British Court of Appeal Implicitly Repudiates Goldsmith Memo (Updated)

by Kevin Jon Heller

The Court of Appeal judgment orders the UK government to seek the release of Yunus Rahmatullah, an alleged member of Lashkar-e-Taiba who has been detained at Bagram since 2004, from U.S. custody.  What is particularly interesting about the decision is that it directly — though implicitly — rejects a little-known memo written by Jack Goldsmith while he was at the OLC, in which he argued that “operatives of international terrorist organizations” were not “protected persons” for purposes of Article 49 of the Fourth Geneva Convention, which provides that “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of motive.”  Here is Scott Horton, who discusses the case in detail at Harpers today:

The facts developed in the Rahmatullah case have clarified the circumstances surrounding one of the notorious Justice Department memoranda issued during the Iraq War. In March 2004, Jack Goldsmith, then head of Justice’s opinion-writing arm, the Office of Legal Counsel, was asked to give an opinion authorizing the removal from Iraq to Afghanistan of a prisoner who was to be rendered to American custody by British military authorities in the Iraqi south. Rahmatullah’s imprisonment was at least one case covered by this memo. The Geneva Conventions unambiguously forbid an occupying power like the United States from removing prisoners from an occupied country except in narrowly defined circumstances designed to ensure prisoners’ own safety. Nevertheless, Goldsmith issued an opinion arguing that they could be removed.

Later on, just as Goldsmith was seeking appointment as a tenured professor at Harvard Law School, a memorandum dated March 19, 2004, surfaced in the press. Several senior faculty members were outraged by it, and mounted an effort to block Goldsmith’s appointment, which was being advanced by the law school’s dean, Elena Kagan (now a Supreme Court Justice). Goldsmith defended himself by arguing that the memo was “never finalized,” a claim that was undermined when the Obama Administration published a finalized memo, signed by Goldsmith and dated March 18, 2004, offering a radically truncated understanding of who fell under the category of “protected persons” in the context of the Iraq War. The finalized memo was textually similar to the March 19 draft. Goldsmith also argued that the memo could not have been used to abuse anyone because “it stated that the suspect’s Geneva Convention protections must travel with him outside of Iraq,” a reference to an ambiguous footnote found at the bottom of the last page of the draft memo.

Unquestionably, the memo did attempt to justify the removal of prisoners from Iraq, notwithstanding the Geneva Conventions’ explicit prohibition of the deportation of prisoners from an occupied country. Was the memo solicited to justify Ramatullah’s removal from Iraq, and to back up U.S. assurances to the British that he would be treated consistently with the Geneva Conventions? That seems likely the case.

[snip]

Speaking for a unanimous Court of Appeal, Lord Neuberger, Britain’s second most senior judge, observed that Rahmatullah had been held at Bagram for seven years, his confinement continuing even after the United States’s military-review authority had concluded that his internment was unnecessary. No charges of any sort had ever been brought against him. Noting that article 49 of the Fourth Geneva Convention forbade transfers of prisoners from an occupied country, the court ruled in favor of the habeas application.

Goldsmith’s memo echoes many of the most problematic memos issued by the OLC during the Bush administration.  The memo centers not on the language of Article 49 of GC IV, which is quite categorical, but on Article 4, which provides that “[p]ersons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”  Goldsmith’s memo claims (p. 14) that Article 4’s “find themselves” language is ambiguous, because it is not clear whether the Article applies to all aliens in occupied territory (as Iraq was at the time), or should be read “more narrowly to suggest an element of happenstance or coincidence, and to connote a lack of deliberate action relating to the circumstances that leave the persons in question in the hands of an occupying power.”  The memo then argues, not surprisingly, that the latter reading is preferable, dismissing a contrary decision by the Israeli Supreme Court in favor of a concurring opinion in the same case and a law-review article (whose author says nothing about terrorists, but simply raises the possibility that individuals who enter occupied territory post-occupation might not “find themselves” in the hands of the occupying power).  In particular, Goldsmith’s memo concludes (p. 22; emphasis mine):

In sum, GC’s drafting history, read in context, shows that GC was designed to confer “protected person” status primarily on citizens or permanent residents of occupied territory, whether unlawful combatants or not, but not on operatives of an international terrorist organization who are in occupied territory as part of a global armed conflict…. members of an international terrorist organization in occupied territory to attack the occupying power are clearly outside the core concern of GC and are difficult to characterize as persons who “find themselves” in occupied territory.

There is, however, a fundamental problem with Goldsmith’s “narrow” reading of Article 4: it ignores the actual language of Article 4.  Article 4 does not refer to persons who “find themselves in occupied territory”; it refers to persons who “find themselves… in the hands of a Party to the conflict or Occupying Power.”  “Find themselves” thus refers to the fact of a person’s capture, not to a person’s presence in occupied territory.  That is a critical difference, because it means that it is irrelevant why the captured person is in occupied territory; all that matters is that the person is captured in occupied territory and is not a national of the capturing power.

That reading of Article 4’s “find themselves” language is straightforward, and it is obviously supported by the “at any given moment and in any manner whatsoever” language, which is designed to emphasize that Article 4 applies to any non-national captured in occupied territory.  It is thus instructive to note that Goldsmith’s memo offers — in a footnote (n. 19) — a positively Yoo-like reading of the expression “at a given moment and in any manner whatsoever”:

As we noted, Article 4 extends “protected person” status to all “those who, at a given moment and in any manner whatsoever, find themselves . . . in the hands of [an] . . . Occupying Power of which they are not nationals.” The prepositional phrase “at a given moment and in any manner whatsoever” modifies “find themselves” and therefore has no application or relevance to persons who do not “find themselves” in the hands of an Occupying Power. Thus, the meaning of “at a given moment and in any manner whatsoever” does not inform or expand, but instead depends upon and is limited by, “find themselves.” Accordingly, we do not believe this prepositional phrase provides meaningful guidance in choosing between the broad and narrow readings of “find themselves.”

Finally, the memo defends a bizarre interpretation of the “object and purpose” of the Geneva Conventions, claiming (pp. 16-17) that they were designed “to exclude from coverage those who engage in transnational armed conflict, even in occupied territory, if their representatives have rejected the burdens of the Geneva Convention system.”  That is, of course, the same position taken by the German defendants at the IMT and NMTs with regard to the 1907 Hague Convention IV and the 1929 Geneva Convention.  (The memo cites the Milch case elsewhere.)  The tribunals, not surprisingly, disagreed, with the High Command tribunal speaking for all of them when it held that the Hague and Geneva Conventions applied to the conflict regardless of which parties were signatories, because the Conventions “were in substance an expression of international law as accepted by the civilized nations of the world.”  Indeed, Goldsmith seemingly rejects the very idea that a party to an armed conflict is bound by the laws of war even if its adversary violates them — which is as close to uncontroversial as a principle gets in IHL.  In his view (p. 18), the “[t]he sounder approach is to adhere to the benefits-burdens principle embodied in articles 2 and 4—a principle that induces compliance by linking the benefits of the Conventions to acceptance of their obligations.”

The entire memo is worth a read.  You can find it here.

UPDATE: Darryl Li offers a similar critique of Goldsmith’s reasoning in an excellent 2010 article in the Columbia Human Rights Law Review.  He also identifies an additional, and in my view dispositive, problem with Goldsmith’s interpretation of “find themselves” — the fact that the French text of GC IV makes clear that the expression does not, in fact, contemplate an “element of happenstance or coincidence”:

[I]t is highly doubtful as to whether the text is ambiguous in the manner Goldsmith suggests, since the attempt to accord special meaning to the phrase “find themselves” is not supported by the plain language of the French text of the Convention, which is equally authoritative as the English version. The phrase “find themselves” in article 4 corresponds to se trouvent in the French text, a reflexive use of the verb “to find” often translated simply as “to be” in English. There are over twenty uses of the verb se trouver in the Convention which are rendered in the English as some variant of the verb “to be”—only twice is it translated as “find themselves” or some variant thereof.

You can find Darryl’s essay here.

http://opiniojuris.org/2011/12/19/british-court-implicitly-repudiates-goldsmith-memo/

15 Responses

  1. Response…

    I have never understood why Art 49 of Geneva IV doesn’t come up with regard to Guantanamo prisoners and the legitimacy of their deportation to that prison – at least the ones that were brought from actual battlefields such as Afghanistan.

    PS.Isn’t that Brooklyn Journal of International Law rather than Brookings?

  2. Thanks for the correction.  I’ve amended the post accordingly (and note the opinion of the author Goldsmith cited).

  3. To answer your question, the Gitmo detainees are protected persons under Article 4, but Article 49 only applies to protected persons in occupied territory — which Afghanistan has never been.

  4. Article 4 states: “Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.”

    Thus Afghan and Iraqi nationals are protected persons and may not be removed to Gitmo. Arabs in Afghanistan and Pakistanis like Rahmatullah in Iraq are not protected persons under the Fourth Geneva convention. They are protected through normal diplomatic relations with their countries of origin. Since Rahmatullah was a visitor to Iraq, the conventions do not prohibit his removal from Iraq, and his status is a matter of bilateral negotiation between the US and Pakistan. Curiously, if Pakistan breaks off diplomatic relations with the US, then Rahmatullah becomes a person protected under the Fourth Convention. 

    Foreign citizens who join an enemy army are protected by the Third Geneva convention regardless of their nationality.

  5. The “territory of a belligerent state” does not include occupied territory. And Pakistan was not a co-belligerent of the U.S. in the Iraq war. The memo reached both of those conclusions — correctly.

  6. Response…
    Guantanamo is not the territory of the United States.  Therefore, with respect to U.S. detainees, the exclusion in Article 4 of GC regarding “nationals of a neutral State who find themselves in the territory of a belligerent State” does NOT apply.  Moreover, the provisions of Part II apply in any event to certain persons.  Additionally, customary international law reflected in common Article 3 prohibits facilitation of torture, etc. of any human detainee of any status in an international or non-international armed conflict.
    The Goldsmith memo facilitated torture and cruel and inhuman treatment of human beings were were entitled to protection from transfer our of occupied territory for torture and cruel, inhuman treatment.  See, e.g., Jordan J. Paust, Beyond the Law: The Bush Administration’s Unlwaful Responses in the “War” on Terror 18, 30, 163 (Cambridge University Press 2007); The United States and Torture — Interrogation, Incarceration, and Abuse 288-89, 304-05 (Marjorie Cohn ed., NYU Press 2011); 2007 Utah L. Rev. 345, 360 n.39, 368 (2007), available at http://ssrn.com/abstract=1485024 ; 43 Columbia J. Transnat’l L. 811, 850-51 (2005), available at http://ssrn.com/abstract=903349
    Of course the U.S. occupied some portions of Afghanistan at some points in time — and possibly still Bagrahm Air Base.

  7. Response…
    Aussie Lawyer: yes, and see 79 Notre Dame Law Review 1335, 1363-64 (2004) — one more reason why it is improper to use GTMO military commissions — which still necessarily involve violations of international law.

  8. Response…
    Thanks, but I’m still confused. Kevin says Afghanistan wasn’t occupied, and thus “protected persons” protections of Art 49 don’t come into play.
    Howard says “Afghan and Iraqi nationals are protected persons and may not be removed to Gitmo.”

    That doesn’t answer the question of status of Afghans in Gitmo, of which there were many.

  9. Jordan, Thanks and if you have a link to that I would like it.  If it is an article of yours I probably have it somewhere.

  10. Response…
    one of mine, but no link — perhaps at Notre Dame Law Review (or Google it — “Post 9/11 Overreation and Fallacies Regarding War and Defense….”).
    By the way, the U.S. and U.K. admitted that they were occupying powers in Iraq.  The memo was written with respect to the occupation in Iraq.
    The test for occupation status is control of or power over any part of territory.  JJP. “The United States as Occupying Power Over Portions of Iraq…,” 27 Suffolk Transnat’l L. Rev. 1, 1-2, 6 (2003).

  11. The problematic nature of this Goldsmith work was I believe  the subject of a Jose Alvarez article several years ago in the Torture Symposium of the Case Western Reserve Journal of International Law.  Nice to see the Brits agree with the dubious wordgames Goldsmith was also playing.
    Best,
    Ben

  12. Hm, I would say that there are two separate but in practice inextricably intertwined issues at play here.
    One is the question whether a territory is occupied, which requires territorial control. On the other hand, a significant part of the law of occupation is applicable even without effective territorial control if the protected person finds himself in the power of the enemy state.
    See more on this functional interpretation of the applicability of the law of occupation in my recent article here:
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1883203
    (Just to smuggle in a little bit of unashamed self-advertisement…)

  13. Response…
    Tamas: thank you for this, which I am printing from SSRN.  I agree that one can be “in the hands of” (GC 4) or “in the power of” (Protocol I) a party to an international armed conflict without that party being an occupying power over the portion of territory on which the detainee or related person is situated.  GC art. 49, however, applies to any portion of a territory that is occupied.

  14. Kevin: suppose that the US had captured instead of killed Bin Laden and then carried him in the helicopter to Afghanistan. Does the convention under your reading prevent him from being sent to the US to stand trial for the crimes he committed against the US. If not, why? Pakistan is clearly not occupied, but it is the location of the enemy now. Are we allowed to remove individuals as long as our military force does not rise to the level of occupation. Once in Afghanistan, however, he is now in a country that was previously occupied and some would claim still is. Do his feet stick to the ground as soon as he sets down in Afghanistan? Clearly the convention seems to prohibit arrest and deportation of a criminal no matter how serious his crime, presumably because there is no power able to agree to extradition. This seems to be a comprehensive argument for a shoot on sight policy, since this interpretation of the Convention makes any form of law enforcement activity impossible during an armed conflict.

  15. Response…
    Howard: interesting claims.  Note that pows can be sent out for trial elsewhere, but bin Laden was not a pow despite the nonsense claim of the Obama Admin. that the U.S. is at “war” with a non-state actor that doesn’t even have the status of an insurgent.  The interesting issue you raise might involve inquiry into whether or not the compound was for a certain period of time under the power or control of the U.S., thereby meeting the power or control test for occupied territory, no matter how small or short.
    Even though the U.S. cannot be at “war” with al Qaeda, there is a real war going on in Afghanistan and the theatre of war migrated to parts of Pakistan and to bin Laden’s compound, where he was excercising some command and control functions as a civilian who was a direct participant in hostilities — that’s why the laws of war applied.
    Note also, if the U.S. is not at war with a drug lord in Mexico or with Mexico, but the drug lord starts to engage in armed attacks on U.S. nationals across the border, a U.S. capture and escort for trial in the U.S. mission could be justified under Article 51 of the U.N. Charter.  Pres. Clinton stated that the U.S. reserved the right to engage in self-defense captures in rare cases. 

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