guy Dinmore & Joan Biskupic, Yugoslavia Opens Case Against 3 American Soldiers, WASH. POST, Apr. 3, 1999, at A11.
12 Department of State Spokesman James Rubin, at a press briefing held the day after the soldiers' capture, used a confusing mixture of terms, asserting that the soldiers were at once prisoners of war entitled to Geneva protections and "illegal detainees" who should be immediately released. James P. Rubin, U.S. Dep't of State Daily Press Briefing (Apr. 1, 1999).
13 On the same day that Mr. Rubin made his confusing comments, Department of Defense Spokesman Kenneth Bacon articulated what soon became the official U.S. government position: "We consider them to be [prisoners of war]. . . . By international law the Geneva Convention applies to all periods of hostilities . . . . [T]he government has decided that the Geneva Convention applies." Kenneth H. Bacon, Off. of the Ass't Sec'y of Defense (Public Affairs), Dep't of Defense News Briefing (Apr. 1, 1999). Interestingly, despite the conclusion that the soldiers were prisoners of war and thus could be kept until repatriated at the end of the conflict, the Reverend Jesse Jackson was widely credited with securing the soldiers' 2 May 1999 release as a result of the private religious delegation that he led to Serbia. ....
14 See Corn & Smidt, supra note 5, at 14-18.