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.