01 Nov UK Supreme Court Rejects Jack Goldsmith’s Interpretation of GC IV
I blogged late last year about the UK Court of Appeal’s judgment in Secretary of State for Foreign and Commonwealth Affairs v. Rahmatullah, which implicitly repudiated a little-known OLC memo written by Jack Goldsmith that concluded “operatives of international terrorist organizations” are not “protected persons” for purposes of Article 49 of the Fourth Geneva Convention — a provision that prohibits “[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… regardless of motive.” The UK Supreme Court issued its judgment in the case yesterday. Unlike the Court of Appeal, the Supreme Court explicitly rejected Goldsmith’s argument:
33. Mr Eadie pointed out, however, that the same opinion from Mr Goldsmith expressed the unequivocal view that Al-Qaeda operatives found in occupied Iraq are excluded from “protected person” status. That opinion seems to have been based on a narrow interpretation of the qualifying phrase “find themselves” as applied to those who come to be in Iraq at the material time. The presence of such as Mr Rahmatullah in Iraq could not, Mr Goldsmith suggests, be attributed to happenstance or coincidence. He was therefore not a protected person under the convention.
34. It is not necessary to deal with this argument, although, if it were, I would have little hesitation in dismissing it. To make happenstance or coincidence a prerequisite of protection seems to me to introduce a wholly artificial and unwarranted restriction on its availability under the convention. But, in any event, the position of the UK government, as evidenced by the Joint Service Manual, is plainly at odds with the stance taken by the US as to the application of GC4 to members of Al-Qaeda. This is confirmed by a statement in a report by Intelligence and Security Committee on The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq: (2005) Cm 6469. At para 8 of that report it is stated that, “the UK regards all personnel captured in Afghanistan as protected by the Geneva Conventions”. Against this background it is simply not open to the Secretaries of State to suggest that the convention does not apply on the basis that Mr Goldsmith has advanced.
35. Given that GC4 does apply to Mr Rahmatullah, how does that bear on the legality of his detention? Article 49 forbids the forcible transfer of protected persons from the occupied territory, in this case Iraq. It provides: “Individual 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 their motive.”
36. The, presumably forcible, transfer of Mr Rahmatullah from Iraq to Afghanistan is, at least prima facie, a breach of article 49. On that account alone, his continued detention post-transfer is unlawful.
Rahmatullah continues to be detained by the U.S. — illegally, as the U.K.’s highest court has now made clear.
The Goldsmith memo facilitated the Bush “program” of “coercive” interrogation and was manifestly in error. See, e.g., 43 Valpo U. L. Rev. 1535, 1567-68 (2009), available at http://ssrn.com/abstract=1331159 and see Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror 18, 30, 163 (Cambridge Univ. Press 2007).
One is reasonably accused when one engages in intentional conduct, writing a memo, when one knows or is aware that that conduct can or will facilitate the conduct of a direct perpetrator. Ignorance of the law, of course, is no excuse and a facilitator does not have to know the names of the direct perpetrators or be physically in contact with such perpetrators. Consider also United States v. Altstoetter (The Justice Case) and the memo writers from the German Ministry of Justice.
Note also that unlawful transfer of a civilian from occupied territory is a “grave” breach of GC IV.
Boom! Will folks get the significance of this further memo’s repudiation?
Best,
Ben
Thank you, Mr. Heller, for drawing the attention to this interesting judgment. However, I find The Court reasons very short and unconvincing (maybe because in the circumstances of the case it was not necessary to decide on this question). On the other hand, I find Mr. Goldsmith’s memo presenting a well-reasoned case. The UK Supreme Court views that as an artificial reading of the convention. With all due respect, I think it is not only artificial, but also against common sense to claim that a foreign militant infiltrating an occupied territory and caught wins a right to stay in this territory, without having any linkage of residence or nationality to it. The funny thing is that the Israeli Supreme Court decision mentioned as contrary to the conclusion in the memo indeed includes militants-infiltrators in the definition of “protected persons” under article 4 of GC4. However, this is done only to underline that interpreting article 49 as prohibiting individual deportations of protected persons without any reservations will bring inability to deport foreign spies or saboteurs, before or after serving their sentence. The majority in the court views this outcome as departing from reason or common sense (Affo v. Commander Israel… Read more »
Dear Col Libman,
Very interesting comment. Can I ask, what legal basis under IHL/LOAC would you point to for the authority to detain a foreign militant who is not a GC3 PW [ie,the kind of person the subject of this post]? I have normally pointed to GC4, but I wonder if you have other suggestions.
sincerely,
Ian
Dear Ian, Thank you for your comment and question. I have noticed lately, generally speaking, that IHL does not use a language of authorizations but rather the language of prohibitions. I think an “administrative law” approach to IHL, contending that everything that is not specifically permitted is forbidden is not appropriate here (obviously, the opposite approach, stating that everything that is not prohibited is allowed is equally wrong). Actually, looking at GC3 I did not find a clause authorizing capture and detention, just clauses determining how PoW’s must be treated. Therefore, I would not expect to find an explicit authorization for capture and detention of militants without PoW status either. I guess the right to capture enemy fighters is just a part of customary IHL. Furthermore, the reason I am very grateful for your question is that while scanning the different instruments of IHL again, I found what, at first glance, looks to me like a decisive blow on the view that a combatant captured must be classified as a PoW under GC3 or as a “protected person” under GC4. Take a look at article 45(3) of AP1: “Any person who has taken part in hostilities, who is not entitled to… Read more »
I am inclined to agree with your point about how to approach authorisations/prohibitions in IHL. As a general principle, I would say anything required by military necessity is permitted, subject to any specific or general rules, and always the Martens clause. The obvious example being there is no rule in either Hague or Geneva treaties authorising attack on enemy combatants but no one doubts it is permitted.
Art. 45(3) API is certainly interesting. The ICRC Commentary on API even refers to ‘aliens in the territory of a Party to the conflict who may have taken part in hostilities (see para 1761). Time does not permit me to run this issue to ground, but it certainly appears as though the simple dichotomy of PW under GCIII of protected person under GCIV may not be correct.
I quite like your article. Many interesting issues covered. I brought it to the attention of my superiors as we are reviewing our own legal structures and relationship to commanders.
Article 49’s prohibition is straightforward: “Individual … forcible transfers … of protected persons from occupied territory … [is] prohibited, regardless of motive” — sophistry aside. IV Commentary of the ICRC: “The prohibition is absolute and allows of no exceptions, apart from those stipulated in paragraph 2.” And, of course, anyone who is detained and is not a prisoner of war has protections under the Geneva Civilian Convention — there are “no gaps” with respect to status. See also U.S. Dep’t Army, FM 27-10, at 31, para. 73.
Dear Jordan, My claim was not about the scope of article 49. For the purposes of this discussion, I am willing to agree that article 49 is absolute. However, article 49 applies only to “protected persons” as defined in article 4 of GC4. As to the interpretation of article 4 I think that an interpretation including foreign members of organized armed groups brings such absurdities as a “right” not to be deported from a territory to which the infiltrator has no legitimate ties. On the other hand, I think that not being protected by GC3 or GC4 is not to be “outside the law” and there are still satisfactory guaranties for a humane and fair treatment of the detainee. On this last (and only) issue, I thank you for drawing my attention to the US army Field Manual. Indeed, the paragraph you mentioned does support your point. It is interesting that Mr. Goldsmith, US Assistant AG, did not tackle this source in his opinion. However, the position in the FM is not explained and certainly, it does not bind anyone outside the US Army. Since it is clear now that the practice of the US was different, maybe there is… Read more »
Well, Liron, protected persons facially also include persons protected under common article 3, and what is reflected therein is customary international law applicable in all armed conflicts (i.e., not merely during an insurgency). There is no limitation of protected person status under Art. 3 once the person is detained (e.g., persons of any status are covered). Art. 3 as C.I.L. should be relevant to interpretation of Art. 49. Article 4 has categories that might relate, for example, to members of al Qaeda who are nationals of Saudi Arabia, Iraq, Jordan, Afghanistan, Pakistan. When a member of al Qaeda, for example, was “in the hands of” the U.S. in Iraq or Afghanistan the first unnumbered para. in Art. 4 applied. The second unnumbered para. in Art. 4 merely excludes nationals of a “neutral State” while they are “in the territory of” the U.S. Therefore, they remain protected persons while they are detained outside the U.S. Additionally, there is no limitation of protected person status because they had been DPH (e.g., unprivileged civilian al Qaeda fighters who had been directly participating in hostilities), a “terrorist,” a jerk, or whatever. There are many citations to other materials for these points, e.g., IV Commentary on the… Read more »
Sir, I really appreciate the time and patience you took to give me such a comprehensive response. I am afraid I still have some reservations, which I shall elaborate soon, but first, I find it important to emphasize the common grounds we have. I want to reiterate what I said from my first comment here: torture and other forms of inhuman treatment are absolutely forbidden, whoever the detainee is and wherever he is held. I suspected from the start that this memo might have a wider context, which I know little about. From a glance at your book, I understand a little more. Your book seems to be a good addition to a list of reading materials on lessons to be learned by government and military legal advisors. If a deportation was made for enabling torture it is wrong because of this purpose, but that does not necessary mean that the deportation itself is a wrong. My, somewhat narrow, interest here, is in the legal question of applicability of GC4 to foreign members of organized armed groups, infiltrating an occupied territory to fight, and captured by the occupying power. I agree that common article 3 will protect every detainee, regardless… Read more »
Liron: yes, there is general agreement on several points and you seem to be correct in focusing finally on the lst para. of GC 4 and noting that there are at least two theoretical possibilities re: “find themselves” “in the hands of” but note the phrase “in any manner whatsoever.” I accept the straightforward inerpretation of the text approach: any person who is detained will “find” himself in the hands of the detaining power. And we want to also consider the object and purpose of the Geneva Civilian Convention in addition to the text of Art. 49 (and other textual provisions, such as common arts. 1 and 3 — 3 now that it reflects C.I.L. in int’l armed conflicts as well). It can’t imagine that object and purpose leads us to find a gap in protection for a person of any status who “finds” himself in the hands of a detaining power in occupied territory (no matter how he/she got there). I think that it is the only logical, textually-attentive, and policy oriented interpretation. And, in any event, this seems to reflect the generally shared opinio juris concerning interpretation of the phrase.