OLC Memo: "Protected Persons" in Occupied Iraq

CO5950426
U.S. DEPARTMENT OF JUSTI
OFFICE OF LEGAL COUNSE
WASHINGTON, D.C. 20530
FACSIMILE TRANSMISSION SH]
(b)(3)
DATE: 3/E1/01-1
TO: Scott Muller
General Counsel
OFFICE PHONE:
OFFICES FAX:
FROM: Jack Goldsmith
Assistant Attorney General
OFFICE. PHONE: (202) 514-2051
OFFICE FAX: (202) 514-0539
NUMBER OF PAGES: co ye/a...
REMARKS:
Any questions please contact Dyone Mitchell or Lawan Robinson at 202-514-20S1
U.S. Department of Justice
Office of Legal Counsel
Washington, D.0 20530
March 19, 2004
CO5950426 U002
Office of the Assistant Attorney (kneral
MEMORANDUM TO:
William J. Baynes, II
General Counsel
Department of Defense
Scott Muller
General Counsel
Central Intelligence Agency .
From Jack Goldsmith
Assistant Attorney Gen
Office of Legal Counsel
Gentlemen:
Attached is the final,version of the "protected persons7 ap
izuou.
Attachment
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araviollOpium.Ppit'Autkaaq . . cOtNsF4., R. GONZALE, ..S. • ' - • • . TO THE PRESIDENT '.' • • ,. . . . . • . . ."1.'rot i cet d Persons" . in . • br-cuiiediraq _
e GeneVa COnventiOn•Rtlative to the
2; 194P, a
War (" PreteCticmnf Civilian Persons in :Trine-a ,
. • Ca") provide& "protected pert =r
certain Protections if they "find , . ' '• 'I%
.
• .theinselVe4" in occupied tearitoryOr
in the home territory of a party to an
conflict, • ,.
See GSsnev a
Coot-aim Rek4tive to the Protebfion of CiyiliatrPeraons in .gut of W o ar,.
Aug: 1 rt.4, 6 us.T. 3516; 75 UXT:S. 2.ri.' Youlave sou
pa ghtguiOnce n '
•• whether vva arli ous
.rtrs, Q s CategoricSapersons C....hired bytI.S. forces. in Occupied Iraq— and,
oPerativas --, have "piotectedperson_" Status•under GC.
Part
al
./..ef our °Pinion diScusses the gold issue of
wheenar GC "apPlierto an
•
- :. aocrcmuepda tcioonrif•loicft I orra qo.c cppation:and concludes that GC goVerns the United StateS' !...., 'Part il
and
as GC' s general criteria fordetenili.nide Protected.
person". Statits . well as the categories of persons
that Gc cicarly excludes from i4
*. definition. of In-otecied.Perions."' Part ll 'i• addresses the status of al op erativeS in
• ocenpied•Ira. It•ccincbades tklial
tia operatives captu r ed in o calpied Iraq who
ire •
Ateither citizens nor Oac
pen;aanent residontsof Iraq are not aided to "proiected PersoT
.' • '....
.• ••
•
... L - . .. The, Scope ,of Caverage of dc . . .• . . . , . • , .
Gene
. • .
GC does not apply to every conceivable armed
cases of dec
conflict. Artiele2sof GC.-- an • Garetnicelvea t h.Caot nisv •eWntoiorndse d identiCally to the corresponding provisions bleach of the Other three 7- Convtioas.`appiy': (acio innt e"uatlpl lateS only three circumstariceS in which the Geneva , • *Iiichi*. ariabbetw.een. two sor lared war tiorany other ahzied,conflidt . '.
"cases of partial of total occupatimono'roef of the Ifigh•Contiatig Parties," art. 2(1); (b) in . 2(2); or (c). the territory of a 4ighcolltracting Party,. when 'a lion-signatP6r "Porerain conflict""aceeptS and applies - the .
... provitions to( Geb" art. 2(3). .. • ••-- - . : .
the Appen
p The full text of article 44,, with ,the full text of other proirisiOns of GC referred to in this
•oinion, can bC found in dix.
•
F I 7,3.3 .
• •
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•,
The United States is currently involved in two -armed conflicts that are relevant to
our analysis: the aimed conflict with and occupation of Iraq,: and the aimed conflict with
• al .Qaeda., In this Part we analyze how article 2 applies to each conflict Independently. Considered , This analysis is-not conclusive as to.how GC applies when the two
Conflicts become intertwined, as they may when al'Qaecla operatives' Carry. on their armed
COnfliet against the United.States in occUpied Iraq: 'This latter issue is addiesSedin Part
III;. infra. • . ,
' Armed Conflict with liaq. As this office has previously explained, the armed
.conflict with Iraq began in January 1991 and continued beyond March 19, 2003, the- clate r on which President Bush ordered United States military forces to invade Iraq in responte
to Iraq's "material breach" clan earlier ceasefire agreement accepted by Iraq on April 6,'
1991. See Exec. Order NO. 13290, 68 Fed. Reg. 14,307 Mai. 20, 2603y (determining
' that the United States and Iraq are "engaged in armed hostilities"); Memorandum kr
..Alberto R. GonzaleS, Counsel to the President; and Williati J. Haynes II, General
. Counsel, Department of Defense, from John C..Yee, Deputy Assistant Attorney General, Office of Legal Counsel, *e... 'Vise Prestde*'SAuthorqy to Provide. Military. qu4mnent
to Allied 'Forces andiriasistitnce Forces in Foreign. Countriesa t 2 (May 6, 2003) (detemiining that a state of aimed conflict has existed between the United States: aiid Iraq since January 1991).
GC, In the spring of 2003, the United States and its allies defeated the Iraqi forces. ticies not itself provide criteria for deterraithg when flie oconpatam of Iraq be The rule under customary international' law that the United States is an occupying
power crier any Iraqi territory that is "actually . '. .under the authority" of the. United Ptates. See Hans.-Peter Gasser,•Prot.e'ciiim . of the Civilian Population,: in The Ifiindboolc of'Humanitaritin:Law in At' :nied.Conflicts 240-41, 243 (Dieter Fleck exl:; 1999); • :'Prose;Cutorv . Dario KordiC and *rib Ceike“Trial. Judgement), No IT-.95-14/2T, ¶y = 338-39 (ICTY 2001); see niSo RegUlatiOns Respecting.the Laws and Customs Of .W ar on J.Land, annexed to Convention (IV'):kespecting the Laws and Customs of War on Lancli Oct. . 180907, art 42(1), 36 Stat. 2277;1 BeiranS 631 Magna Regulations") (same). 2
Ap Aplying thistandard, the United States became an ocupying power no laterr than il 16; . 2003 the date on which General Toinmy Franks announced the creation of the
"Ctialition Provisional Ainhority to exercise powers Of government temporarily, and as
necessary, especially to provide , security, to allow the delivery of lurmanitariatkaid and to ,
2 the Hague RegnistionS do:not apply to the United States! conflict *itf.r and .occupation of Iraq as • a . matter of treaty law because Iraq is not a partyto the Hague Convention.. See Hague ReguLationS art. 2,
36 Stat. at•2290 ("The provisions contained:in the Regulations referred to in Article 1, as well as. in the . present ConventiOn,,do not apply except betleen Contracting Powers, and then only if all the belligerents.
.art parties to the.Convention.");.Memorandutn for Alberto R. 'Gonzales, Counsel to . the President, and
William T. Haynes II, General Counsel, Department of Defense, from John C. Yob, Deputy Assistant
Attorney Geneial•te: Authority of the President Under Domestic and International Law To Make
:Fundamental In:stitutianal Changes to the Governnuatt of Irafat 10 (Apr. 14, 2003) (stating that "the .Hague Regidations do not expressly govern the U.S. conflict with Iraq"). But as the .citations the t04:"
make clear, article 42(1) of the Hague Regulations, Wlaich provides that occupation begins "wlan tbirritorAis
actually placed under the authorityof the hostile armi," reflects customary international law.
2
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•
eliminate weapons of mass destruction:" See Tommy R. Franks, Freedom Message to the IraqiPebpla (Apr. 16; 2003).3
• Both the United States and Iraq have ratified GC.' GC governs the aimed conflict. i 'between United States 'and Iraq beeause the canflictis one betvican "High Contracting
• ' Parties" under article 2(1);:lt also governi the Us. occupation of Iraq, becal.lse the
United States' has occupied "the territory'of a High Contracting Party' under article 2(2). 5 Cf. S.C. Res.'1483 15 (2003) (calling upon "all concerned [in Iraq] to comply fidly with
: their•ohligations under international law including in particular the Geneva Conventions
Of 1949 and the Higne Regulations of 19071. • '.
. . •
Armed Conflict with al Qaeda. The United StateSiS also engaged in an armed • conflict with al Qaeda. SoaPreSident'alVtlitary OrderofNOVernber 13, 2001, § 1(a), 66
Fed. keg: 57,833 Chlternationarterioristi, inclu4ipgmenibers of al Qaida, have Carried
out attacks on United States diplomatic and military personnel and facilities abroad and
On citizens and Property. withirljthe United States on a scale that haS created a state of •
armed conflict that requires the use of the United States Aimed k7orces."); Authorization'
for Use of Military Force, Pub. L No; 107740, § 2(a);115 Stat. 224,224 (2001)
(authorizing the President "to use all neoessau and appropriate force against those
nations, organizations, or persons he determines planned, authorized, committed, .0*; aided
the terrorist attacks that occurred on September 11, 2001; or harbored such Organizations
or persons,-in order to prevent any future acts of international terrorism against the
:United States by such nations, Orgaaiiations or Persone); MeMorandum for Alberto R.
Gonzales, Counsel to the President, from Patrick IT.Philbin, Deputy AssiStant Attorney
al, Office of Legal counsel, Re: Legalityof Om Use of Militarj; C9Inntisi.lonz to Terrorists at 19-20 (Nov. 6, 2001) (concluding that the President may properly determine
that an "armed conflict" exists between the United States and al Qaeda.). " •
un" . a Itis possible, either at present or in the future;: that some areas in Iraq Might -not be .sufficiently
der the authority of the United States to satisfy thie definition of "occupation:" Ve have not been asked
to address the geographic scope of the United Statei"occupation" in this Opinion, and our analysis applies
only to the United States' conduct in those areas ofthat are "actually ... Under the authority" of the ' United States .
4 Iraq acceded to the Geneva ConveAtions on February 14, 1956, without reservations. See 2 Peter 11., Rohn, World Diaty Index 553, 555, 557, 553 (2d ed. 1983).
5 Some commentators have argued that article 2(2),refers cinty .to. occupations that (in the language of article 2(2)) "meet° with no awned resistance." See, Conanentary, IV Geneva Convention Relative to the Protection of Civilian Person: in Thne .af War 21 (Joan S. Fidel ed., 1953) *(arguing that article 2(2)
refers only to occupations that have occurred "withOut a declaration of war and without hostdities"); Adam Roberts, What is a Military' Occtipation7, 55 Brit..Y.B. Ind L 249;253(1984) (agreeing with Pictet): On this .view, article 2(1) rather than article 2(2) would trigger the application of t3C to occupatiOns, -like the . one hilt-as that grow out of an armed conflict; even though article 2(1) does not expressly refer to occupatiens following hostiliticd. See. 4 Pictet, Commentary at • •"oases in which territory is •Oceupieil• during 21 (arguing' that article 2(1) appli'es to... hostilities"); Roberts, supra at 253.(agreeing): We need not decide whether this nument is Valid.' If it is, then the occupation of Iraq satisfies article 2(1) h.ccanse-Tit _ arose .:. out of an armed conflict between contracting parties. Wit is not, then the occupation of liaq .Satiifies - article 2(2) because, astated in the text, it is an "ocupation of . territory' of a contracting party. •
F 7..3 —
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As we explain below, the drafters• of the Geneva cOnventions did not contemPlate •
' the possibility of an armed conflict betWeen a State : nd an international non-State
terrorist otganization like al Qaeda. It is thus•no surprise that, iin lib, the armed eGidlier • with Iraq, •theanned conflict With al Qaedi does not satisfy any of the:article 2 , • Prerequisites for the applicability of GC. The President has previOuSlY 4etarmided that
the conflict withal Qaeda does not satisfy article 2 of the Geneva , Convention Relative to
the Trealinent of Prisoners of War,Aug. 12, 1949;61.1.8.T. 3316; TI.A.S. No. 3364 .
("UPW") because "Al-Qaeda is not a state party to the Geneva Convention; ifis• a foreign •
terrorist grouP.". Fact Sheet: Sta6is ,of Detainees at Guantanamo, Office of the Press Secretary, The White . House (Feb. :7 ; .2002), available at .:
•lattp://wvvw.WIritehonse.gevinewsireleasest2002/02/2002020-13,html (visited onMarch . 17, 2004). Thii determination under article 2 of GPW !applies tufty' to the identically • Worded article 2 in•GC. Nonetheless ; it is usefulto review why the armed conflict Withal
Qaeda does not'satisfy article 2 and thus doed net trigge-rithe applicability of GO.
. •
•The U.S:-al Qaeda armed conflict is not "betWeen two or more of the High
• Contracting Parties" within the meaning article 2(1)6•.Al Qaeda has not signed or • rcaotxi-fied GC. Nor could it. Al Qaeda is not a State, Rather, it is a terroriat.organiy.aticn 14364 of mernberi from many nations; with ongoing military operations in in Pny nations.:, As a non-State entity, it cannot be a "High Contracting Party" to the , • .
'.'Williatit I,
SeeMem.orandtun for Alberto R. Gonzales,.Counsel tO rhe'Preikicient; and
Haynes II; General COunsel, Department of Defense; from Jay S. Bybee, Assistant ; ttorney General; Office,of Legal Counsel; LtiWs , Re: Application. of Treaties and to id Qaeiia. and Taliban Detainees at ••,an. 22,2002), Ju acIditiOiii tj.S.."-al aeda aimed conflict ha s. not resulted, in. the ."occupation of the territory of a High
Contracting Party" within the meaning of article 2(2). Asa non ,State actr, .al Qae,da any territory that could possibly be occupied. Finally, Si Qaeda is not a 'Power[] in •
conflict" that can "accept(' and apPltyr CC within the meaning of article 2(3). Sep. Draper, The Red cross Conventions 16 (1958) (aa-guing that "in the context Of
Article 2, par& 3, 'Powers' means States capable then:and there. of becoming Contracting Parties to these C..onventions .either by nAtification or by accession"•; 2B Final Record of . •the piiylomatia Conference of Gene va of 194,t 'at 10? (eiplaining that article 2(3) would
a*dGvse°r saen "obligation to recognize that the Convention be applied to the non-Contracting. State, in se far as the latter accepted and applied the provisions thereof')
(emphasis added) ("Final ReCord"); 4 Pictet,ieeironeirlai5, at 23 (using "non-Contracting
State" interchangeably with "non7Contracting•Power" and "noniContracting Party").
And in any eVent, far from embracing GC or any Other provision of the law of armed
. !Nor does the United States' conflict , with al Qaeda implicate common article 3 oftheGeneya.
oCnoen voefn tthioe nHs,i gwhh ich goVerns "armed catiflict[s]. not of an international character Occurring lathe territory of Contracting Parties." As we have previously explained, common article 3applies only to • purely internal armed Conflicts. See Metiaorandum for Alberto R. Gonzales, Counsel to the President, and' • William J. Haynes. II, General Counsel, Department of Defense, from JayS. Bybee, Assistant Attorney
General, Office of Legal Counsel, Re: 41pplication of Treatiesand Laws.to al Qaida and Talibein:Detainegi , at '10 (Jan. 22, 2002), See also infra note 2f . • •
4
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conflict, al Qaeda has "consistently acted in f•la •g rant defiance of the law•f armed
conflict! •
, In sum, plying article 2 to the two conflicts; considered independently; we
•conclude that GC applies to the -United Stites' armed conflict with and occupation of Iraq •
but doei notapply to its armed•conflict with al Qaeda. •
IL ."Protected Personi,7 in Occupied Territory
•Once GC.is deemed to "apply" to the armed conflict with.and occupation of
under article 2, article 4 of GC deftgeS a class of "(p]ersOns protected by the '
OMVention." ."Protected persoia".status caries With it yariouS protections set forth in..
.Part Ill of GC,' In occupied territory, these Oretections.relate to,. among oilie ts t!hings,
•• detentiOn, intertegation,•rial, Pimishinent, and deportatiop. See, FL, 76 ("Proteett4.
persons accused of offeices shall to detained in'the occupied country, and,if convicted
.they,shill serve their sentences there:in."); art. 31 ("1 nTo physicalOr moral Coercion shall
be exercised against protected persons, in particular to obtain information from theart or .
from third parties:); 'art:, 33 . ("No protected person may be pnrri shed for an. offence he or
she has not •ersona* committed. ' Collective penalties and likewise al1meaSuret
intimidation or of terrorism are prohibit*); art. 49 ,("Individual Or mass ,forcible
as, welf as dePertatiOnt •of protected Persons froth occupied territery to. the
territory of the Occupying Power o to that of any other 'cOnniry, OCCiltded or not,. are
prohibited; regardless 'of inolive:). `Protected persoif:stitui wider ,GC is not related to, .
and should not be confused with, ',prisoner of war" .("POW' status under GPW. Most '
notably, a "protected persOn'7 underQC who commits an apt of hostility against opposing
forces does not receive the "belligerent's priyilegeaCcOrded to-POWs who Cointrit
.liostile, acts against enemy forces, before their capture'. "Protected; persons" can thus he
convicted, and (if appropriate), executed for such gets.
. . . . .
's general definition of 7piviected perSone'is•tet forth m article 4(1)
For maniple, on Sepkanber 11, 2001, nlui'teen al Qaeda operatives Wearing:Civilian clothes •
hijacked commercial airliners and used them as weapons to target and 14, thoi.K4p44'of civiliani.
, More generally, 1.1sami bin Laden has declared:a jihad against &e a& goverMorit that instructed his
followers to target ArriericancivilNns ail swell as..nrilitary perSonneli without regard for international laW.
See-Jihad Against Jews and Crusaders, WorlitlIalaraie :Yropt Statcoaenteb. 23, - 1998, available at littr.:11www.fa.s.oiglixplworldIparaldoc4198043-faityra. (visited on POruary 26, 2004).
- . • s Individuals who are far` protected p esro u" status Under GC may still receive the prOtections uruleiPart II of. PC that are not contingent on one's status as a "protected person." See art. 4(3) ,(noting that the "provisions of Part II [of GCJ ate .... wider in application, as defined in Article 13").
SpecifiCally, Part 11, !Well includes articles 13-26, "covers the whole of the poptdations of the countries in
conflict, without any adverse distinction based , on race, • tionality, religion or political opinion.' Art.
13. The prOtedtions in Part 11 are primarily designed to *tea persons from the 'adverse effects of
hostilities, 'Cm in occupied territory. 'Among other things, Part 'concerns the establishment in occupied
ietrito. rY Of hospitals and safety zones to shelter the wounded, the sick, children, young mothers, and the
aged, see arts. . 14-15; requires belligerent parties to facilitate recovery of those killed or wounded; see arts.
16-17; requires belligerent parties:to protect civilian hospitals and related items and personnel, se.taff;* 221 and confers some limited rights of comirilmiCation upon the poptilation Of the occupied country,
arts. 25-26.
1. -
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Perscins 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 OccupYing Power of
whichthey are not nationals.
•
The broad terms used in this definition suggest that;ersons located in the territory of
- - occupied Iraq are "in the hands of an oecupyingpewer and qualifyfor "protected
person" status so long as they "find themselves" . there See 4 Pietet, Commentary at 47, sense. .. . The mere ("Thexpresion the hands of is used in,an extremely general fact of being.in the territoryof a Party to the conidici or in occupied territory implies that
one is in the poWer or 'hands' of the Occupying Power.").- GC then establishes various
exception's and qualifications to thia definition of.`protected person" baSed on geography,
nationality, or protectiOn and qualifications I) elOw. by another Geneva Convention. We Consider these exceptions' •
A. geographical Limitation
. To receive the protectiOns provided fOr `protected persons'," one rang be loCated
in either (1) "occupied territory," or (2) .the "territorY of aPartY tO the ,eiffkiq." This
:,. limitation does not emerge from artiCle 4itSett'huit rather from other provisions in G ^ Most notably, Party I.of.GC, which the "8tatus and Treatment. of Protected PersonS," see POI (emphasis added), co 'ens only on "Alieni" who :And themselves `‘iit the Territory of a. Party to the confliOt," sea CC Part af, Section :,-Titlet.(empha'sis added), and persons who firidtherneelVeS in "Occupied Ten -Rot-NI," see :; .;GC,.Part Section DT, Title. •See also dC", kait III; Sectiohi., Title(referriug to ' visions Ceramon•to the 'ferritories of the Parties to the Conflict and to Occupied Territories') (emphasis added); .GC, Part III, Section 1V, Title• for the Treatment of Internees"); art 79 (sPeeifYing that the "In ernees" governed by Part na; Section IV, consist of "protected *sons" that' becti ..:interned PurSuant to the
.. provisions of articles 41,42, or 43 (in the territory eta party to the conflict) or the
,provisions of articles 68 and 78 (in:occiipiedierritory));; Article $ tends to confirm this .terzitorial nexus. in limiting the protections available to Otherwise "Ircrteeted persons" engaged in activities hostile:to the sedurity of.the State, artiale 5 speaks only about
persons detained "in:the territory of a Party to the conflict" or in "oeciipied territory." '`See GC, art. 5(1), (2). 9
The meaning of the phrase "territory of a Party to the conflict," considered:in-
..
isolation, is not self-evidept. At first glance, one think that the phrase includes
occupied territory; because the'occupied power (to . Whom the territory belongs) is aParty .
•
9 Conon*.ataters agree• that the Protections, accorded :it; apieteeted Oel-Pon.territory of a party to the conflict or in Occupied •territory. s". Vxtit only th.e• •Baxter, See 4 Plet0, CoMinentaiyat 4545; Ridaard R.' So-Called "(hip, Belligerency":' SpieS; duerrillas, and Saboteurs, 28 But Y.B. IriV1 „,., • 323, 32$'(1951); Raymund .1'. Yingling & Robert Gii4iaan6, The Geneva Cani;entions ofI 94,?, 1./. 393, 411(1952); John Embry Purk.eison, Jr.; United States Compliance with Humanitarian Respeeting.Ctvilianspurine (49eratianjust Cause, 133 MiL L. Rev.31, 74 (1991). •
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to the Conflict, But in: the content the home ten-itory of the entire COnvention, the phrase clearly refers to
himself:This is eviodfe tnhte party to the conflict in whosehandS the "Protected person. find
reqUirements from several provisions in GC. Part III of GC sets forth the for the "treatment' of proteeted pet,tons," and its provisions clearly • demonstrate that the "territory of a party to the conflicr does not include 'uoccupied • .territot[y]," First, Part III, of GC separates previsions governing theTerritory of a Party to the Conflict!' 'fromthose governing "Oct red Territoify].". 11; Title (" Aliens in the Ter See OC; Part IA Section 'Title ("Occupied Terrriittoorrryy i"o)f.. Party to•the Conflict"); GC, Part Ill, Section III, See alsO GC, Part Section I, Title (referring to . • "Provisions Common to the TertitOries -Of the Parties to the Conflict and to Occupied
the
Territories!) (enaphasis added).. hi addition, the rules that govern the "territory of a party
•
to conflict" are very difficult to reconcile with the obligations • • oecupying power by SectiorkIlL .Article impesed on an • ni'l$ 49(I);4hich hieh064. lao Part Ill, Section 11117s for "Occupied Territories.". generally prOhibits "forcible transfers; as well as
ednevPiosirotant ions" orProtected persons!" The Proviaions of•art III, Section II; by contrast; considerably mOre'latifnclo removing InOtected persons'.' found:in the. "territory of party to the conflict." See,' eg., art- 45(3) ("ProteCted persona. Maybe transferred by the Detaining PoWer.only to a Pavia which is a paFtY
tuft.l
Convention and after the Detaining POWer t4PITesent •.ability: of such transferee POWer to .s.atistecl itself of the illinsi and apply the pres• ent
willingness
(emphasis added);. art 4(5) ethe proViSions of this Article dO not Constitute'an obStatle to the extradition, iea
ppucr:s0u0a4n t of extradition treaties concluded before the outbreak of hostilitieS, of protected accused of offences against ordinary ' So
the any uncertainty about . PhraSe aterritory .Of a party to the conflict" is eliMinated bicOnsideration of the clear •d. istinctions drawn in the firit.three Seetions of Part la. "
,
In sum, the protectiOns afforchxl to "protected Persons" by GC. applY Only to
• t
,
persons WhU
he conflict. "find* themselves" OeCtiPied territoryor in the home territory © a party to
B. Citizens of the. Occupying P9wer.
The general .definition of "protected persoein article 4(1) by its terms does not ex tend to persons who "find themselves . in, the hands of an occupying power that i the State of their nationality. In
the context of U.S: Obligations in occupied Iraq, this
_ • f!..Artiele 49(2) .provides a limited exception to 'this rule: "Nevertheless, the, OCcupying undertake total or parrttiiaal l evacai on of a Power May .
reasOns so demand. Such evacuations mayg inveetn i anrveoal vife the sectiritY of the populationor iMperative military • • the displacement of protected persons•outside the
•bounds of•the occupied territory except when for material reasons it is impOssIle tone
oid such: ' • •- adreiiap,l ainC cCpreosetniot.n'P hearsvoen cseilaMsesd e."v acuated shall be.transferred hack'to their homes as soo as hostilities. in the
" ThiS point is so obvious that commentators assume it WithoUtdiscussion. See; e.g., 4 il
A
. .
•Cein
J.
mentmy at 61 -6.2; Raymund T. Yingling.8c RObert W. Gineane,:The. Oeneya Conventions of 194', 46 . - i. Intl L. 393, 417 (1952); JOhn Embry Parkerson; Jr.;
Law. Re:specting Civilians Daring United States Compliance with Humanitarian Operation Just Cause; 133 Mil. I,. Rev. 31, 73-74 (1991). •
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: means that U.S. citizens in the hAnds•f the U.S. goveautent are noeprotected perso
....,
I5espitethis.exeeption to "PrOtectedperSen" status, article 70(2) . :Of G.CproVides: -• . . , . ... .
Nationals of the occupying Power who, before the outbreak of hostilities;
. .
• have sought refugein the territory of the oecupied State;shall not be - ... arrested, prosecuted, convicted or deported from the occupied territory; .
• •except for offences cemMitted -after the outbreak of hostilities, or,.for . ..
.offerices tinder common law committed befOre the outbreak.of hostilities -
.which, according to the law of the occupied State, would have justified
' . extradition in time of peace,
.1
U.S..nationalS Captured'
itedpro• teetions,
ho satisfy the requirements of article 70 twelve its
C Nationals of a Non-Signatory State.
Article 4(2) provides that "[n]ationals of a State which is pot bound by" GC are
not "protected persons." Almost every State in the world hag ratified GC. At present, we
:'are aware of only two Statet that have not: the mall Islands and Natint See Office of the Legal Adsiser, Dep't of State, Treaties: Fore 4S6-57 (2003) (fisting States- 'Parties'td the Geneva Conventions), In occupied Iraq, citizens 'ef these States who "find
themselves .*. . in the bands al" the United States will net•he "protected persons,"•unless
and Until their state of citizenship agrees to be bound by.GC.
D.. Nationals of a C•-belligerent State.;
Article 4(2) further excludes from rotected person .. status "nationale of a co—
belligerent State" that has "normal diplomatic representation in the State in whose hands
',theyare." GC does not define the term "co-belligerent" At the time the Convention was
being drafted, the term 'belligerent" was commonly used to "designatefl either of two'
nations which are actually in a state-of war with each other, as well as their allies actively . co-Operating, as.distingnished from a nation which takes no part in the war and maintains a strict indifference as between the contending paitic, called a 'neutral..." Black's Law Dictionary 197 (4th ed. 1951); see also I OxfordEnglish :Dictionary 787 (1933) (defining
"belligerent" as "A nation, party, or persan waging regular war(recognized by the law df
nations)."). The addition of the prefix "co-" distinguishes, in broad terms, allieS from • enemies. See 4 Pictet, Commentary at 49 (stating that "co-belligerent[s]" and "allies" are
synonyms); Michael Bothe et al., Newlules for Victims ofArmed Conflicts 440 (1982)
'(characterizing article 4's reference to "co-belligerents" as a referenceto "allies"). This-
. usage is consistent with a prominent episode during World War IL In 1943, wheil 4aly
surrendered to the allies and declared war.on Gerniany, it was formally accepted as "a co-•
belligerent [with the United States, Great. Britain, and the Soyiet Union] in the war against Germany." Statement by the President of the United StateS, the Prime Minister of
Great Britain, and the premier of the Soviet Union on Italy's Declaration of War,
reprinted in 1943 U.S. Naval War. College, International Law Documents 92 (1945)...-
4 •
•v. 1.s
CO5950426
The status of belligerency is • itOt ahvay$ easy to o'stabii.ri, however,becauSe GC • does not require that a state of armed conflict befornaally "reeognized"by the States .
involved, See GC, art. 2(1). BecausebelligerentStates art defined in contrast with
neutral• ones, neutrality law mayprOvide garidance.in deice when a State has
become a co-belligerent. To remain neutral, a State must iaot actively participatein . • •
lostilities and (with exceptions notrelevanthere) must not penult its, territory to be used
by belligerents as a sanctuary:or:base of operations; . See; e.g.,. Michael •iothe, "The Law. of Neutrality," in The HandbookofHumanithrian Law in' Armed Conflic4 ¶ 1109, at 495.
(Dieter Fleck ed., 1999) (a neutral State "muit prevent any, attempt by a party to the
Conflict to use its territory fortnilitary, operations"); id. 11111; at 497. (" TfI& neutral
. state takes part [in acts of war by a party to the conflict] by engaging its own military
forces, this is a clear example" of forbidden assistance); Dinateiti,' War, Aggression and
a
Self-Defence at 27 (similar).. Prior U.S. practice - ountry beeomes is consistent with the conclusion that a • perMits U.S. armed to use its territory for • .131uPq.lses of condi toting. military operations:L? •
,• For these reasons, the exception to "protected person" status for nationals of "co-.
. . ,
belligerent[ sr in article 4 includes, at a minimum, nationals of countries. that send •
military forces to participate in Coalition Combat operationd or that allow their territory to
be used as a base for, such pperations—Applying. bSa this definition to Iraq; we conclude;
sed 6n infonnation currently available.to us, that United Kingdom, Aulstralia,,
pain, Polandr, ,Knwait, and Qatar arc "co:belligerentfar within the meaning of article
••.° This list is not meant to exclude other States that may be in a similar position; it
Merely reflects the information currently available to this Office.
. As for States that did notparficipate in actual combat operations in Iraq . bUt that
subsequently play some role in the occtipationof Iraq; we have not located -autholity or • analysid regarding the level of particiPation, in•an Occupation that suffices to -trigger "co-
. belligerent" status under GC.. We believe, however, that mere participation in any aspect
of the Occupation itself will not alwayi Suffice to .constitute co-belligerencY, especially
When a State's specific contribution has no direct nexus with belligerentor hostile
• ••, • , I11.1970,13resideat Nixon ordered forees in Viet am to cross the border into Cambodia ko ttaek bases that r° despite Cambodia°® profeasicaS'Of neutrality were keing used V Ilpith Vietnamese
diefde
and;Viet Coat forces, The State DepartnamtLegal Adviser explained that the United States afrxmatively
d not to secure the `ladvance, express request of the GovernMent of Csmbodia for: our InititAry actions on Cambodian territory,7 because that level of would have "comPinmised the neutrality
of Cambodian Government"' and the United States "did notWish to see Cambodia become a
.• belligerent along with South Viet-Nato arid theUnited Statea." Military OperatiOns. Cantbo' L 932; 935 (1970). President die, 64 Am. hitmelf made the same.point in couneetion with the.
. . simultaneous decision to provide equipment fOr the CanabOdian Army. See Address7to the Nation on the • Situationln Sputheall Aria, Pab. Papers ofRichoicl Nixon:405, 407 (Apt. 3q, 197Q) ("Mhe aid Teti will . provide will be limited for the purpose of enabling •cairoboolia to defend its neutrality and not fot the purpose of making it an active belligerent on one side or the other.").
* *" There' should be no dispute that each of these 'States "leas normal diplomatic representation
tthhies United States. GC, art: 4(2). Each of them maintains an embassy in Washington, 13.C., arid i(a is not required by the text of article 4) the United States also maintains an embassy in each of their capitals. •
F
activities, For. instance, if irState raerely'asSists thecoalition in • under article .firliEng the reqUiretnent
of.GC to "facilitate tie pOper Workingof all institutions devoted to:
,the care and education of children," it would. not be a belligerent But a State that sen6 military forces to assist in„rotniding. up Baathist reMnants an.imposing general .sieurity in ' raq; and especially -one that participates in'hestile activities in Iraq, engage
..1
conduct properly characterizodas belligerent. Iirsum; the, determination whether . in' •• -a State .1 a cabelligerent" by virtue_ ofits participation in the Occupation of Iraq turns*on •
whether the participation is closely related to "hostilities." * • '•
: E". Nationals of lyeliiral Statein . the Territory of it:Beiligerent *te.
Article 4(2) also. excludes from `protected -persOn0" s't atus "o • State who find themselves lathe nationals fa. neutral,— tate has - territory Oa belligerent State,. " asiong as the:neutral anOimal diplomatic
:phrase "territory, of a belligetentState" mighti na ptpheea Sr't ate in ‘Nhaie hands they are."' The t * tv .•different readings. East, it Might be capable of heati ng two -refer to Aretetritory of any State that participates in an..
armed conflict.covered by C.4:: As applied to the artned-centlici:v;ith • , - interiretation would mean that. citizens. f neutral States in occupied Iraq Would note
"protected 'persons". so long as the neutral States "norimall diPlOrnaticyceptesdntation" -;.in the UnitediStates ,Seeond,, ,,territery of a belligerent State" itproit'vfet te the he • , territory of the. party to •
•hiniselt As applied :the Oaf:11ot in.whose hands the citizen pfthe neutral.State tel. the 'armed Conflict with Iraqi.th4 i..149 40n would deny
"protected Personti"statns to citiz,eps cifrieutral States who find themselves in the, •
territory 'of the Ilnited States; but net to those who find themselves in occupied
. .
We conclude that the second interpretation is cerrePt...The phrase "fnjationals Of a
neuttal.State ylie find litevgclves in the territery Ota Sta#e" must b• '..understood in light 'of the convention's overarching structure,. As noted earlier, the
Specifle.protectiOns that the Convention confers pnffpxOteptOd peroents7;aiiply in only two pliets: in occupied. tecrifery, oic in the home territory of a party to the Conftiet See su pra : If !territory.Of belligerent State" were construed to inchide occupied territory as
Well as the home territory of a pa• rtY to . the conflict, national's of neutral &aka W. • enjoy dc's protections anywhere in the world. 4.31114 riot Interptethig 'territory of a belligerent
State" to include ebeepiedterritery would thus render this phrase effectively : •
meaningless. Such a construction is disfaivoted, V..,pcnibeitheireer 290 U.S. 276, 303-04 (1933) (treaties shotildnOt beinterpreted rentlerphrases. .
g Oarltigls :Or inoperative").. •
It is true that article '4 uses the phrase "territory of a belligerent State: while the
other provisions of GC employ the than "teriritery of a party to he conflict" when
referring to home territory. Where, drafters use different terms in the same treaty, thejr
are ordinarily presumed "M• mean something different." See "yr France v Saks, 470 U.S.
392, 397-98 (1985). But in this context, we do 'not think the variatiorrin language
indicates a different meaning. It is easy to construe the phrases "territorY of a belligerent
State" and "territory of a party to the conflict" as sy nenyms. Every "party to the conflict7
is a "belligerent State," and every "belligerent State", is a."patty to the wallet.? ore. - O. . .
•
10 7.3
C 0 5 9 5 0 4 2 6
importantly, if we Wer. tto-read thelishrase "territory of &bellieret State" to include •
occupied territory; the qualifYing Phrase wouldi)e entirely:superfluous, and indeed woUld
pbeer csoonnt"r asrtayt utos tthoe treaty's apparent intention to. narrow the exclUsion from "protected - a subset .of citizens ofnentral States. •
. • . • The negotiating• record confirms this meaning.of "territory of a belligerent S. tate. ," 9: Chan v: Korean'Air Lines,. Ltd, 490 II.S:•122, 134 k199):(stating that's •, negotiating record "may of course be consulted to treaty's. TWo aspects of this record make clear elucidate a text that is ambiguous '').. ••
in
• that .the phrase "territory of abelligetent State!' • article 4(2) means "the home territory Of aparty to the conflict."
lirst, the delegates treated the phraseS .Netriteryef belligerent- State" and
_
iorY of a Party to the conflict" sYnon34/14. 4.pie.PoSed draft of article. 3A (which • ('later became article 5):began: "Wherein the .territtiry Of a belligerent the Power .....Coneerned, is satisfied that an individual. pi-elected •
. Persea is definitely suspected of or
wil
engaged it.i . ' activities hostile to the SecuOtY2Of the State;. ." 3 later changed tO replace "territory ef belligei Final Record'at,1001 . -ent" .With ."territory of a I'attY to the conflict.". Althetigh draft article.3A Was hetlY debated throughout the COnyention,
none of the delegates reacted any manner Suggesting that the change in language
'altered the scopeOf the on article3k.
Second, and more broadly, the:drafting history reveals' that the delegates 61131. --,iindergipod that nationals of neutral'States would have,"protected person": status -in occupied territory. .The RappOitenr Who introduced thadraii of Article 3 (winch ' .became article 4), Col. lEfkx Pasqurer (SWitzerland); said: • • •
.A par4culariy deliCate question Was that etthe.position- of the nationals tlf nqutral:$121e. The Prafling.Connittee had made a distinction between • the position of neutrals.in'theheme territerY of belligerents and that of • neutrals in occupied territorY.. Iti the fi#mer case;:nadtralSwere protected
by normal, diplomatic representation; in the litter ease; on the other hand,
the diplomatic representativelooncathed were Only accredited to the:
.Government of the occupied States, whereas' authority n'istedwiih the
- .Occupying Power :. It followed .t h: at all neutrals :in occupied territory. must
enjoy protection under the.eonVention; while neutrals: the home
territory of a belligerent 'onlY requiredstichproteetion if the State whose national - they were had rio retinal diplOmatic representation in•the territory in question. .
..2A Final Record at 793, Not-a single delegate questioned or challenged Du Pasquie '
interpretation of article 4's tenet;br his rationale as to why nationals of neutral: States
:should receive "protected person'? status' in occupied territory. 14
,a*
A United .nationals of neutral StSattaetse tso d elegate, Mr. Ginuane, additionally explained that the U.S. did not want various be protected in its horne_territory: "Rja the United States of Anaeiica &Wiz • -
• other countries a large section of the population was compOled of aliens who were penninentlY • •
settled in its territory. In the United States thosepersons considered themselves as an integral part of the
• 11 • F1 2„ 3-):3
CO5950426
Por these reasons, we conclude` that nationals ofneu
uded froth "protected person" status in atyeupled .i,i5
F. Persons Protected by Another Geneva COnvention.,
Article 4{4) provides:
Persons protected by the Geneva Convention for the Amelioration of the
Condition of the Wounded. and Sick in .Arined Forces m 60 - Field of
AnguSt 12,.1949, or by the Geneva Convention for the 'Amelioration of the '
Condition off' . Wounded, Sick and Shipwrecked Members of Atmed-Poices
at Sea of August 12, 1949, -Orhy the Geneva Convention relative .t.6 the
treattnent of Prisoners of. ar. of August 12;190, shall not: as. protecet dp ersons within the e considered of the Convention. - •
prtiVision excludes persons who enjoyprotectiou under one of the•other dirCe , 04U6Nia Conventions from claiming i!protOcted petion", status under GC.. Such parsons excluded because they receive .diff4ent protections • appropriate to their particular' • Status under other Conventions.
G. • Unlauftd Combatants.'
• 's full tatle-^ "Geneva Cenvantion gelative te.the Protection of Chfilign Peisons inftirae pf Wit," (emplinSis.added) suggests that "[tihe main objeet of the COnyetitiOn is to protect a strictly' defined Category of civilians." 4 hetet; Conupentury 10 (emphasis added). Congisteut with this title, -article' 4) of GC • expressly excludes
. • , .
-country, and in time *of war were treated in pr a- ctiCally all respects' as Annear citizens; Their childr:taia; were brought as•citizens of the United States:: Such persons had ne need of proteetion tinder. the 6aveatioa. at794. '1120.:PratlingC onuntittee agreed and crafted article 4 to eve ' 'piotections from nationals of neutral. States only When thoy End thentselVes inthe *Orritozy to the conflict. Id " • a, territory' of a party . •
15 Most eMpromitators agree With our inteapmtation: of the phrase "tenitcry of a belligerent State"
•
in article 4(2). See, e.g., Itsymilcul yinzThe 40eit*. Ginone, The' GeneVa COnVentions Of 1949; .4q4En. mei 393, 411 (1952); 4 rictet, .Com:vtattarjiad 46; Joyce A tw Gutiheridge, The Geneva • Conventions 0/194.9, 26 Brit. Y.B„. hull. 294;'320 (1949); Morris Oreenspan; The Modern Law of antl Warfare .157-58 (1959); FloveaS: Levie; 21to Code atinternatiana/kfued COrifliet 798 (1986); Van ;nit A. My, Concluding Iiiononitarfan Provisions in Cease-Fire Agreements; 148 Mil. L Rev. 186, 2311(1995); Theodor Meron, prisoners ofFrar, Civilians and D4slontats in the Gulf aids, 8$ Am. I. Intl L. 104, 166 JoOhhnn Embry Parimmon; Yr., Pawl SteStei Compliance with Htundanitarian Law
Respecting Civilianspuiffig Op4ationjust Cause, 133 MI!. L: Re*. 31, 110 (1991). We have discovered• •
three commentators• who, to the contrary, have suggested in passing that nationals of neutral countries in
occupied territory are not "protected persona." See Hans•Teter Gasser; "Proteetion of the Civilian .Populatien," trr Flecic,* Handbook ofEctimanitarian Law at 741; .Gerhard von °lain', The OcetqsationOf
EPnaewri,l y Territory:A Contritentary on the Lao and Practice giBe.11igerent Occupation 910957); Jordan J. ,ludicial Power to Determine the Status antiRikhts of Persons Petained Phout 2)141, 44 Harv. laitl 503, 512 n.29 (2003). The ciantnentators pmvide no analysis • support of their assertions: , .• • concerning the meaning of "territory of a belligerent State," and we thus find no basis in their siatimeOti' - ' for questioning the construction outlined above.
States are not per se
12 F 113 - 14
0 05950426
lawful ' Ombatants who, enjoy POW status from "protected person" .stattia. :these factors,.
"combined with the fact that• unlawfutetunbatants generally receive lesi favorable - treatment than lawful coMbatants under the.Geneva Cenventionsystem, see; eg.;
. Memorandum for Alberto Gonzales, COunsellOthe President;froni lay S. Bybee;
'Assistant Attorney General,'Oface of Legal Counsel, Status of Tailbctn: .forces' CAder
Article 4 of theirhird Geneva Corryenilon of .1P4. 9 .0 1-7 (Feb: 7, 20132) (concluding that GP.Nrwithhold • protections from persons who ,engage in hoitilities but fiat° satisfy
. criteria, for lawfiil cernbatanCy), might lead. one to assume that unlawfid combatants are'
categorically excluded fp:nil. "Proteeted perseir•tatus under '
• Ges text, however, contemplates that persons who "find themselves" in occupied
territory within the meaning of article 4 may engage it arleasf some forms of nulawfui
'belligerency without forfeiting all of th•benefits of"pretectedPerson" status. Article
5(2), for example, provides that "an individual pretected person" detained in occupied
territory "as a spy or Saboteur, or as a person under definite suspiciOn of activityhokil0
to the security of the OccuPyingPoWer" does not fOrfeit all GC protections.. Rather, such
•pbrons forfeit only their "rights of commUniCation," and then Only When "absoltite •
security so requires." Art. 5(2): 'While the seope of conduet contemplated by.the
Phrase "activity hostile to the se:curity of the Occupying Power" is not entirely cleir, 6 spies and saboteurs, at least, are unlaWful combatants. See Ex . ',cute Quinn, 317 1.1.S..1.,
' .30-31 (1942). in like manner, article 68 prOvides that the occupying power "may impose
the death penalty on'a protected perion only in cases where the person is guilty of • 'espionage, of serious acts of sabotage against the military installaticms of the Occupying
Power or of interitianal offences which have caused the death of one'or more persons."
:art. 68. This provision pears to Preserve the prOcedUral and substantive trial
protections conferred by articles 69-78 of GC for at least some types of unlawful
e, ombatants Who are otherwise "protected:persons" under article 4.
. •
- GC's negotiating record cenfitnis that at least some forms of.nt 11AWful • belligerency are not inconsistent Neith..,mlected pers on' status. .Tho original draft of GC
(the Stockholm text) did not contain any provision*in to article 5. This Omissiart prompted many delegations to ex press concern that State, engaged in an armed Conflict
or occupation would be left withOut •"sufficient protection against spies, saboteurs and traitors,"2A Final Ree:ord at 796 (stmemary of statement,of COL Hodgson (Australia)),
and that without a provision like article 5, the Convention "would in certain cases
Jeopardize the very security of the.,State," Id. Such Concerns•voutd not have been raised if -tW original• had been understood wholly to exclude these sorts of unlawful
belligerents from GC's protections. •The Drafting Committee responded to these
concerns by proposing a new draft article 3A (which ultimately became article 5). The
Rapporteur, Col. D4 Pasquier (Switzerland) "explained that internal security was one of the main preoccupations of national leaders in time of war," and that article 3A had been drafted "in order to guard .against [the] dangee' that "the protection given:by the
16 Presumably, it should be irnderstood torefer to activities similar to espionage and sabotage. See, . ag., kinfolk . &.Wegein Ry., 11. American Train Dispatchers' Aron, 499 U.S.117; 129 (1991) CUnderihe. principle of 4ktrdepi generic, when a general term follows a speck one, the general term should be *
understood as a reference to subjecti akin to the one :with specific emnneration.").
13 Fk2.3-15.
C 0 5 9 5 0 4 2 6
•Convention should . . . facilitate the SubversiVe activities ollfifth col
RReeccoorrdd at 796. Though some delegafions oppOsed draft article 3A, 2A Anal at 796 see 2A Final Record -97; 2B Final RecOrd at 384, none expresSed the view that it was unnecessary, because persons whO engaged in any arm of unlawfill belligerencY were categorically excluded from `,`protected person" atatvsimi- GC.! 1
. . We thus conclUdeIhat at least Some unlawful belligerents ban fail within the
scope of persons .who are $rotected" under GC so long as they Tuid themselves" in
occupied .territory within' the meaning of artiole 4. 18
: Al Qaeda Operatives in Occupied Iraq
We now turn to the status of al Qaeda operatives captured in occupi
17 Siniaady, itx a discussion offthen:irtjete 3 (which. beeanie 4), ate. stated. that the dem-it:16A "tif ”Pretbeeited persons" wmild the Iht-ited. ghtblotte B. hosties in Violation . of the la ws "000Yer illdiVid114% participating In of wait Mid urged that ten-article 3 be ainitrided to =Sure t hat
bidliivnigli acnitsi zwehnos, "y i:e2lAat eFdi n[tahle R laewcos rodf a wt a6r2)0 s-h2o1u. lNd oc edaeslee gtoa tbee d einsptiutlteedd ttoh eth :0- treatment provided w- htevretation of t
for la
article 3, but Ultimately no - amendminis wen Made fo article • in response to the T.TZ•s concern 1. en-
• • " Nunneraus commentators conclude that unlit combatants are not perSe exciu44f;o7al .."PrOteeted Person" status under QC. See, e.g, Albert L'Bsgain & Colotel Nlialdernar :log. The 1949 Geneva Convention Relative to the Treatment of Prisoners ofWar; Its PrineVes,.4nnoVatioin.,. and
Deficiencies, 41 N,G Iv. p.ov. 537, 549 (1962-1963);, Chard R. Baxter,
Belligerency': Spies; Cuiefrille.i; andSabotearis, 28 Bait V.Ii.Irtel L. 323, 328,(1951); Pas Kidslioven, e:onstrainti on the Waging of War 41 Op9Di
ofen;rsilelaaWtf are, Draper,' The Stana:Of Combatants and the Question. 4'5 Brit. V.13. 1nel 11,, 173;193 (1911)...Some Coromentafors retch this cOnclui*In by
the view, expressed in theICRC's tonalnentary, that "(c)very person in enemy handa must have
sonic status tinder international law: he is either a prisoner of war and, as such, cavered by the * Coniention, a civilian covered by: theConvention, or again, arcecoliyer Of tb.e"pedicel personnel of the armed forces who is covered by the First Cenventiot There line niterntedlate>stanta;;ijobadY in eirayiatidi can be outside the law." 4 1*ef,'Cormr.e/gtary, at 11• Se4. e.g.:, Jordan I. P'au,st, Judicial ' Rtmler to Detenntne the. Status and Rights ofPerions Detained Without 244-44 Ham Intl 503, 511- 12 &•11.27 (2003); 'Laura Dickinsen, Using...Legal hoods' to Fight Terrorisnt ,D.,tentioni, Military .COttanthiOns, IrtitginPiaohol TratOtitli,'Inul the Rale Of Lam ,75$, ReV..1467, 1425 & a.92 (2062): But this is dearly not what the Geneva. Conventions provide ; Many nein-POWS "in, enemy' hands" will fail to qualify for rights accorded to liretected Piasona s wider GO, including (a) persons who ar•natiOnah of a • .'Stott that is not bound by the . Convention, see GC,. art. 4(2); (b) persons arms their country of citinsaship, se 'wha haVe 44114 again#
of their country of cietzinship, es eGeC , mt. 4(1); (c) persons who have taken up arms-against a co4>elligerent .. 4 G9, art 4(2); and (d) persons who were not caPtured in the territoryof a party to the conflict" or in "occupied territory," see pci PartSectiOns I-111; Supra; at 576. ' The commentators who, endorse the ICRC Commentary make no effort to reconcile the Commentary's
aspiration with these undisputable exclusions. froth CC's protections. SO while we iceognin that at least •
' some types of unlawful combatants can have "protected *atm" status under GC,..we reject the ICRC' Ciammentaiy's mischatacterkation of article 4. . •
19
,
hi • discussing "al Qaeda operatives," we•refer not only to individuals, who are formal members al Qaeda, but alsci to those who have associated themselves with that organi7atiOnand are fighting milts behalf. Cy: Ex parte g'ulna, 317 1, 31-38 (1942) ("Citizens who associate themselves with the
.
.arm of the enemy government, and with its aid, guidance and direction enter this country beaten
acts are enemy belligerents within the meaning Of the Hague Convention and thC • aw
analysis would also apply 'to members or asSociates Of other terrorist organizations that are sufnciently
.
14
I 1p
005950426
Aeinieipieti ye Problem
• To say that at least some tualaWfUl combatants may be "protected persons" in occupied territory isnot to say that 'all ufilawfill Combatants captured in lraq • • .4 and in particular al 'Qaeda terrorist operatives captured there enjoy this status.. GC does•not
expressly address the status of operatives an.intematienal.teriOriSt Organization.
Whether such terrorists possess "protectedperson" status therefore- depends onwliether
they fall within the scope of article.4(1), which 6nfines such statua to "those who, at a
given moment and in any manner whatsoever, find themselves; in the case of .• . . • •occupation, in the hands of [art]... .OccuPying•poWeref*hichthey are not ; hasis added)... , ationals."
•• Article 4's use of the phrase "find themselves" is somewhat unusual and creates
an ambiguity in the text. Some have read this phrase broadly, le include :within the: . •
"protected persons" described in article 4(1) EsIl pertons physicallypreseiat is occupied
territory. See, e.g.; Affa v. COmmander'Isteel:Defeat* Force in the West Bank,' 139; T52, (1990) (concluding that "'Protected parSousr
in the Cerrito ry," including infiltrater8 Who are there . eMbriteez . all perSOns found Yingling• Robert V‘r. •qinnane, Wig;,' Raymund T. • The Gmei0 Conyentiom Of1949, 46 Am. J: 1•1 L. 393, • 411 (1952) (implicitly taking this position). Under WS int: 591;004,i,, those 'Fiht6"41 themselVes" occupied . territory are 8i/41Y:those who ",are"..in occupie•.tortitory, and a ,
;'Maeda operatives in occupied Iraq would be "protected persons!" under GdunlesS,they
wi.tbin article 4's limited nationality: exclusions. While "are". maybes possible •
:reading of "find themselves;! it is not the:only, or eVen:a particularly obyious, reading of
phrase,: Had'article 4's drafters this Meaning, they could have readily •
conveyed it with terminology far.simpler and 'clearer than the phrase "find themselves.
an AlternatiVely, the phrase "filidthemselves" can be read more narrowly to suggest element of happenstance Oecoincidente; and to connote a lick of debbarati
relating to the circumstance8 that leave the persons u question in,,the hands of an ••• '
occupying power; reading of" the phrase hOth cOnMiOn 1 See; e.g, 4
the`
Oxford English Dictionary 224 (193) (defining "find" as "to come uporfby chanee or in course of el;ents"); Plink 4 87agnalis New StaniardDletiOnaiY of the English 4rigripge 923 (1946) (deP/iiing Imd" as "to diaebver or Meet with uPon•;,fall in with" ). On thiinarroWer reading, al OaedaoperitiveS inb'yo caCecuipdleendt ;I: rcahqa dnoce , •not, as a general matter, "find themselves": in that count* ,Such persons are in. Iraq 'as willin agents of an international terrorist organization engaged in global, armed conflict
:against the occupying. pOwerS. Their presence in occupied territory, accordingly, can
hardly be attributed to happenstance or coincidence.
connected' to al Qaeda that they,may be deemed particiPants in its armed conflict against the United States,
as well as to members or associates of terrorist organ*tiOns that are not so connected to al Qaeda txtit'ap . • •••.: separately engaged in global armed conflict against the United .Stges. For purposes of this opiiii61' we do. not attempt to articulate a precise reS •for identifying such associates or OrgAnizatjons.
15
7 ".""
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. • • • This reading of article 4 accords With ordinarYusage: one wonid nol say that a '
terrorist who hijacks an airplane "finds himself" on a hijacked airliner. His presence on the hijacked plane is surely not attributable, in any. way to happenstance or coincidence;
. . he is there to Carryout the hijacking By centrist, one wetild say that innoCent
"find themselves" aboard the hijacked /light:* Although theirPresenee on the
hijacked plane is in some sense &Aerate (Pretutnablythey chose to travel on that
particular flight), it is accidental or co-incidental at least in the sense thatit *tilts from
. factors unrelated to the hijacking. .•This reading o"ff ind themselves" ccll oset cmi . -to the positionrecognizedlayone Justice-ofthe Israeli supreme Court in Affo v, Commande•irrael Defence Force in the West Bank29 1.1,1\1„ 139„ 1$0,(1990) (Bach,
concurring in judgment) (acknowledging that those who "find themselves" in, occupied
territory could be limited to'those who have "fallen into a situation where igiinst their • they find themselves .in the hands of one Of the parties to the conflict er in the hands
.,qf the Occupying poWer; whereas people Who Subsequently penetrate into that territory
with malicious intent are not included inAhat definition"). It has also been suggested by
at least one commentator,. seeBrian Farrell, liraeli Demolition of PalartintanHouses as a Wye ifeasyre: ,A,pplication ofirtiernaii4rtal LA -v v.tO Regulation 119, 28 Brook. 7. Intl
1471, 92211.384 (2003) (noting the post ilitY that certain. persons occupied territorY.
' do not '"find tlaemselves' in the handi of the or,,oupying power as contemplated byArticle•
o Although article 4:Can be read to •xclude al Oat& OperatiVes from the'clasS of tected persons,'" we must acknowledge that article 4 0O414.40 bore44 th'inati4'.' • • such terse*. This arnbigUitY, and 90's more genetal faihite to speoWeally ad#reSs the
statusof international terrorist organiiation operativesinocaupied territory; are not
Ti?..p..Genala Conventions were drafied- at a time when Ceraphcis between'
:States were the only transitional armed conflicts that could have'been•imagined. The
1949 Diplomatic Conference of Geneva. ceirmi in the:aftetniath- of World War )1, when
,$fateswese the sole entities with the prgitttitzatiOri; discipline , and ittOnumi* capable of ,:engaging in transnational wars: GC's . gtatecentrie 'orientation dearly reflected
article 2, which hinita the .applicability of the Geneva OanyentiOns:t4 armed ConflietS,
.betWeen 'States, and occupations of the territory of Stet* that have either ratified, Or else
acceptcd,and applied, the Conventions, siuzppraa . 4-5 • •
As we noted, Article 4 extends "intected peisenn Statns to all "thoSe who,nt a glen mornent and in any manner whatsoever, find themsaves in the hands Of [anj Occopyinz Rower ot which
they arc not nationals." The prepositionalphrase "at a given rooment and in .anY manner Whalp:)evcr n modifies `Told themselves" and therefore has no, application or relevance to persons Who do not Tind
theroselYes" the hands of an Occupying povsior. Thai, the rner4iing of:mat a' given moment and in any mamma- whatsoever" doei not inform or expiad, but instead depends up)/ and is limited by., "Ci4d - themselves." Accordingly, we do not believe this prepositional phrase provides ineaniogfulSuidancC
•choo g between the, broad and narrow readitis of "And thenaselVes." : • - - •
21 To be sure, coninaomilicle 3 of GC contemplates that a State and non-State act* can engage
iCno annt raarcmtiendg cPoanrftliiecst" " not of an international charactra'!'that occurs "in the territory of one, of the High See Geneva Conventions LIV, art, 3. Rut common article 3 confirms that there was
no contemplation of non-Stat tenorist.organizatiOns carrying on a global Npit. If establishes minimal protections of human. treatment for persons involved conflietspOely internal to a State,. such as wars and related domestic insurgency movements. See Memaramigai for Alberto R. Gonzales, Counsel to
016
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Because article 4's apPlication in this 'context is itmbigUoui; we turn to other
sources' for interpretive guidance.' . 35 (1991) (providing See Eastern Airlines, Inc. v. Floyd, 499 US. 530, 534-, that. althotigh treaty interpretation "begin[s] wit11 . the text of the • treaty, . , [6j-tier general rules . of construction maybe brought to bear on 'difficult or
' ambiguous pasSages") (internal quotation Marks and citations omitted);: Vienna
.u CkontvSen:ti on On the Law of Treaties, Opened for signaplreKv 2;3, 1969, art., 32; 1155 331;340 ("Recourse may be'had to supplementary means of interpretation ..
to 'determine the Meaning when [textual] interPtetation according to article 31 . . . loaves
the meaning ambiguous or obscure .7).4 Resort to extrinsic•sources is especially
appropriate where, as here, ambiguity results from changed or unforeseen circumstances.
Tn Such instances, .``it isbur responsibility to giVo the specific words afthe treaty a Meaning consistent with the shared expecteitionS of the contracting
Airlines, v Tsui Yuan. Tseng, 525 US. 155; E1.411srael 167 (1999): (quoting Air 17rance v. Saks, US.. 392, 399:(1985)) (emphasis added). See,44o Rocca .7hOMPSOn,,.43 U.S. 31
331-32 (1912) (observing that treaties "Mike other contracts . ; are to be read in the lagb
of the. Conditions and circumstances existing at*the timeibey were entered into with a •
VieW to effecting the objects and purposes of tiie Stater thereby contractin g"),
B:. GC's Benefits-Burdens Principle
We first consider article 4'S textual ambiguity in 'light of the.objectsand purposes
of the .Geneva 'Conventions; 'including.dc.:It4.well established; bothsin United States
and international praCtice, that interpretations of ambiguous 6.54ty text should;ifpos.41)10;, accord with such p urposes. .S0 Potca, 223 U.S. at•331432; Vienna Convention on the 'La* of Treaties, opened:fo dignalire, May 23, 1969, art. 31.1;.1155: UN.T.S; 33-1, 340
("A treaty shall be interpreted in good, faith -in aecordance with the QicliikillY Meaning to
*40 t, and witilarn J". Baynes:II; General c6nnsel, Department of Defense, Aom lay S. Bybee, As asistant
Viand
General, Glace of Legal' Cpiinsel; Re: Applcation alTreaties and Law: to rdQaeda and Talibast Dctainces at 10 (Jan, 22, 2002). ,"The GC4ra-fterri_ . 114.itte that focused on Oneerns 04 4ftreed to1 40Y_: ion article 3 attor.a le n810 14 rho Implications of conferring even Leta protections on non-State groups'in a purely demesW' 'context: See, e.g.', 233 at 325 (rep:Wing &Met • • delegate Mr. Morosely ai stating tIvot "No other isina haf rise such'a. long •diacaltisiot and to such a
detailed and ethatiative study as tbe rinestion of the extension of the Convention to war yictintls of conflicts
not of an international chicter."). The creation of such protections 7 , Which fall far short of those • •conferred on "protected persons" by article 4— "ntadrfedl anew-s: and represented "in almost :tmlioPed.foi extension" of international law at Ole time. •See 4.Pictzt, Csynatentorii at 26. This limited • . extension, after elaborate discuision, of minimsil protections for ucia,Statt, nano in purely internal an4ed
• conflict further confirms that the drafters Of GC did not contemplate the possftOlity of full "protected person" status for Members of a non-.State .actor or on engaged in transnatienal armed '- conflict
• ' Although the United Statell'is nota signatorY to the Vienna Conventitin., it ftas recognize articki 31 and 32 of the Vienna Convention reflect international practice.' ' d that • See Meniorandum for Alberto Gonzales, Counsel to the President, and William I. Runes General•Counsel, Department Of.Dereuse,
freralay S. Bybee, AssistanfAttorney General,. Office of Legal Counsel,' Res:Application of 2) .eatiea and Laws to al.Qaedaand Talibatt Detainees
' • mid 32 to interpret treaties..•se4 at 23 (Jan. 22, 2002). Courts also frequently rely 'onarticles 3 I. • •• . :1296 a.40 (11th 'e.g.,;tquantar, v.Delliforite Fresh PrpclaceN.A.; Inc., 179 p,3d.T.279i• — Cir:1999); Kreimennan v. data Yeericanip S.A. de c Y, 22 17.3d 634, 638 11.9 . 1994). • .
F 19,3-1,0
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be given to the terms of the 'treaty in pririrose the context andin the light of its object and .•") (emphasis added). ::One object andpirrpoSe.:of the GeneYa Conventieris is to
•exclUde from coverage those who engage, in transnational armed Conflict,:eyen in occupied territory, if their representalives have rejected the burdens of the Geneva
Convention: system: "
This "benefits-burdens" principle Ands several'expressions .in the textof GC. For exaimple,..articie 2(1) of GC limits the application of the Convention to armed conflicts
een High Contracting Parties. Common artiele.2(1) expresses the principle that - •
entities engaged in armed conflict do not receive Geneva Convention protectiOns unless •
they also accept the Conventions'. burdens: Article 2(3) similarly reflects •alrenefits—
.byrdens constraint. It proyidesthat if a `Power[} in conflict" that is a'signatory to GC '
•accepts and applies" GC, then any pignatery State involved in the-Conflict withthat power will be "bound by the,convention" with regard to that "Power." Article 2(3) •
further states that if one of the "Pewera in conflict" is a noa-party to . c, the "Powers • who are partiev thereto Khali remain bound by it in their mutual relations:7 This proVision
:.contemplates that even when: signatories and On-signatories fight together, signatories,
`eWe'dutieS under GC only to 'other sigriateides, or to those "PeWers" that have agreed to
dacrcaet#pt3 a ond apply the Convention. COnamott article 2(3) makes clear that, though the f the.Geneva Conventions didnot insist -on the formalities of treaty signature
and ratification, they did insist that a Warring "Party" must accept the burdens of the
' • Conventions, even if somewhat idonnally, in order to receive their benefits,
benefits-burdens Principle also finds expression in article 4(2), which
Pr. .'"Natienals of a State which is not bound by the.Convention are not protected by it•
The ICRC's-Official Commentary' states that artiale'4(2)'s exOeptioa to the
defiaition.of "prot&teel person" in article 4(1,) -is a.,"truism" and an "unnecessary • ddition" that follows naturally fremarticle 2(1) 4 Pietet, ,even in the absence.of article 4(2). See Commentary•at 48: Whether or notthis is tine, articlo•4(2) makes this much Clear; person.s in occupied territory, including' thciso who commit hostilects there, are
not.`protected Persoza'• unda PC if thoStato that tOPresePta then has not formally :accepted the Convention's b ens., ,
•
This' principle stands, out with clarity against thebackground of CC's otherwise.
'very broad reach: Recall that GPW limits POW status, and thus the benefits of GPW, to
the lawful combatantS of armed forces- and related foi es of StateSthat are Parties to the
•conflict and have ratified GPW, and thus that hive accepted obligations regarding the
conthict of armed conflict. By contrast, GC casts its net much, wider extending
`protected person" status in occupied territory to persons who have no connection to the
'armed conflict:(such as nationals of neutral States) and thus who have no obligations
related to the conflict. Even in the , context of.GC's expansive application, however,
'.draflers were careful to exclude.• "protected person" status individuals from States
that hn(1 not signed the Convention or otherwise accepted and applied its proVisions in the
relevant conflict.. • •
18
CO5950426..
In sum, articlei 2land 4 reflect the Geneva Coriventionk principle thatperscina.
w/ao engage in transnational armed conflicts do, not receive the benefits of the; •
ConyentiCns,in occupied territory or otihesrwe, ik their tepresartative,i refuse tPaceePt their burdens; GC usually expresses this benefitillnirdens pj inni* in tit-Ms Oilationals .Of States that haveratifiedilie cenvention. Skeifically, GC generally provides that'
nationals of S• tates that fail ..to:atiunie the burdens of GC de not receive. its benefits, even
in occupied territory: This formulation reflects the-drafters' assumptions that States •
• * would be the only entities capable'of e• ngaging in a transnational.arrned conflic.t, and that
denying "protected persPn" status to nationals oftnon,compliant States wouldadUeaqt eyl • 'ensure that all warring entities. accepted GC's burdens before receiving its benefits: •
BUt the assumption that perSons would only ,be identified with States —becaUSe-
States are the onlyentitieathat talre part in transnationalconflicts' 7 does not hold true an
• the unprecedented context of a global armed in which the.armed•forces of a non-. State terrorist organization attack a State in tertiteryCCenpied in connection with an ' nulled cOnflic4 between SignatoryStatcs. Adherence to'a#icie 4'S State ,ccntric ' resuppositioiti, 'this context would violate CC's
entities cannot receive the , fundimentar ptilidP 10 *714 of CC if they reject Geneva Convention..diiiiqs. Al 9aeda. has pointedly declined to accept or apply GC or any ot, the la armed conflict If nation* of a rogue State that refused tO bonnd the Geneva ► of •Conventions engaged in unlawful belligerency,on behalf of that rope. tats; they 'Would be denied `protected person" status every; Where in the world, including occupied Iraq.
, :See GC art. 4(2) anlatiorials of a State Whichip inOt boundby the Convention are not
protected by it.") It wouldrun sharply contrary to the object and purpose of GC:to giVe:
al Qaeda operatiVes a more elevated status than such indiyidnals, The conk/41.6'f such elevated status *odd altoiv non-Statt. terrO4at organization-to circitniVerit GO. • benefitsHburderia principle by using territory occupied in , a war betWeerktwasignaterY
,pSotawteesr .a s the most advantageous plaCe to carry on their conflict 'against the occupying articles 2T ahned s4o .u7n. da er approach is to' adhere to the benefits,burdens principle, embodied isu prinelple that incluefe P9Mplia4PP by linking the benefit S of tine' Conventions to :acceptance of their'obligationsj3„ S'e'MptpOianclum.f9.r Alberto
GonialeS; Counsel to the President,._ and William iflaynes II, General CPunsel,
aftment of Defense, from Jay S: Bybee, Assistant Attorney-General, 00ce of Legal: Counsel, Re: Application . of Tre4ties '474 444 oi,c21 Qaeda and Taliban Detainees at 10 ; Van. 22, 2004 . .*: • *
Our recourse to fUndamcntal principles:10 addiesi ail ambiguity41 at. tiCle -4 is not unusual: In the context; of the law of armed conflict, intelpreters faced with changed or unexpected circumstances 'lave not lietitated.to resort to a tre
:to avoid a non-cantextual reading ofa tr eat yteria atys fundamental principles ;wrenched front its original .
23 This Prhicipie 'would apply even itthe entity' thai does not =41 the burdens of the COnvenfion is or becomes actively infinsed in the armed conflict between the signatory states. See art. 2(3) (providing that when a ''power in conflict", is not a Party, *Powers who are parties remain bound brit only in "their mutual relations"); art. 4(2) (providing that "Nationals of a State which is not bonndbythi .
Convention are not protected by it.").
19
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• • context, might lead to a Conclusion that does violence to the treaty's .object and purpose; And they have done so even when construing treaty text far less ambiguoustan article 4; • • .. ForeXample, when the Allied Powers occupied Germany and Japan at the end of
. the Second World War, they didnof apply rates pf inlligempt occupation set fort•in the •
Hague Regulations r- and in particular the dut y to .4'respecta, unless absolutelyprevented, the laws in force in. the cotunry," see Hague Regulations, ttrt. 43 — that were premised
n
fundamental assuniptions that did not apply in those contexts tend o Similarly, following the , of active'hostilities in the Korean War, the Vnited NatiOnsPOWerti, declined to
sretaptaetsr.iate POWs who feared to return to their countries; even though article 11$ of GPW active th* POWs "shall be released and repattiatecl without delaY after the cessation of and even though article 7 of GPW makes the right 'Of repatriation none • waivable The United States and others supported this conclusion,based on the •
fundamental purposes undeklying the Convention. In 106$ i the PriAry. Council declined
to extend POW status under GPW to nationals. ofthe State that captured them even
gticl6 4• of GPW containS•no such express exCeption This conclusion, which is generally approved bycornmentaton47"was prenusej on the view that the fundamental. purpose,f the Convention was "forthe profection.of the iTa:64iiii..of the natiOna•forces of each against the otlati s *
the Inteanational iznialal Tribintal for the Fornior YttgoolaviaCIC116
tWiee read GC. article 4's definition. of "protected Persons" to band° within the crass
'
See, e.g., R.Y. Jennings, Gov,irarseat in CPIMOSSis. 6101:4 ihat the assumptions of the Hague Ittplatious 711, 23 Brit. Y.B, 11411. 1.12, 135-36°(1946) the : Concerning the need to protect the sovereignty of . legitimate government of die occupied territory: and the ,inhabitints of the paciapiedieztitOrY *Una .exploited for the prosecution of the occupant's Wat—'Were not served applicationf tip tic nond Germany, and 60.neb!cling that "the' whole rniron d'etre ofthi law tif belligerent ocCupation is. -absent in the circumstances ofthe Allied occupation.. of aeltriann in& attempt to apply it vioukt bP W- 4manntT4047104.ktiiitooGovernnient of Germany 67 (1947) ("li is not.. . surprising that Internationallaw should not.be fully eTiipped to.deal with an entirely . „Uapipeedenkd situation" following post-World War lIoccupations.); Adam R.Ob' eite, What is a Military Or: ovation?, 55 Brit. Y.B. Intl L:240, 26077a(1984) (citing Icimit* and Pricchnan apprnving G achard van Gla,hn, The Pectipation OfEnentiTerritory.: ly); .Pdittgerent Occupation 281 l'Commentary of the l aw and Practice of (1957) (Hague Rigulations "lost their applicability to' he Allied occupation of Geima#17 • • • ,•'.*)•
25 See, e.g., U.S. Dep't of State, Memoramiwn 14: Legal Considerations Underlying the Position of the.United Nations Command Regarding the Issue ofWorCed.Repatrlation'of Prisoners of War (Oct. 24, 1952); Howard S. Levie, Prisoners of War in International, Armed Conflict, in 5.9 U.S: Naval. War College International Law Studies 424 (1978):
26 Public Prosecutor.Die ilea Koi, [196812 WI*. 715, 7i (P.a.) {concluding that GPW "does not extend the protectiongiven to prisoners of War to nationals of delainbaig kweel•
Sec Ian IIrovhdie, Law of War-Geneva Convention Relatil4 M. the Treatment of 11143one-is ,of War, AraCid .F---burden of proof on issue ofprotected status-status of nationals of a person owing
'allegiance' to the detaining power, 43 Brit•Y.B. Intl L 234, 235-37 (1968-.1969); R,R.. Baxtix, Notes and Comments, The Privy Coancil on the Quart-cations OfBelligerents, 63 Ant J. 790, 291(1969); GJA.D. Draper, The Status of Combatants and The QueStionolduerilla Warfare, 45 Brit. Y.B. WM: - :173, 193-94' n..3 (1971). •
iW.L.R. at 726.
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uprote*cted persons" nationals - found." The IG. of the party to the conflict in Whose hands they are TY tribunals reached this conclution,,deSpite article 4's limitation of
.:.`protected person" status to• those. who find themselves in the hands ef apaiqm "afwhiehr
sthoeuyrc aer e not nationals," GC.art. 4(1), on the basin of OC's'fundamental p urpoSCS a
look to beicnatueSrPer tehtaevfte guidance,: the ICT.Y tribunals explained, that was appropriate to :inters of GC never Could hair(' ceintenvlated scopeOr 0g91,4anee ef "Present* inter-ethnic Confilatt.'! /°• in these Qa...SCS, the I= tribunals'. read behind article 4's assumption that persons shauld be identified. With the State of their nGaCti onality for purposes of article 4 "Protected person" status Whenithe context iut which was tieing applied did not trar out article 4's Statc-centric. assumptions. In Tactic, for exIniple, an ICTY Appeals Chamber noted that cic'was drafted When "Wars were
pnmaxily betWeen. Well-established States," and Concluded,.based OC's 'objeCt and
purpose," that its State,centrie, terms should not be applied WeedenlY4a unanticipated
"modem inter-ethnic armed conflicts such'at that in the fanner YirgoslaTiiit." 3 ' Even. .more relevant for present purposes, the ICT ,Y Ca ' circu art wiled that in such ehanied
rnstanCes, "ethniaity may become detenningive oftiatienal allegiance,"
p
Cujiider these conditions, the requireinent of nationality nce," and that retectecipersons.,7 is aVen leis adequate ta defte Pro:sqciaor Tadtc„" Case No;:.IT-944-4. Appeal§ Chamh.Cr Jtidgement,.15 July 1999, 166.:-'2 short,* Medic looked behind•Ge art. 4's nationality criterion to find a criterion that better served crc's object and purpose when applied to Unfereseen circumstances;
In determining whether at Qaeda operative"; Wairt "protectedperson" status in.
Occupied Iraq, it as at leatt as appropriate: as in'the cases desetped above, if mitortbro so, to look to the,fundamental principles Underlying OC detertnine tieW genuine
ambiguity in article 4 should be racily :ed in a context wholly outside the contemplation of
'S drafters. Our recourse to these fUndamental prineipleS euplifii4 the conclusion th the, caveat addressed inn Section. p. t?OlOw, aI Ow& operatives Capthrecl in occupied q lack `protected , pereon" stattis Under
29 Prosecutor v &eke,* ki
Jr Casa No • IT-954414; Appe,als go, a nab r Judgement, 24 Mar. 2000,, • •
•
n 151-52, and in Piosecutor Talc, Case No.: rr-94- APPe43 Chillier Judgement, IS July' 1999. II 163-70. cy Flores v. :9outheru Peru Copper corpq M. E.3(1140, 169(2d Cie; 2003) (mating
"G
although the actions .oi the triburgi tiay that have some persuasive vain; it is not . veered to create binding norms or customary international law"); Statute of the International Criminal
for Former yugoalivia (as amended through MaY'l,
wider current law), $,.003) (limiting Writ's Charter to prosecutions
. • , • , ' ' • .. ' . ' . • . • • . , - • ' • '
. .. . . , . . . , .. 3° Prosecutor v, ,ileksovski, Case.
... : 11 151,.52; sea also .Prosecutor v. 7'441c, No IT-95-14114, APpeals Chainher Iiidgenient, 24 Mar..2000, CaseNo.: 1T-94:1-.A, Appeals Chamber Judgement 15 July 1999,
• . 31 1"rosecu'ior v Tatlic„. Case No IT 94-1-A, Appeals Chamber Jtidgement, 15 July 1999, ' 166. . . • . 32 _ . See also Theodor Menin, Editorial Comment,. CiasaifiCation of4 4rmed Conflict hi the Former .. Yugoslavia: Nicaragua's Fallout, 92 Am I Intl. L 236, 211 (1998 lasect criteria fo r 'P rote;otcd Person' status] la ..."..:Ooeflieb ) ("Enforcing fattiol 4's nationality- • .• . political entity and the resulting struggle involving.the disintegrationt of a.state or , bdweenpeopleif, and,e0-11+1 groups, would be the haigiltol.,..7... ..... legalism. .. . In many contemporary conflicts, the disinteiration of states and the establish*nt'ofilOW.:7 ones make nationality too.tuessy a concept on Which to base the application ofinternational humanitarian . law.").
F
005950426.
1
7. :GC's Focus Protecting Citizens aidP- ermanent Residents'
. • We neat Consider the wWh ich: , ambiguity in article -4 in light Of the legit' land.-46 against Was negotiated, is well. as tlic nego• tiation ticcird itself See .Washington
Washington State,.Coirmerciat paiiengo:Fisihing Vesse 1fi;, 443 U.S. 658,665-69
(1979) (emnbaci7ing the historical background against which the treaty at issue was *
signed); Chan v. Korean Air ',ilia, 144, 490 U.S. 122, 134 (1989) (stating that a teat/es
negotiating record `nay of course ho consulted to eluct 'date at ext .t hat • amb'i gue.Us• ")- Vienna ConventiOn'on the Law of.Treaties; opened fOr Signature MaY 23, 1969, art. 32,
1155 U.N.T.S. 331, 340 (providing* the "preparitorYwOric of thetreity"•may ha
' consulted to resolve ambiguities in a treaty's text)t.h ese sourced suggest that the .
protectionsthat'GC provides:for tomeunlawful combatants in occupied territory wereiMended
Primarily to protect citizens and peaing;n6tti residentswho participate in popular. resistance movements•—'persona who *aa. a general matterar e. not i-frqlt)t'lr. 814140 members of anill*Itional terrorist engaged in global armed , agairlat the occupying powert: conflict
Pre-GC :intetuatiohal law fodosed on the occupying power's duty, toprotect the
occupied territory's citizens and inhabitants; as distinct cramoSher grOups. The preamble
to. the 1907 Hague 134841004s (whicliGC eipresslypre*ves; :see cc art. 154) declared that "the inhabitants' remained under the protection of the ”principles of the 14* of •nations• as they, result from the usages among civilized peoples; from the laws of huinanity, and the dictates of the public conscience,". Hague ltegulations;
Subsequent intemational law retained this g9eralfoCu,s. POr:examPle, the Pond=
Charter for the lnfuemberg Trials cohsideted a .depoxiation" to be a'war :Crime ,;and legal,
'aCtionsiundee. tfUtt ipmnunent inciudingjudgMents of the International Military Tribunal
at Nuernberg Were used to punish actions directed.at the occupied country's citizens
and inhabitants 3 3 • ' ' • ,
GC derives from this tradition. Article 65 of GC specifies that penal pm/40ns. enacted by the bccypyi4 Power 'Shall hot Cenie•inttfforcebeford they have been -.
and brought to tha1:noWledge of the in40/44*i`their'Own language?' In
,,Iilse thinner, GC requires theOccUpying Po*.er.:10 enattekthe foOd aLt]i4144ical:suipiiee ' "of the &illation" (art. 55), to =tire relief schemes. if "the; whole or OA of the • opulation of an occupied iegitory-4'iri4deviat'ly,Atiiiplice. (art.:59), and to '.faMlitate the proper working of all institutions devoted to the care and , edhcation of children" (art,'
33 The tacit On protecting citizens Enid inhabitants was evident, for example, in the definitions of the crane, of "deporting civilians' that emerged Om United States v Afilch, 2 Trials of War Criminals Before the Nuemberg Military Tribunals, 353 0.946-00),(14 trial of Field Marshal DUO hfileb).. The indictment in Mitch defined the crime of deportation to involve "chinas," the prosecutot destril: .recl the crime to involve f'People who had been upreoted frona.their homes in occupied tencitOries," the three-Judge •. Tribunal convicted the defendant for the catcne as charged, JudgeMnstnanno'a
descsib e dth e crime as extending to he. oceOpied territory's "inhabitAnrs,7 and theec icnocnncr.orrinri,ngg opinion •. : Judge Phillips described it as upiniOn7Of extending to the pnlafion" of occupied territory: :td at •p 1-93,190; 879;
F
005950426 —
50): Each of these provisions suggests obligations focused on persons who constitute the
permanent residents of thearea.
A similar •focus underlies article 5•s express proteetion for "spies," "saboteurs,"
and "person[s] under definite suspicion of • activity hostile to the security • ' of the • . Occupying Power." In the travaux preparaloires, the GC drafters assumed that the protoctions they conferred on certainunlawful combatants were for local citizens or
permanent residents Who , engaged in activities hostile to the occupying power. For
example, in describing article. 5, the Cornmittee111 Report said: "In occupied territory, the
fact that a national of the Occupied POwer harbours resentment againsrthe Occupying
Power is likewise'insufficient (to, deny rights Of communication under Article . 5)." 2A
at . 815.• Similarly, the Soviet-delegate assumed that protected unlawful
Combatants in occupied. territory were "citizens"'of the.occupied country .. See 2B.Pinal Record at 379 ("I would like to ask the originators of article 3A, and thOse.whO light- 4 heartedly support it, whether theire is in the whole world a country whose citizens would
be loyal td the Occupying Power."P
Th6 Protections for POWs in occupied teilitorY, conferred by GPI' confirm the
Uepeva conventions' fOcus on the citizens and permanent residents of oticupied.terri'toq,
aS.ppposed toint iettal. terrorists:: GpWextende&POWitatus 'for the fast time to
teat= of . . .. militias and members of oth. er volunteer corp, it MC-tiding thOse of
;organized resistrinr-e movements belonging to a Patty to conflict and:perating inor
Outside.their oWn territory, even ifthis territory as oceupietic!' proWded,that They satitfy
criteria for lawftd•comhatancy GM, art. 4(AX2) (emphasis added). The
`drafters of GPI,V. included this Provision to confer future protections On, sox= (though not atl), of the actions of resistance movements like those that fonght .the Nazis in occupied
:territory in WorldWar /1 35 In article 4(A)(2)'s negotiating history i the tielegateS .
Understood and assumed that thernilitia and VolUnteer pips entitled to protections in'
occupied territory were indigenous resistance movements comprised of citizens, or at the
very least Perm4neut•residellts, of the ocouPied countries. And in the .debate over the
" cy: id. at 379 (state/uteri of Mr Moropov. (Soviet Union)) ("Nor has • this stipnlation an3r bearing '
whatsoever 04 roe*rs of the clvtldatt pptalanon i).roccnplediterrirpria snipected of activity hostile to the
' 4tate.") (emphasis a4411); ('What 41.4411 said ahtint allen nationals. dirt enemy Power who may be in
(e pt ate; the territory of a belligerent. is even More applicable to the civilian pfOcrupied terramiter)
35: See 2A Final Record at 54(a Commitke Renert'ileSer&cl the protections accotdcd by article
4A(2) as "an important innovation.::. which haS become necessary its a result.of the experience of the
Second World War"); Comnientar;, III Geneika Convention Relative to the Diattnent ofPrisoners' of War . 58 Criaii S. Pictet 1960) ("[I]he tram `resistance! ..-. constiOnes a clear reference to the events of the Second World War and to the iresistancn moveincn.ta Which Wate.actiye'dniing that Conflict"); Levis,
supra, at 39-40 ("During World War If So-.Called resistance movements sprang up or were Created wit' bin
the territory of most of the countries occupied by an enemy, whether the OccUpation was partial'or It was with respect to the status of niernbers of ittese types ofretittancineovententy that the 1949 Diplomatic
Conference was attempting to ill*, proviSiOni (emphasis added).
.!6 See, e.g., 2A Final Record at 240. (describing the remarks of Mr. Cohn (Denmark) that
"Civilians who took up arm in good faith for the defence of their country against an invader alenl have the benefit of the protection accorded to prisoners of war.") (empl►nais added); a at 241 .(descaing
F 17-3- 2,5
C 0 5 9 5 4 2 6
OPW Convention, numerOuSparticiPants expreSsed sympathy for combatants;fighting the
oceupying pbwerfor reasons:of "patriotism" —S. term that ciapily assumed citizens: In short, both GP.* and to refer to OC contemplate protections in occupied territory
primarily for local citizens.or permanent residents. When such perSona fight on behalf of
Movements that respect the laws and customs Of War, they receive POW status, see GPW• arts. 4(A)(2);:4(A)(6); those-wfao do not respect .the laws and cus*.s. of wa•receiVe - "Protected person" status under GC. :
, s1,11; GC's drafting history, read in con shows .that. Od er "protected Person" States GC was designed tO • primarily on citizens or Pertnanent residents 'PlOccupied
territory, whether unlawful combatants or bloc: but at on OpOritdioii of an international organization who, aro in'Ocoupiod territory' as part of z global aritaid conflict It natural to view citizens gad pennanentresidents:Of ()caroled territory ast per ions who . ‘.`firid themselves" in the 1320; of the . Occupying Power,- and the resistance actiVities of .
Citige4s'41141)ergia*nt. M64(1013.06 clearly • t.ho contemplation of
conventions." By contrast, with4 caveat noted directly below, Inernbers of an
• internatiOnal•eirorist organization in occupied territory to attooktho. pm:(v** Ocver clearlyoutsidethe tore concern of GC and are difficult to cha4ctetiZeas persons whO
ate
7.0 themselves" in occupied teiritprAcspeciallySinee the Confetral on them of
Otected person'? status. Would create tension witlithe GetteVa. Conventions'
ihndainental principle that warring * entities must acceptthe Conventiona! burdens irr did claini their benefits:
3. Iraqi Qitecie tura in Oeappigdiraq:,
•
. • ",. •
;'T'he analysis thus Arsuggests that the ambiguity 4 should be resolved by excluding al Qacda terrorist operatiyes foulad in dcciapied Iraq, from ilvotootod pahspe g. •
• • • , •
the remarks of wit, Larinale(PM'nee) aihaVing "riCalied .the diScUisiOas on; th0,41bilict i4Ort;moO of tV.artatwe nicrOnely-which had taken place at the COnferince of GeVernmeritticperte) (ansphasii added);* at 242 (deaoribiug Mr. Pesmacogioti(Greece) as u4igg that the terni '''inetarlict of a riddance .
mavein:ern" be included in artiole 4(A) and licit the term "parti,Sanr sloe "it was a question of natiOn.al, and .
not politiCal, movernents") (enaphasis,added); id: at 42,6 (sonanariiingGeneralShivin'd (Soviet Union)
re*arks that lelivijians who took up arms ;add-once Of the liberty of tOeir. country should he entitled to 'satire protection as pemb•e rs*of armed forces' (einpliasii;atided) n• ' .•
37 See, a g , 2A Fetal ..Recdrd at 242 (deseiibizi,g theien4s of General8idiatrov. (Soviet Union) as
• .
describing the militia and volunteer corps as "organizations Which hid out ofpatriotism taken up aims to defend. the honour and.the independence of their countlya(emphisis added) ; at:422 (describing lYfr.
Gardner (England) characterizing guenlia forces as Horse that Ikegart by being groups of patriota and gradually established diseiplinel (emphasis-added). :.*
" We note that stateless noncerelYatc. ytts r'- fght also be among the residents that The GC tianiera -
meant to include within "protected persons," at least when they "ftnd thCroselveS" in occupied totritory at
the time of occupation or as a result of haying fled theriafter occupation as refugee of
of Mr, Cai
Aisal Aecord at 621 (observation war. See, 4-, tberg Norway). that "et-GOafia,O Jews dooitiOon
2A
Gormao a.bitd tbe: Govgnmen4 who found •hemselves in tarritOYies subsecitrentlY eccupie'dbY the.Gernian Army shoUld be able to claim protection under the Cnomtifoe n.'); see also 4 Pictet; Commentary at 47. (stating
that article .4 was drafted to ensure that protections would not be withheld from refugees tvliolad fled
from their homeland and no longez considered theriselves, or were no longer considered; '4) OatiO± -, that F-ouctitrY-1- 4-of • .•
A
17,2J-14
•
0 05950426
. Howe*, there is a sub, nationals eategery Of al Qieda 0er-40es Whoare Iraqi or Permanent residents for. which the analysis differs: tinhice nen-Iraqi
tentoristoperatives, citizens and permanent residents of Iraq could be Said te. 4find themselves" there evean Under the natio* re ding of artiele ..4. Such peisolls! Ptes000 in
.occupied Iraq eould be attributed as much to Va*, status aacititens dr:perinanont
' residents who owe that county allegianCe as'iC) their sta.*/ as agents of an international
terrorist organfration engaged in global annedlcoullict • with the occupying powers.
'Furthermore, as explained above, thenegotiatingrecord makes clear that GC was
.PFLarily designedle protect citizens and permanent residents of occupied territory,
. • including those who commit hod* acts against** oaeupYingPower. 'Protected'
person".. status under GC exists primarily for the benefit of these persons even when they
act as unlawful combatants. it is true that reading:article 4 to protect anYene. in .I.Mq who fights on behalf of art enemy force that does not, assume the burdens . of GC is in tension • with benefits-bidden principle, described'abeVer:' BUt in the context ofcititens or
permanent residents of Ira4, conclude that the text of article 4 (which is less
ambiguous in this narrow context) and the negotiating retord provide More cOmpe ing
interpretive guidance than the'guidanee we derive from the benefit4nr4clis principle;
.
.. • We conclude that the following persons;lf 'Captured in occupies , are
tested persons" within the meaning of GC article 4: as. natio nationals of a
State not bound by the Convention, nationals of a co-belligerent State, and:operaOesof
the at Qaeda terrorist organization who are`neUragi nationals or permanent residents of
CO5950426
• Selected Provisions of the Gtneya Convention RelatiVe to otaction of Civilian
Persons ,
, The Undersigned Plenipotentiaties.of the Governments represented at'he Diplomatic
Conference held 'at Geneva from 21 April to 12 August 1949, for the purpose of
establishing a Conireaation for' the Protection of.Civilian follows: ci in Time.of War, have 'agreed as
• GENERAL PROVISION. S
1011
The'ltgli,COntmeting Parties.undertake to' espect gii4 to ensure respect for t Convention in all' cireinnstan*, the pr oga . ', •
Artick 2
addition to the proVi?ions'Whiehthnli•be'implenaentrin Pezce4iii; thisPrescPt.. nyention `apply to cupiis of declared .War or of anytthet armed co ca which ).56.4 arise between two ormere of the High Contraeting Parties,. evw. if the state uf wiris
not recognize;c1.by one of them.
The Convention ,shalt also apply to •all caset'efpartial iotailObniation of the teuitory
of a yligh Contracting Party, 'even if, the said occupation meets with no alined resistance.
Although one of tie Powers in .c4ndict may no be a party tOthe preient CouVention, the • Powers who Are parties thereto shall ratnain hpund 'by it in their mutual relations. They
:.shall Eurtherinorthe bound by the Convention in relation to the said PoWer ; if the latter accepts and ;applies the provisions thertof.
Article 3
• In the case of armed con tot not of en international characlia. occurring in the territory of
one of the High. Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the folloWing ProvisioPs:
(1) Persons taking no active part in'the hestilities, including. members of aimed forces, •who have laid down their arms and those placed hors de combat by sickness, wounds.
. detention, or any other cause; shall hall circumstances be treated humanely, without any
adverse distinction foUnded on race, colour, religion or faith, sex, birth or wealth, or, any •
other 'thmilar criteria. . .
A-1
005950426
To this end thefolloWing.acts are and shall reanaiii prohibited at any time and in any
place whatgoever•ith respect to the above-mentioned persons:
(a)violence to life and person, in.particular murder of all kiwis, migilatioP , cruel
treatrneait and torture;
(b)taking cif hostage,s;
,
•(c) outrages upon personal dignitY, partieular humiliating and d• egrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment
pronounced' y a regularly constituted court, affirding all the judicial•guarantees which
are recognized. as Indispensable by civilized peoples.
(2) The.wounded. and sick shalt be collected and cared for
An impartial hi!manitarian bOdy, such as the International Committee of the Red + °r'oss,
may offer its services to. the Parties to the. conflict.
The Parties to the wallet should further endeavour to bring into force, bymeans
special ageements, all :or'.part of the other provisions thepresent Convention.
The application ofthe Preceding provisions. sball not affect the legal status of the Parties
to the confliet
Article 4
• • •
Persons*protected .theconventlan'are those who, "fit a Overt moment and in • ''Manner whatsoever, find Ocruselyea, incase of a conflict pr occupation, in the hands of a
•Tarty to "the conflict or Gectipying.Powar ofewl4b.theyarenotnationals, • • •
•
The provisions of Part TI are, however, wider in application, as defined in Article 13.
Persons protected by• the Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Alined Forces in the Field of 12 August 1949, or by the Geneva
ConventiOn for the Amelioration of the Condition of Wounded, Sick and. Shipwrecked
'Members of Armed Forces at 'Sea of 12 August 1949, or by the Geneva Convention
relative-to the Treatment of Prisoners of War of 12 August 1949, shall not be considered
is protected persons within the meping of the present Convention.
- • Nationals of a state which isnot boUnd bythe Convention are not protepted by it
Nationals of a neutral State : ho find themselves in the territory of a belligeient'State; and
nationals of a co-belligetent 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.'
A-2
F 7, 3 2, 9
CO5950426
Where.inlhe territory of a Party to the conitict, the latter is Satisfied that an individual
Protected Pertcn,ii definitely suspected of 'or engaged in activities hostile to the securitY
of the State, such individualPersoh shall net be entitled to claim such rights and
'..privileges 'under the present Convention: as:: *eltild, if eiercised in the favour of such
individual person, be prejudicial to the security of such State:
Where in occupied territory an individual protected is detained as a spy or
sabotehr, or as apexSon under definite suspicion of activity hostile to the seenrity of the
9c9PPYing I'ower, li,. those securitlis0.
requires, be regarded as having forfeited guts of comunication tisidci. the Present
Conkintion.
•
In each case, suCh•ertoriathall nevertheless be-treated Inunimity and in case of '.
'trial; shall not be deprived of the.rights of fair and iegtilar trial pretcribed by the present
:Convention..They shall also be granted- 'the l righta and priYilegeS! Of a protected person
. under the present Conventionat t4i earliest date'consiStent with security of State or
Occupying Power as casemay he.%
*Attiele 6:
The preient ConventiOn shall apply 0OtnAhe outset of any conflict or occupation
mentioned in .4.iticle 2. •
In.the territory of Patties to the conflict, the application of the present Convention shall
cease on the general close'of military Operations.
in the case of:occupied territory, the application. of the present Convex tien Shull cease
one year after tlie general Close of military 4erations; hoWever, the Occupying Power
shall be bound, for the duration the occupation, to the extant that such Power exercises
the I:actions of government in Bach territory, by .the provisions of the following Articles .
of the present Convention': 1 Ito 12, 27, 29 tei 34, 47, 49,',9, 52, 53, 61 to.77, 143.
. reestablish
. .
;Protected persons-A/nose release, repatriation Oer ment may take place after
such dates shall Meanwhile continue to benefit by the present Convention. '
. .
GENERAL PROTCC i ION OF POPULATIONS AGAINST CERTAIN
CONSEQUENCESOF•WAR
Article 13
CO5950426
.• . The provisions, of Part it cover the whole of the populations of the countries i•conetict,.
withent any adverse distinction' based, in pnrtictallt, on race, nationality, religion or
. political opinion, and are intended to alleviate the aufferings caused by war.. •
Article 14
• • .
In tiMe of Peice, the High Contracting Parties and; after the outbreak of bostilitiesp the
Parties thetet:9, MAY establish in their own territory and,• if the need arises; in occupied
areas, hospital and safety Zones and localities so organized as to protect from the effects
• of war, wounded, sick and aged PersonS, children under fifteen, eiliectanilliOthera and
Mothers of children under seven: ' • •
•
Upon the outbreak and ditting the Course of hestilities;the Parties concerned may
Conclude agreements on mutual. recognitien Of the zones , and localities they haVe Created.
They may for this purpose' niplement the provisions:of the Draft Agreenrent 'annexed to
. the present ConVention,,With such amendments as they May consider . •
ProteCting Powers and the International . COMmittee of the Red cioss are inVited to
lend their good offices in order to facilitate` the.hislitiiden and recognition _Of these
hospital and safetY zone's and:loPaliiies. •
PART
STATUS AND TJR.ATMENT o/O' PiriOTECTE PktSONS
6716$
Provisions. Common to the Territoples „Of::fdie isartleitii the e6iiiki io.oeopi
••
Ter
. • ... ,• • •.
•,• " Te tories'
Protected persons are eniitled, in all circumstances, to respect for their persons, their
honour, their fainily rights, their religious .conVictions and practices,' and their manners
• and custom., They shall at all to be humanely treated, and align be protected
• especially against all acts of violence or, threats thereof:and agaie t insults and public
'curiosity.
Women shall be especially protected against any attack on their honour, in particular ,
against rape, enforced prostitution, or 4ny form of indecent assault
Without prejudice to the provisions relating to their state of health; ago' and sex, all
•protected persons shall be treated with the same consideration by the Party to the conflict
AL4
F0:5.31
005950426.
in Whose pottier they are, without any adverse.dis tion based, in.particular,' on race,
religion or politica opinion.
However,. the Parties to the Conflict .may take suehmeasureS of control and•securitym •
regard to protected Persons. as may b•e necessary as a result of the war. • - •
The presence of a protected person may not be "used to Oder certain points or areas
inimune frail/ military operations.
are Prohibited., ' . -; •
•No physical or natira coercion shall be exercised" against protected persons; in particular
,toObtain information from themm or from third partios.
No protected person maY be punished for sit Offence he she has not personally
:committed.. Colleens D penaltiess.and acwise all measures of intimidation or of terrorism
•
Allot in the 'territory of
Article 35 -
, .
All protected .persona .who may desire to leave the territory at the outset Of, or during a
conflict, Shall be entitled tO;do:sti viMiesi their departure it contrary lathe national
iigerest.l o. f the State. The -.lineations of anclipersOni to leaVe shall be decided in
accordance with regt4tielitablished preccdUres and the decision shall be talien as
rapidly as possible, Those persons per tOleive:rtiiy pit/Vide theinselvesmith the
necessary funds.:for, their jot4eYand take with them a reasonable amount of their effects
and articles of personal use.
. . .
If any such pers0 is refUsed permission ; to leaVe the territory, he shall be entitled to have
refusal reconsidered, as soonis possible 6y an appropriate court or adininistrittive board
designated by thepetaining PoWer fax that purpose:
A-5
F 1 7- 2.
Article 45
CO5950426
a•request, representatives of the ProteetingPoiver . unless reasons• of secuii
preyed it, o• r the persons concerned object, be fUrnished with the reasons for refusal of
. any reqUest for permission to leave the •territory and be given, as expeditionsly as , • -
possible; the names of all persons who have been denied permission to leave. _
Article •36
, , • •
• Departures permitted wader the foregoing Article shRit bi carrie4 out in satisfactory
Conditions as regards safety, hygiene, sanitation and fciod. All costs in connection'
•therev4th, from the point of exit in the territory of the Detainhig PoWer, shall be borne by
the country• of destination, or,, in the' ase of accommodation in a neutral. country, by the
Power whosenationale are benefited_ The practiCal details of such Movements may, if
necessary, be, settled by special. agreements between the powers Concerned.
'•The foregoing shall -not prejudice such special agreements as may be concluded between
Piwliesto•he conflict concerning: the exchange and repatriation of their nationals in
`enemy hands. ". ' ;.- . •
• Prelected_perso
Convention.
. • This provision shall in no Way constitute an obstacle to the repatriation -of protected.
.'ParScOns, or to their re urn to their country of residence after the cessation of Inofftilities. ,
Protected persons may be transferred by the Detaining Power only to a Power' which LI a
party to the present Convention:and after the Detaining Power has satisfied itself of the •
willin ess and.4aity of such transferee Power.to apply the.present Convention. If
protected pawns 'are transferied under such circumstances, responsibility for the
apPlication of the present Convention rests on the Power accepting their, while they are
:in its custody. 14vertheless; if that Power tailS -to Carry out the prOvisiOns of the present •
„Convention in anyimportant tespect, the Tower by which the protected portions were
•transferred shall, upon beingso notified by the PrOtecting Power, take effective measures
to correct the situation or shall the return of the Protected persons, Such request
must be Complied with. :-•: •
•
In no circumstances shall a proteeted person be transferred to a country where he or she
may have reason to fear persecution for.his or her political opinions or religious beliefs:
The provisions of this Article do not constitute an obstacle to the 'extradition, in
pursuance of extradition treaties concluded before the outbreak of hostilities; of protected
persons accused of offences against ordinary criminal law.
. , .
shall not be transferred to a Power which is not a party to the
33
CU5950426
SECTION III
Occupied Tefritories
Article 47
•Protected persons who im ocCupied territory AA not be deprived, in any case or in
any manner whatsoever, of the benefits of the present Convention by any chrnge
nm^duced, as the Mutt of the occupation ofa territory, into the- institutions or
- government of thp said tea-itcry, nor by anyagreoment•concluded between the authorities
of the occu•p ied territories and the Occupying Power, nor by any annexariOn by the latter
of the whole or part of the occupied territory: • • •
Article'48
•. .
Protected persons . who are not nationals' of the Power whose:,territory'is ooeuPiddp may
•wailtheriaSelves of the right to leave the territory subject to the provisions of Article 35,
and decisions themon. shall be taken in aCeoftialle.o with twoodure which the
• Occupying Power shall establish in accordance with the said Ariicle.
Article 49
Individual or mass :forcible transfers, as well as,deportations of prote•aeaNrso• uk from
occupied territory' to the territory of the. Ccupying PowG4 or. that of any Other ootmillr,
occupied or not, are prohibited, regardless of thek motive.
yeVertheless, the Occupying PowerinaY•undertake tota.'or partial, evacuation of: a'gi*:..•
security of the potit!iattor' ei reasons sod toeVacnatioris
may not involve the displacement of protected persons.ontsido the bOurtds of •
tdhies pOccupied territory except when for Material reaiebiti it is impossible t o audit • lacement. Persons thus eiacuite4:01ail be transferred thoir hP4tes as loan 44.
iti;IStilitieS in the area in queitiOn have et;as. ed,. ' • ' •
h . . e. cenPying Power undertaking stich,trarisfera OreVaeriationsshatlerisure i to
Oatest practicable &tent .010 t4.6
protected person s, that the re/a* • fiar&effe4Cd'in 000_0.044 0,40.00 pt. hygien
safety and nutrition; and ttiat miimbers'ef. th, e sanno. 'are not Separated.
The occupying Power shall not detain protected persons in an area particularly exposed
to the dangers of war unless the security of the population or imperative military reasons
• -
. . • The Protecting Power shalt be informed of any transfers and evacuations as soon as they
have taken place.
so demand:
A-7
173,34
005950426 .
The•Occupying Power shall not deport or transfer parts of its own . ivilian.popuiation into • 1.
Article 50
The Occupying PoWex shall, with the cooperation of the national and local authotities„
facilitate the proper working of all institutions devoted to the care and education ofchildarn.
..; .
The Occupying Power shall:take all necessary s fa hate the identi#cption of
children and the registration of their parentageat May not hi any caie, oharge their
persimal stops nor enlist them in fOrmations or organizations , Subordinate to it.
Should the local institutions be inadequate for.the purpoSt, the Oceiii3yingPoier shall
make arrange:Mints-for the maintenance .and education, if possible fiy.persons of their
own nationality, language auditligion, of children who are orphaned or Separated:froM
their, parents as a result of the war and whit.. Cannot be adeqUately cared fOrliY a new : •
relative or fi-iend:• :* . : : .
•
• •
r
. A special section of the Bureau; set up in atcordance with Article 13•6 041for taking all necessary steps tO identify 1 be re4Poni children whose identity is in doubt Psattiddiss of
their parents or other near relatives 'Should always be recorded if available.
The OcetipyiniPower shallnot hinder the application of any preferential Measure rs in
regard to food, medical ' oaS and protection against the effects otwar which may haVe
been a.dopted•prior to the occupation in favour of children under fifteen years, expectant
mothers; and itiothers of children under seVenyears,
To the fullest extent of the means available to it, the Occupying Power has the .dutY'of
-ensuring the ibod and medical supplies of the population; it phOuid,,imparticulart bring in
the necessary foodstuffs, fined .,al stores' other articles.if the resources of the occupied
territory are inadequate.
The Occupying PQWer may not requisition foodstuffs, articles or medical supplies
available m the occupied territory, except for use by the occupation forces and
administration personnel, and then only if the requirements of the civilian population
have been taken into account. Subject to the provisions of other international
Conventions, the Occupying Power shall make arrangements to, ensure that fair yalue
paid for any requisitioned goods.
A-8.
the territory it occuPies.
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CU5950426
The Protecting Power shall, at any tinieibe at libeity to Verify the state of the food and . -
medical supplies in.oecmied territories, except where temporary restrictions' are made
' necessarY bY imperative military requiremmts.
Article 59
If the whole or part of the population of an Occupied territory is Inadequately supplied,
the Occupying Power shall agree to relief schemes on behalf of the; said and
shall facilitate them by all: tine at. its qisPogal
Such schemes, which may be undertaken either by States or by impartial humanitarian
organizations such as the;international Committee Odle Red Cross,.shell consist, in
particular, of the Provision of consignmente of foodstuffs., medical suPPliea . and niodag.
All Contracting Parties shall :permit the.free passage of these consignments and shnli
PowTer gra:Tn.n ig free passage to consignments on.their way.to territory occupied by an
lieme Party, to the conflict shall, however, have thee& to search. the consigartionts, to
regulate their passage awarding to presedbed times and routeo, and to bereasonaln
satisfied Omagh the Pram ' Vag Power that these.donsignments are to be used fot the
relief of the needy pepulation and axe not to be used for the benefit of the Occupying
Power-
.Artiele 65
The penal provisions enacted by the Occupying Power.shall not come into force before
they have been published and brought to knowledge of the inhabitants in their own
len ge. The effect of these.enal provisions shall not be retroactive..:...
Article 68 .
,•
ProteCted persons who conuldt an offence:which is solely intended tO harat the
OF411PS'ing Power, but which does not constitute an attempt on the life or EMI/ of
'members of 'the occupying forces: or administration, nor a grave collective danger, nor
seriously damage the property:of the occupying forces er administration orthe
installations used by them rsVall be liable to internment or simple imprisonment, provided
the duration of such internment or imprisonment is proportionate to the.offence
committed. •
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19:3-34c)
Article 76 .•
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.
Furthermore, internment or ithprisOmnent shall, for such offences, be the only measure
adopted for depriving protected persons of liberty. : The courts:provided fir under, Article
66 of the present convention may at their discretion convert sentence of imprisonment
.to one of internment for thesame period.
The penal provisions promulgated by the Occupying Poiver u accordance Vvith Articles
64 and 65 may impose the death penalty on aproteCted person only in cases where the
• person is guilty of espionage, of serious acts of sabotage against the military. installations .
of the ,Occupying Power or of intentional offences which have causedthe•death of one or
More persons, provided that such offences were pimishable by death under the le* of the
occupied in force. efore' the occupation began
e deatlipenaltyrnay not be pronounced on a protocted person unless the attention of
the court has been particularly called to the'fact that since-the accused is not a national o
the *Occupying power, he is not bound to it byany duty of allegiance.
In any case, the:death penalty may not be pronounced 011 a protected person who was
der eighteen yeats of at the tirno'of the offence. •
tected persons shall not be aired, proac coted Or convicted by the Occupying Power.
for acts committed or for opinions expressedbaore the occupation, or during a
.
'tempera/7 interruption Thereof, with the exception of breaches of the laws and customs of
war. •
NatiOnals of the eccupymg POwet who, before the outhreakothestilities, haVe sOughtrefuge
in the territory of the. occupied State, shall not be arrested, prosecuted, convicted
• or deported from the ocouPied territory, except for offences committed after the otabreak
o.f Or for offences under cemnionlaw Committed before theoutbreak Of
hostilities which, according ta lhelaiiv of thtiOecupieil-gtatecixxinld have justified
ithctraclitiOn in time of peaCe.. ,
Protected persons accused of offeades shall be detained in - the Occupied country,. and if
convicted they shglI servetheir sentences therein. They shall, if possible; be separated
from other detainees and shall enjoy conditions of food and hygiene which will be
sufficient to keep.them in good -health; and which will be at least equal to those obtaining
in prisons inthe occupied man
They shall receive the medical attention required by their state ofhealth.
0
F
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•
l'hey shall alsehaVe the right to tedelie anYSPiritual assistance which they. may recluire.
Women ball be Confined in separate quartera and Shall.be under the direct :supervision of
Women. „. .
, • • .
Proper regard.shall be paid :to the special. treatment glue to inhume.
• Protected persons who are detained shill have the right. to be visited by. elgates of the
Protecting' ower:and of the International conrnitteaof iheRed CrOsS,* accordance
with the provisions of Aiticle 141.
Such persons. MAD have the right tO reteive at lead one relief parcel monthly.
•ske7[`i014 .IV • -•
legations: for the Treat.140ot of Internees
, • .
MA/ 1i I.
4exieral Provisiorgi.
Article 79
. .
. The Parties to the conflict shall not intern ,p rotected pomons, except hi acc.ordexic. 'with
. . .
. the:preVisiong. of Aiticles Al, 0, 45, =58 and 78: .• . .' ' . •
Article 80
internees shall, retain their full civil dip:achy and
varhe c,ompattl'ale with their' status. •
catercito 'stich.eitendartt tights es
PART IV
1EXEC151:10N QF THE. or,r4S1164.4'.
'SECTION I -
eral.P.14°4SIOns
Sg(41.Q.NII
• . Final P,rovislons
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CO5950426
Miele 150
The present Ccnirention is established in English and in French. Both texts are equally
authentic: •
• The Swiss Federal..C,Cuncil shall arrange for official translations of the Convention to be
made in. the Russian and Spanish languagps.
'Article 154
lu the relations between the PciWers Wh6 are bound by the Eiegiie Onn.voitionS reSpecting
, : • . . •
the Laws and P6tOMS Of *or :on 1:4i124; whether that:Of29,1uly-1.$99 i, or lliat'of 1$
OcApher 1907; and who are pAtties t9 the Piegdt Convention, khid last enjtvention s1 1
sitpplcuent.,ary to Sections 11.04 of the lt,,e 41ons annexed mentionedCOnlientions pi:The Higne: to the above, '
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