UK Supreme Court Rejects Jack Goldsmith’s Interpretation of GC IV

by Kevin Jon Heller

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.

http://opiniojuris.org/2012/11/01/uk-supreme-court-rejects-jack-goldsmiths-interpretation-of-gc-iv/

11 Responses

  1. 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.

  2. Boom! Will folks get the significance of this further memo’s repudiation?
    Best,
    Ben

  3.  
    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 Defence Force in the West Bank, p. 29-31 in the Hebrew original). The mirror image of this reasoning is Judge Bach’s separate opinion: He thinks that individual deportations are absolutely prohibited under article 49. Since he, too, probably thought it will be an absurd to prohibit deporting foreign spies and saboteurs, he raises the possibility to interpret article 4 as excluding persons willingly infiltrating into the territory with malicious intentions. He did not have to decide on this point since in the specific case the appellants were all residents of the occupied territory (p. 75-76).
    One does not have to agree with the Court’s view in Affo. Much later, in 2008, when reviewing the Israeli Internment of Unlawful Combatants Law, 5762-2002, the Israeli Supreme Court held very clearly that unlawful combatants are protected persons. The Court stated that “every person who finds himself in the hands of the opposing party is entitled to a certain status under international humanitarian law – the status of prisoner of war, which is governed by the Third Geneva Convention, or the status of protected civilian, which is governed by the Fourth Geneva Convention“. The Court relied on the ICRC commentary when quoting:  ‘There is no “intermediate status”; nobody in enemy hands can be outside the law(O. Uhler and H. Coursier (eds.), Geneva Convention relative to the Protection of Civilian Persons in Time of War: Commentary (ICRC, Geneva, 1950), commentary to art. 4, at page 51). See CrimA 6659/06 A & B v. the State of Israel, para. 12, available at: http://elyon1.court.gov.il/files_eng/06/590/066/n04/06066590.n04.pdf.
    I think that not leaving any person outside of the protection of the law is indeed an essential consideration when interpreting the law. However, it does not necessarily require applying GC3 or GC4 in these circumstances. There is a lot of “law” outside the GC. For instance, there is always the Martens clause (“Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”)
    It is also clear today that torture of an internee is prohibited under customary international law, whatever his status is and wherever the internee is held.
    I admit I have only general knowledge of the “torture memos” and I do not have any knowledge of possible nexus between these memos and the one discussed here. However, looking on this memo at face value, I think seeing it as a bad and foundless legal advice is not fair.
    Response…

  4. 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

  5. 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 prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.”
    Isn’t it clear from the text that a situation that a combatant is neither under the protection of GC3 nor under the protection of GC4 was envisioned and recognized?  Moreover, such a person is in no way “outside the law” since he is entitled, under AP1 to the fundamental guarantees of article 75.
    In my opinion, it shows that you can meet the concern of securing human and fair treatment of such a detainee, without necessitating the strange outcome of a prohibition of deportation of a foreign militant infiltrating the occupied territory under article 49 of GC4.
    I am very interested to hear your opinion.
    By the way, I find your article recently published in the Military Law and the Law of War Review very interesting. Perhaps we will discuss it sometimes.
    Best regards,
    Liron
     
     
     

  6. 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.

  7. 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.

  8.  
    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 broader lesson here: not to “transform” too easily the content of military manuals to customary law, as the ICRC customary IHL study does very often.
     You did not explain how this theory of GC3 and GC4 being mutually inclusive align with article 45(3) of AP1 I mentioned. So, for now, saying “and, of course, anyone who is detained and is not a prisoner of war has protections under the Geneva Civilian Convention” is not enough to convince me.
    Sincerely,
    Liron
     

  9. 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 GC (ICRC 1959), UK Manual; Henckaerts & Doswald-Beck, etc. — see my book Beyond the Law… and the Valpo article noted in my response above.  Art. 4 also notes that Part II of GC is broader in scope.  Arts. 13 and 16 are in fact broader in scope re: members of populations at war and who, for example, are exposed to grave danger (such as being sent off to another country predicatably for torture, even if only temporarily — which was another facially improper Goldsmith attempt to limit protection– e.g., only temproarily).
    Geneva Protocol I, art. 45(3) refers to persons who are not pows and a circ. where they do not benefit from more favourable treatment in accordance with the Fourt Convention (which favourable treatment is what I address above).  It does not state that a detaining power can transfer them out of occupied territory for torture or cruel, inhuman, or degrading treatment [which would also violate the CAT, ICCPR, relevant C.I.L., jus cogens norms, etc. in any event — which the Goldsmith memo did not address].  You were correct to note that no detained person is outside the protections of Protocol I, art. 75.
    I would add that “combatant” is a magic term.  Combatants are members of the regular armed forces of a party to an international armed conflict and they will have “combatant immunity” for lawful acts of war and pow status under either GPW Art. 4(A)(1) or (3) (with membership being the sole criterion).  Al Qaeda types are not likely to be members of the regular armed forces of a party to an international armed conflict and are, therefore, unprivileged fighters (which is not a war crime, but which means that they are not “combatants” and do not have “combatant immunity” and that they can be rightly prosecuted under some relevant domestic law for murder, etc.).

  10. 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 of status, in a non-international armed conflict. However, I do not think this affects the definition of “protected persons” in article 4, which apply, like the rest of GC4, only to international armed conflicts (article 2). Of course, if you are bind by AP1, you will have similar and even more elaborated obligations towards all detainees in an international armed conflict under article 75. I am also willing to agree, for the purpose of this discussion, that common article 3 and article 75 of AP1 reflect C.I.L and, as such, bind all belligerents. As I said, I do not have a problem with these guarantees, but none of this necessitates the application of GC4.
    I do not claim that no person perpetrating a hostile act is protected by GC4. If a person is initially a protected person, for instance, an inhabitant in an occupied territory, the fact that he becomes a DPH does not remove him from the protection of GC4, it only allows the derogations of article 5.  However, again, I am focused on foreign fighters.  
    You have mentioned part II of GC4 and I find it an interesting point. Indeed, that part seems to have a wider scope that the rest of GC4 (article 13). However, I fail to understand how this can teach us about the scope of the rest of GC4. Seems to me this part actually support my thesis, since it is clear that when the drafters of the convention wanted to be very inclusive, they expressed it clearly, and this expression is limited to  article 13-26 that do not deal with detainees or deportations.
    Another point I want to add: look at the last paragraph of article 4. This paragraph says: “persons protected by GC1 or by GC2 or by GC3 shall not be considered as protected persons within the meaning of the present convention“. If the intention was that GC4 will include every person not protected by other GC, why not simply say that “every person not protected by GC1 or by GC2 or by GC3 will be considered a protected person within the meaning of the present convention”?  
    If I understood correctly your interpretation of article 45(3) of AP1, you understand the words “and who does not benefit from more favourable treatment in accordance with the Fourth Convention“, not as envisioning a person without protection under GC4, but rather a person without the protection of part II of the Convention, thus not negating its overall applicability. However, part II is wider in scope than the rest of GC4, how can someone be outside this part but still a protected person under the rest of the GC4?
    Back to the basics: I think the core issue is the interpretation of the first paragraph of article 4 (“Persons 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.”). I think the narrow interpretation that Mr. Goldsmith in his memo gave to the words “find themselves” is a reasonable interpretation that avoids what I see as absurd consequences of applying GC4, without losing any fundamental protection a detainee, regardless of status, must have. I acknowledge the fact that your (and others) more inclusive interpretation, reading instead of “find themselves” a simple “are” is also reasonable. Linguistically it is simpler (Occam’s razor comes to mind). Furthermore, I think Mr. Heller made a good linguistic point in his previous post, indicating that the words “find themselves” are linked to the capture, not to the mere presence in the territory and I guess armed infiltrators probably do not want to be caught. However, since interpretation is not just about linguistics, I find that such an interpretation creates as least one bizarre result, that can be avoided by the narrower interpretation without paying a price to the core humanitarian concerns.
    Thank you, again, for your elaborate response.
    Liron   
      

  11. 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.

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