|
MEMO 28
U.S. Department of
Justice
Office of Legal Counsel
Office of the
Assistant Attorney General
Washington, D.C. 20530
March 19, 2004
MEMORANDUM
TO: William H. Taft,
IV
General Counsel
Department of State
William J. Haynes,
II
General Counsel
Department of Defense
John Bellinger
Legal Adviser for National Security
Scott Muller
General Counsel
Central Intelligence Agency
FROM: Jack Goldsmith
Assistant Attorney General
Office of Legal Counsel
Gentleman:
Attached is a draft of an opinion, requested by Judge Gonzales,
concerning the meaning of Article 49 of the Fourth Geneva Convention as
it applies in occupied Iraq. I would appreciate any comments you may
have at your earliest convenience. As always, it is important that
you keep this draft opinion a very close hold. Thanks.
Attachment
cc: David Leitch
U.S. Department of
Justice
Office of Legal Counsel
Office of the
Assistant Attorney General
Washington, D.C. 20530
DRAFT 3/19/04
MEMORANDUM FOR
ALBERTO R. GONZALES, COUNSEL TO THE PRESIDENT
RE:
Permissibility of Relocating Certain "Protected Persons" from Occupied
Iraq
Article 49 of the
1949 Geneva Convention (IV) Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287
("GC" or "Convention") prohibits "[i]ndividual or mass forcible
transfers, as well as deportations of protected persons from occupied
territory to the territory of the Occupying Power or to that of any
other country, occupied or not, ... regardless of their motive." [1]
This opinion elaborates on interim guidance provided in October 2003
concerning the permissibility under GC of relocating certain "protected
persons" detained in occupied Iraq to places outside that country. [2]
We now conclude that the United States may, consistent with article
49, (1) remove "protected persons" who are illegal aliens from Iraq
pursuant to local immigration law; and (2) relocate "protected persons"
(whether illegal aliens or not) from Iraq to another country to
facilitate interrogation, for a brief but not indefinite period, so
long as adjudicative proceedings have not been initiated against them.
1. Removal of
"Protected Persons" Who Are Illegal Aliens
We first consider
whether removing a "protected person" who is an illegal alien from
occupied territory constitutes a "deportation" or "forcible transfer"
within the meaning of article 49(1)'s prohibition. We consider each term
in turn.
We begin with
"deportation." Under United States law, this term denotes the
removal of an alien. See, e.g., 8 U.S.C. 1227(a)(1)(B) ("Any alien who
is present in the United States in violation of this chapter or any
other law of the United States is deportable."). Black's Law Dictionary
of 1951, two years after GC, confirms the point. It defines the term
"[i]n American Law" as "[t]he removal or sending back of an alien to the
country from which he came." [3] If this American law meaning of
"deportation" were the meaning of the word in article 49, then that
article would apply to the removal of "protected persons" who are
illegal aliens from occupied territory.
But article 49(1) --
or at least the core of it -- represents a codification of the customary
international law of armed conflict as it stood at the time the
Convention was drafted. See, e.g., Alfred M. De Zayas, International Law
and Mass Population Transfers, 16 Harv. Intl L. J. 207, 210 (1975)
(asserting that article 49(1) "merely codif[ies] the prohibition of
deportations of civilians from occupied territories which in fact
already existed in the laws and customs of war"). And in that body of
law, "deportation" is a term of art with a quite different meaning
that appears to be derived from Roman law. Black's Law Dictionary
carefully contrasts the American law meaning of "deportation" with its
meaning under Roman law: "A perpetual banishment, depriving the banished
of his rights as a citizen." Black's Law Dictionary 526 (4th ed.
1951) (emphasis added); see also id. at 525 ("Deportatio. Lat. In the
civil law. A kind of banishment, where a condemned person was sent or
carried away to some foreign country, usually to an island ... and thus
taken out of the number of Roman citizens. ") (emphasis added). Under
this Roman law definition, a prohibition on deportation would not apply
to the removal of illegal aliens. As shown below, the term "deportation"
in the international law of armed conflict possessed this Roman meaning
in the nineteenth century, through World Wars I and II, and at the time
of GC's drafting.
As early as 1863,
Article 23 of the Lieber Code stated that "[p]rivate citizens are no
longer murdered, enslaved, or carried off to distant parts." F. Lieber,
"Instructions for the Government of Armies of the United States in the
Field," art. 23 (1863) (emphases added) [4] While this provision does
not itself use the term "deportation," it is widely recognized as a
principal progenitor of the customary prohibition on deportations during
wartime codified in article 49. See, e.g., Jean-Marie Henckaerts,
Deportation and Transfer of Civilans in Time of War, 26 Vand. J. Trans.
L. 469, 482-83 (1993) (citing article 23 of the Lieber Code as support
for the conclusion that article 49 embodied customary international
law); Natsu Taylor Saito, Justice Held Hostage: U.S. Disregard for
International Law in the World War II Internment of Japanese Peruvians
-- A Case Study, 40 B.C.L. Rev. 275, 305-06 (1998) (stating that "the
United States had condemned the deportation of civilians in Lieber's
Code") (emphasis added). Significantly, the Lieber Code's prohibition
of carrying off citizens to distant parts reflects the Roman meaning of
"deportation" described above.
Article 23 of the
Lieber Code reflected the state of the customary laws of war during the
Civil War, and from that time through World War 1. Despite this rule,
Germany deported 160,000 Belgians from the Belgian "Government General"
and the Zone d'etape to Germany, during World War I. Germany's action
was widely condemned as a violation of customary international law.
See, e.g., Myres S. McDougal and Florentino P. Felciano, Law and Minimum
World Public Order 806 (1961); John H.E. Fried, Transfer of Civilian
Manpower From Occupied Territory, 40 Am. J. Intl L. 303, 308-11 (1946).
For example, the United States State Department protested during the
War that the deportation of Belgians violated "humane principles of
international practice." The Krupp Case, 9 Trials of War Criminals
Before the Nuremberg Military Tribunals I, 1429-30 (1946-49). And after
the War ended, the Responsibilities Commission of the 1919 Paris
Peace Conference condemned "[d]eportation of civilians" as a violation
of the laws and customs of war. See Commission on the Responsibility
of the Authors of the War and on Enforcement of Penalties: Report
Presented to the Preliminary Peace Conference, 14 Am. J. Int'l L. 95,
114 (1920). While the condemnation, as sometimes articulated, was
directed at the deportation of inhabitants of occupied territory, see
International Law 345-46 (Hersh Lauterpacht ed., 6th ed. 1944) (stating,
in light of "civilized world['s]" reaction to First World War
deportation of Belgians and Germans, that "there is no right to deport
inhabitants to the country of the occupant") (emphasis added), nothing
in the historical record suggests that this term was intended or
understood to include illegal aliens, that the condemnation extended to
the removal of such persons pursuant to local law, or that the customary
law of war had evolved so significantly beyond the Lieber Code's
prohibition.
Furthermore, article
49 was written against the background of World War II, and it is the
particular atrocities of that war that most directly inform the text. In
World War II, Nazi-occupied countries were treated as "vast reservoirs
of manpower," and deportations of civilians for purposes of forced labor
and slave labor "assumed staggering proportions." [5] The Nazis also
employed mass deportations to resettle from areas conquered or annexed
by Germany indigenous non-German populations, such as "over 100,000
French who were expelled from Alsace-Lorraine into Vichy France and over
one million Poles who were deported from the western parts of occupied
Poland (Warthegau) into the so-called Government-General of Poland."
Alfred De Zayas, The Right to One's Homeland, Ethnic Cleansing, and the
International Criminal Tribunal for the Former Yugoslavia, 6 Crim. L.F.
257, 264 (1995). These roundly and universally condemned atrocities
explicitly informed the drafting of Article 49. See, e.g., 2A Final
Record, at 664 (summarizing statement of the Chairman, which "noted that
the Committee was unanimous in its condemnation of the abominable
practice of deportation... He suggested that deportations should, in the
same way as the taking of hostages, be solemnly prohibited in the
Preamble"); Jean S. Pictet, Commentary on the Geneva Convention Relative
to the Protection of Civilian Persons in Time of War 278 (1958) ("There
is doubtless no need to give an account here of the painful
recollections called forth by the 'deportations' of the Second World
War, for they are still present in everyone's memory.... The thought of
the physical and mental suffering endured by these 'displaced persons',
among whom there were a great many women, children, old people and sick,
can only lead to thankfulness for the prohibition embodied in this
paragraph, which is intended to forbid such hateful practices for all
time.").
Here, again,
however, there is no evidence that the outrage of the world extended to
the removal of illegal aliens from occupied territory in accordance with
local immigration law, and indeed there is no evidence that
international law has ever disapproved of such removals. Cf. Awn Shawbat
Al-Khasawneh, Special Rapporteur; The Realization of Economic, Social
and Cultural Rights: The human lights dimension of population transfer,
including the implantation of settlers, Progress report prepared for the
Economic and Social Council, United Nations Commission on Human Rights,
E/CN.4/Sub.2/1994/18, available at http://www.unhcr.ch/Huridocda/Huridoca.nsf/0/e74eOcf.
§ 51 (citing Guy Goodwin-Gill,
International Law and the Movement of Persons Between States 262 (197))
("Among the grounds upon which the expulsion of aliens on an individual
basis is justified in State practice are: entry in breach
of law [and] breach of conditions of admission."). The ICRC's account
illustrates the point. In summarizing the war-time events that were
uppermost in the minds of the drafters as they framed article 49(1),
the ICRC Commentary lamented, in particular, "that millions of human
beings were torn from their homes, separated from their families and
deported from their country, usually under inhumane conditions."
Pictet, supra, at 278 (emphases added). And in discussing pre-Convention
customary law (including the Nuremberg Trials), the ICRC Commentary
remarks that a "great many ... decisions" by the Nuremberg "and other
courts" have "stated that the deportation of inhabitants of
occupied territory is contrary to the laws and customs of war."
Pictet, supra, at 279 n.3 (emphasis added) [6]
Accordingly, we
conclude that the word "deportations" in article 49 bears the
term-of-art meaning that it bore in Roman times and in international law
from the Lieber Code through World Wars I and II and right up to the
drafting of GC: removal of a person from a country where he has a
legal right to be. Cr, e.g., Community for Creative Non-Violence
v. Reid, 490 U.S. 730, 739-40 (1989) (invoking the "well established"
principle that "[w]here Congress uses terms that have accumulated
settled meaning under ... the common law, a court must infer,
unless the statute otherwise dictates, that Congress means to
incorporate the established meaning of these terms"); Air France v.
Saks, 470 U.S. 392, 399 (1985) (applying similar principles to treaty
interpretation). Indeed, "deportation" continues to retain the same
term-of-art meaning in the law of international armed conflict today.
See Rome Statute of the International Criminal Court, July 17, 1998,
U.N. Doc. A/CONF.183/9, reprinted in 37 I.L.M. 999 (1998) article
7(2)(d) (defining the "crime against humanity" of
"deportation or forcible transfer of population" as
"forced displacement of the persons concerned by expulsion
or other coercive acts from the area in which they are lawfully
present, without grounds permitted under international law")
(emphasis added); Prosecutor v. Krnojelac, Case No.: IT-97-25, Appeals
Chamber Judgement, 17 Sept. 2003, Separate Opinion of
Judge Schomburg §15 ("[T]he actus
reus of deportation is forcibly removing or uprooting individuals from
the territory and the environment in which they are lawfully
present.") (emphasis added); Prosecutor v. Blaskic, Case No.
IT-95-14, Trial Chamber Judgement, 3 Mar. 2000,
§ 234 ("The deportation or forcible
transfer of civilians means forced displacement of the persons concerned
by expulsion or other coercive acts from the area in which they
are lawfully present, without grounds permitted under
international law.") (emphasis added; internal quotation marks omitted).
For all these reasons, it follows that article 49's prohibition on
"deportations" does not bar the removal of "protected persons" who are
illegal aliens from occupied territory pursuant to local immigration
law.
Article 49 prohibits
"forcible transfers" in addition to "deportations." We conclude that
what has been said about the latter largely applies to the former.
Passages from the JCRC Commentary and the negotiating record illustrate
that the words "transfers" and "deportations" were used loosely and, at
times, interchangeably to capture the atrocities practiced by the Nazis
and the Japanese in occupied territories. See 4 Pictet, Commentary at
278 ("There is doubtless no need to give an account here of the painful
recollections called forth by the 'deportations' of the Second World
War. It will suffice to mention that millions of human beings
were torn from their homes, separated from their families and deported
from their country, usually under inhumane conditions. These mass
transfers took place for the greatest possible variety of reasons.... ")
(emphases added); 2A Final Record, at 664 (summarizing statement of Mr.
Slamet (Netherlands) that "[i]n Indonesia, during the last war, numbers
of women and children had been transferred to unhealthy
climates and forced to build roads, and had died as a result") (emphasis
added); id. at 664 (summarizing statement of Mr. Clattenburg (U.S.),
which "quoted the case of part of the population of the little island of
Wake who had been transferred to Japan") (emphasis added); id. at 664
(summarizing statement of the Chairman, which "noted that the Committee
was unanimous in its condemnation of the abominable practice of
deportation ... . He suggested that deportations should, in the same way
as the taking of hostages, be solemnly prohibited in the Preamble.")
(emphasis added).
Furthermore, at
least when used in connection with "deportations" as a term of art in
the international law of armed conflict, "transfers" also appears to
connote the relocation of an individual from an area where he is
lawfully present. See, e.g., Rome Statute of the International
Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9, reprinted in 37
LL.M. 999 (1998) article 7(2)(d) (defining "deportation or forcible
transfer of population" as "forced displacement of the persons concerned
by expulsion or other coercive acts from the area in which they are
lawfully present, without grounds permitted under international law")
(emphases added); Prosecutor v. Blaskic, §
234 ("The deportation or forcible transfer of civilians means
forced displacement of the persons concerned by expulsion or other
coercive acts from the area in which they are lawfully present, without
grounds permitted under international law.") (emphasis added; internal
quotation marks omitted).
Consistent with GC's
negotiating record and this more general term-of-art usage, many sources
speak of article 49(1) -- and implicitly acknowledge its
limitation to those lawfully present in occupied territory --
without making any distinction between "forcible transfers" and
"deportations." See, e.g., S.C. Res. 694 (1991) (Under GC, article 49.
"Israel, the occupying power, must refrain from deporting any
Palestinian civilian from the occupied territories" (emphasis added));
Kasawari v. Minister of Defence, HC 456/85,39(3) Piskei Din 401,
digested in 16 Israel Y.B. Hum. Rts. 330, 334 (1986) ("[w]hatever the
interpretation of Article 49 may be, it is not applicable to the
expulsion of a person who enters an area illegally after the
commencement of its belligerent occupation."); Kurt Rene Radley, The
Palestinian Refugees: The Right to Return in International Law, 72 Am.
J. Intl L. 586, 598 (1978) ("Article 49 forbids the forced and
permanent removal of persons from territory to which they are native.")
(emphasis added); Jean-Marie Henckaerts, Mass Expulsion in Modern
International Law and Practice 144 ("Article 49 comes into play whenever
people are forcibly moved from their ordinary residences.")
(emphasis added); see also Raymund T. Yingling and Robert W. Ginnane,
The Geneva Convention of 1949, 46 Am. J. Int'l L. 393, 419 (1952)
(article 49(1) serves the purpose of preventing a belligerent occupier
from ''buttress[ing] its home economy and war industry with the forced
labor of the inhabitants of territory which it has occupied")
(emphasis added).
We conclude,
accordingly, that article 49(1)'s prohibition on "forcible transfers,"
like its prohibition on "deportations," does not extend to the removal,
pursuant to local immigration law, of "protected persons" who are
illegal aliens.
This conclusion
comports with common sense. It would be surprising if the Convention
were a welcome mat to occupied territory, granting all who enter in
violation of local law an instant and (during occupation) irrevocable
right to stay. Cf. Affo v. Commander Israel Defence Force in the
West Bank, 83 I.L.M. 139, 153 (Isr. 1988) ("[O]ne should not view the
content of Article 49 as anything but a reference to those arbitrary
deportations of groups of nationals as were carried out
during World War II for purposes of subjugation, extermination and for
similarly cruel reasons. [One should reject an interpretation entailing
that] a murderer who escaped to the occupied territory would have a safe
haven, which would preclude his transfer to the authorized
jurisdiction."). It is also consistent with the general presumption
under customary international law, as reflected in Article 43 of the
Regulations Respecting the Laws and Customs of War on Land, annexed to
Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18,
1907, art. 42(1), 36 Stat. 2277, I Bevans 631 ("Hague Regulations"),
that an occupying power should maintain and enforce the domestic laws of
the country occupied. [7] Article 43 of the Hague Regulations
provides: ''The authority of the legitimate power having actually
passed into the hands of the occupant, the latter shall take all steps
in his power to re-establish and insure, as far as possible, public
order and safety, while respecting, unless absolutely prevented, the
laws in force in the country." The exigencies of "public order and
safety" will not often "absolutely prevent[]" enforcement of local
immigration laws. To the contrary, enforcement of such laws will usually
prove essential to maintaining the security of the occupied territory.
And while the occupying power may be "absolutely prevented" from
enforcing local law by a requirement of the Geneva Conventions, see
Memorandum for Alberto R. Gonzales, Counsel to the President, and
William J. Haynes II, General Counsel of the Department of Defense, from
Jay S. Bybee, Assistant Attorney General, Re: Authority of the President
Under Domestic and International Law To Make Fundamental Institutional
Changes to the Government of Iraq 15 (Apr. 14, 2003) ("Fundamental
Institutional Changes Memorandum"), reading GC to require a suspension
of local immigration law would put great and unjustifiable strain on the
duty of the occupying power to "insure ... public order and safety."
[8]
Of course, even the
broadest reading of article 49 would not work a complete suspension of
local immigration law in Iraq. Rather, it would only suspend the
provisions for deportation. Violators of Iraqi immigration law,
however, are subject not only to deportation but also to imprisonment.
See Iraqi Law No. 118 of 1978, article 24; see also id., article 25.
Under customary international law as reflected in article 43 of the
Hague Regulations, then, the occupying power may be obliged to
enforce Iraqi immigration law at least to the extent of imprisoning its
transgressors. This requirement would flow not only from the obligation
to "respect, unless absolutely prevented, the laws in force in the
country," but also from the more general obligation to maintain "public
order and safety" -- which, whatever else it entails, would presumably
include the arrest of law-breakers. See Iraqi Law No. 118 of 1978,
article 25 ("The Director General [of Nationality] is vested with the
penal authority under the Criminal Procedure Law which empowers him to
detain the [illegal alien] in custody until he is deported or expelled
from the territory of the Republic of Iraq."). The Convention itself
makes this requirement explicit: "The penal laws of the occupied
territory shall remain in force, with the exception that they may be
repealed or suspended by the Occupying Power in cases where they
constitute a threat to its security or an obstacle to the application of
the present Convention." GC, art. 64. Under the broadest reading
of the prohibitions in article 49(1), then, an occupier might be
required to imprison illegal aliens, but forbidden from taking the
milder step of escorting them to the border instead. It is doubtful that
article 49's drafters intended such an implausible result.
In sum, historical
context as well as common sense demonstrates that the terms
"deportations" and "forcible transfers" in article 49 are terms of art
that do not apply to the removal of "protected persons" in occupied
territory who are present there in violation of current local law. We
conclude, therefore, that the United States would not violate article
49(1) by removing "protected persons" who are illegal aliens from Iraq
pursuant to local immigration law." [9]
II. Temporary
Transnational Relocation of "Protected Persons" to Facilitate
Interrogation
We next consider
whether GC permits the United States to relocate "protected persons"
(whether illegal aliens or not) from Iraq to another country
temporarily, to facilitate interrogation. Because GC makes special
provision for "protected persons" who have been "accused of offenses,"
we consider such persons first. We then consider "protected persons" who
have not been so accused.
A. "Protected
Persons" Who Have Been Accused ofan Offense
GC specifically
provides that "[p]rotected persons accused of offences shall be detained
in the occupied country, and if convicted they shall serve their
sentences therein." GC, art. 76(1). This provision is unambiguous:
"protected persons" who have been "accused of offenses" may not be
removed from occupied territory either for pretrial detention or for
post-conviction imprisonment.
We need not
attempt to ascertain the precise meaning of "accused" in this context,
for the following can be said with some confidence. Once adjudicative
proceedings have been initiated against a person, that person has been
"accused" within the meaning of Article 76. The initiation of such
proceedings may take any form. Cf. Brewer v. Williams, 430 U.S. 386
(1977) (noting that certain criminal procedure protections are
triggered by initiation of judicial proceedings, "whether by way or
formal charge, preliminary hearing, indictment, information, or
arraignment"), quoting Kirby v. Illinois, 406 U.S. 682 (1972). On the
other hand, mere suspicion of an offense would not constitute an
accusation, nor would an interrogation based upon such suspicion.
Cf. Wayne R. LaFave et al., 3 Criminal Procedure, § 11.2(b) (1999) ("[The
Supreme] Court [has] reaffirmed ... that a person does not become an
accused for Sixth Amendment purposes simply because he has been detained
by the government with the intention of filing charges against him"),
citing United States v. Gouveia, 467 U.S. 180 (1984). Thus, if an
occupying power merely detains a "protected person" for questioning even
if that person is strongly suspected of committing an offense -- that
person is not yet "accused" for purposes of article 76. [10]
In short, once
adjudicative proceedings have been initiated against a "protected
person," the person is "accused of an offense" for purposes of article
76, and may not be detained outside of occupied Iraq. But until that
time, article 76 does not apply.
B. "Protected
Persons" Who Have Not Been Accused of an Offense
Finally, we consider
whether Article 49(1)'s prohibition of "forcible transfers" and
"deportations" bars the United States from temporarily relocating (and
detaining) a "protected person" who has not been "accused of an offense"
to a location outside of Iraq to facilitate interrogation.
It might be
thought that the juxtaposition of the words "deportations" and
"transfers" in article 49 reflects a dichotomy between permanent
relocations, on the one hand, and temporary relocations, on the other.
The word "deportation" does clearly connote permanence. See Black's Law
Dictionary 526 (4th ed. 1951) (defining "deportation" in Roman law, as
"[a] perpetual banishment"); see also supra Part I (concluding the
meaning of "deportation" as a term of art in the international
law of armed conflict flows from its meaning in Roman law).
And the word "transfer," by contrast, does not necessarily have that
same connotation. See XI Oxford English Dictionary 257
(1933) ("conveyance or removal from one place, person, etc. to
another"). Were article 49 read in this manner, it would prohibit the
United States from temporarily relocating a "protected person" from Iraq
to facilitate interrogation.
While this dichotomy
has some surface appeal, we ultimately reject it. The phrase "forcible
transfers" and the word "deportations," when used as terms of art in the
international law of armed conflict, see supra Part I, and especially
when used in connection with each other, both convey a sense of
uprooting from one's home. See, e.g., Pictet, supra, at 278 (emphasis
added) (recalling the "deportations" and "mass transfers" that had
occurred during World War II, where "millions of human beings were torn
from their homes, separated from their families and deported from their
country, usually under inhumane conditions") (emphasis added); United
States v. Milch, 2 Trials of War Criminals Before the Nuremberg Military
Tribunals 353, 790 (1946-1949) (prosecutor's description of the crime of
"deportation" as involving "people who had been uprooted from their
homes in occupied territory") (emphasis added); Prosecutor v. Krnojelac,
Case No.: IT-97-25, Appeals Chamber Judgement, 17 Sept. 2003. Separate
Opinion of Judge Schomburg § 15 ("[T]he
actus reus of deportation is forcibly removing or uprooting individuals
from the territory and the environment in which they are lawfully
present.") (emphasis added). The concept of uprooting from one's home
clearly suggests resettlement, and while it may include not only
permanent, but also extended or at least indefinite resettlement,
it cannot reasonably be expanded to encompass mere temporary
absence, for a brief and definite period, from one's still
established home. Cf. Kurt Rene Radley, The Palestinian Refugees: The
Right to Return in International Law, 72 Am. J. Intl L. 586, 598 (1978)
("Article 49 forbids the forced and permanent removal of persons from
territory to which they are native," (emphasis added)); 2A Final Record,
at 664 (summarizing statement of Mr. Slamet (Netherlands) that "[i]n
Indonesia, during the last war, numbers of women and children had been
transferred to unhealthy climates and forced to build roads, and had
died as a result"); id. at 664 (summarizing statement of Mr.
Clattenburg (U.S.), which "quoted the case of part of the population of
the little island of Wake who had been transferred to Japan"); GC Art.
49(2) (carving out an exception to Article 49(1)'s prohibition of
forcible transfers or deportations to allow evacuations, including
transnational evacuations, required to protect the security of the
population or by imperative military reasons, provided that "[p]ersons
thus evacuated shall be transferred back to their homes as soon as
hostilities in the area in question have ceased"). [11]
This reading is
confirmed by the Convention's structure. As we explain below, if the
word "transfer" were read to embrace all temporary relocations, however
brief, it would create a prohibition inconsistent with a duty imposed by
another provision of the Convention, cause a different paragraph of
article 49 to create an implausible result, and render two other
provisions of GC entirely superfluous. These structural
considerations confirm that article 49 uses the term "transfers,"
consistent with its connotations when used as a term of art in
connection with "deportations" in the law of armed conflict, to refer to
relocations involving uprooting and resettlement for a permanent,
extended, or at least indefinite duration.
First, we consider
article 49's relationship with article 24. Article 24 provides: "The
Parties to the conflict shall facilitate the reception of ... children
[who are under 15, who are orphaned or separated from their families as
a result of the war] in a neutral country for the duration of the
conflict with the consent of the Protecting Power." This provision
appears in Part II of GC and therefore "cover[sl the whole of the
populations of the countries in conflict," GC, article 13, including all
individuals in occupied territory, see Pictet, supra, at 118-19, whether
"protected persons" or not. At first glance, article 24's duty to
relocate certain children -- including those who are "protected persons"
-- to a neutral country might appear to be flatly inconsistent with
article 49(l)'s categorical prohibition of "forcible transfers" and
"deportations" of "protected persons." The relationship between
articles 24 and 49(1) is easily understood, however, once it is
recognized that the crux of article 49(1) is a prohibition on
forcibly uprooting people from their homes. The children provided
for in article 24 are precisely those who have been orphaned or
separated from their homes already, by the war. Thus, relocating
such children (even without their consent) does not implicate the
central concerns of article 49(1).
Second, article
49(6) provides: "The Occupying Power shall not deport or transfer
parts of its own civilian population into the territory it occupies."
(Emphasis added). As the ICRC commentary explains, this provision was
"intended to prevent a practice adopted during the Second World War by
certain Powers, which transferred portions of their own population
to occupied territory for political or racial reasons or in
order, as they claimed, to colonize those territories. Such transfers
worsened the economic situation of the native population and endangered
their separate existence as a race." Pictet, supra, at 283. This
practice was often closely related to practices at which article 49(1)
was directed -- resettling the citizens of occupied countries out of
occupied territory. As the International Military Tribunal concluded
during the Nuremberg trial, the Nazis had undertaken a "gigantic
program" that included three "interwoven and interrelated" aims: "to
evacuate and resettle large areas of the conquered territories; to
Germanize masses of the population of the conquered territories; and to
utilize other masses of the population as slave labor within the Reich."
The RuSHA Case, 4 Trials of War Criminals Before the Nuremberg Military
Tribunals I, 125 (1949); see also id. at 610 (defendants charged with "[e]vacuating
enemy populations from their native lands and resettling so-called
'ethnic Germans' (Vollesdeutsche) on such lands").
Not only do articles
49(1) and 49(6) address related wartime practice, they both do so by
prohibiting certain transfers and deportations. There is a strong
presumption that the same words will bear the same meaning throughout
the same treaty. Cf. e.g., Air France v. Sales, 470 U.S. 392, 398
(1985). This presumption is particularly strong when, as here, the words
appear multiple times within the same article.
If "transfer" is
understood throughout article 49 to entail -- consistent with technical
usage -- permanent, extended, or at least indefinite resettlement, then
the scope of article 49(6)'s prohibition closely corresponds to its
intended purpose. By contrast, if "transfer" is understood throughout
article 49 to mean any relocation, however brief, then article 49(6)
would have a much broader scope and would prohibit an occupying power
from placing any members of its civilian population in the occupied
country even temporarily. While such a prohibition arguably might
not extend to civilian adjuncts to the military occupation
administration, it probably would at least extend to various employees
of private contractors and non-governmental organizations, Cf. GC III,
article 4 (A)(4) (including as potential prisoners of war "[p]ersons who
accompany the armed forces without actually being members thereof, such
as civilian members of military aircraft crews, war correspondents,
supply contractors, members of labour units or of services responsible
for the welfare of the armed forces, provided that they have received
authorization from the armed forces which they accompany"), Such a
result is far removed from article 49(6)'s intended purpose and
would work to the manifest disadvantage of the inhabitants of occupied
territory. For these reasons, it seems very implausible that article
49(6)'s prohibition of deportations and transfers into occupied
territory should be construed so expansively. See Zicherman v.
Korean Air Lines, 516 U.S. 217, 221-222 (1996) (choosing from among
different possible definitions of a treaty term the definition that
avoided implausible results). It follows, therefore, that article
49(1)'s prohibition of forcible transfers and deportations out of
occupied territory likewise should not be construed to extend to
temporary transnational relocations of brief but not indefinite
duration. [12]
Third, if article
49(1) banned all relocations out of occupied territory, no matter how
brief, two different provisions of GC would be superfluous. Article 51
of GC, which makes provision for compelling the labor of "protected
persons," provides: "The work shall be carried out only in occupied
territory where the persons whose services have been requisitioned are."
If article 49 forbade all relocations from occupied territory to another
country, this portion of article 51 would be entirely superfluous.
But "[t]his phrase, like all the other words of the treaty, is to be
given a meaning, if reasonably possible, and rules of construction may
not be resorted to render it meaningless or inoperative." Factor v.
Laubenheimer, 290 U.S. 276, 303-04 (1933). By contrast, if article 49(1)
does not forbid brief transnational relocations, article 51 serves an
important, independent purpose. While extended or indefinite
relocations for purposes of forced labor might constitute "forcible
transfers" and thus be prohibited under article 49(1) as well as article
51, at least some instances of briefly bringing an accused "protected
person" across a border to engage in forced labor -- on a daily basis,
for example -- would not fall within the scope of the prohibition of
article 49 but would be barred by article 51.
Even more relevant
to the issue at hand, article 76 of the Convention provides:
"Protected persons accused of offences shall be detained in the occupied
country, and if convicted they shall serve their sentences therein." If
article 49(1) forbade all relocations, however temporary, from occupied
territory to another country, then this portion of article 76 too would
be entirely superfluous. It follows, therefore, that briefly
relocating accused "protected persons" outside of occupied territory for
pre-trial detention and interrogation -- though forbidden by article 76
-- falls outside the scope of the prohibition of article 49(1). But if
briefly relocating an accused "protected person" to a foreign country
for detention and interrogation (though forbidden by article 76) is
beyond the scope of article 49, then the otherwise indistinguishable act
of briefly relocating a "protected person" who is not accused to a
foreign country for detention and interrogation (which is not forbidden
by article 76) must also fall outside the scope of article 49's
prohibition. [13]
It might, at
first, appear surprising that a different result obtains for accused
persons than for those who are not (or are not yet) accused. But special
procedural protections often attach to individuals, including suspected
offenders, only after they are accused. See, e.g., U.S. Const.
amend. VI (''[in all criminal prosecutions, the accused shall enjoy"
various procedural protections) emphasis added); United States v. Ash,
413 U.S. 300, 320-21 (1973) (Stewart, J., concurring in judgment) ("[the
initiation of] adversary judicial proceedings ... marks the commencement
of the 'criminal prosecutions' to which alone the explicit guarantees of
the Sixth Amendment [of the U.S. Constitution] are applicable"). "It
is only at that time" that the government has committed itself to
prosecute, and only then that the adverse positions of government and
defendant have solidified. It is then that a defendant finds himself
faced with the prosecutorial forces of organized society, and immersed
in the intricacies of substantive and procedural criminal law.'"
United States v. Gouveia, 467 U.S. 180, 189 (1984) (quoting Kirby v.
Illinois, 406 U.S. 682, 689 (1972). And in this context, the
distinction between those who are and are not accused makes eminent
sense: only after a person is accused must he be allowed to prepare his
defense, and for this he may require access to resources that are
available to him only in his native country.
Thus technical usage
suggests, and GC's structure confirms, that Article 49(1)'s prohibition
of "deportations" and "forcible transfers" does not extend to all
transnational relocations. And, for the reasons we have explained, we
conclude that it is permissible to relocate "protected persons" who have
not been accused of an offense from Iraq to another country, for a brief
but not indefinite period, for purposes of interrogation. [14]
III. Conclusion
Article 49 does
not forbid the removal from occupied territory, pursuant to local
immigration law, of "protected persons" who are illegal aliens. Nor does
it preclude the temporary relocation of "protected persons" (whether
illegal aliens or not) who have not been accused of an offense from
occupied Iraq to another country, for a brief but not indefinite period,
to facilitate interrogation.
Please let us know
if we can provide further assistance.
Jack I. Goldsmith
III
Assistant Attorney General
_______________
1. The entirety of
article 49 is as follows:
Individual or mass
forcible transfers, as well as deportations of protected persons from
occupied territory to the territory of the Occupying Power or to that of
any other country, occupied or not, are prohibited, regardless of their
motive.
Nevertheless, the
Occupying Power may undertake total or partial evacuation of a given
area if the security of the population or imperative military reasons so
demand. Such evacuations may not involve the displacement of
protected persons outside the bounds of the occupied territory except
when for material reasons it is impossible to avoid such displacement.
Persons thus evacuated shall be transferred back to their homes as soon
as hostilities in the area in question have ceased.
The Occupying
Power undertaking such transfers or evacuations shall ensure, to the
greatest practicable extent, that proper accommodation is provided to
receive the protected persons, that the removals are effected in
satisfactory conditions of hygiene, health, safety and nutrition that
members of the same family are not separated.
The Protecting Power
shall be informed of any transfers and evacuations as soon as they have
taken place.
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 so demand.
The Occupying
Power shall not deport or transfer parts of its own civilian population
into the territory it occupies.
2. While GC confers
certain protections on "the whole of the populations of
the countries in conflict." GC, art. 13; see also id. Part II (Title)
("General Protections of Populations against Certain Consequences of
War"), it limits most of its protections to a narrower class of
"protected persons," id. art. 4. See generally
Memorandum for Alberto R. Gonzales, Counsel to the
President, Re: "Protected Persons" in Occupied Iraq (Mar. 18, 2004).
Among GC's provisions whose benefits are
generally restricted to "protected persons" are those included in Part
Ill, including Article 49. See Part III (Tide) ("Status and Treatment of
Protected Persons"). See also Jean S. Pictet, Commentary on the Geneva
Convention Relative to the Protection of Civilian Persons in Time of War
278 (1958) (stating that article 49 "prohibits the forcible transfer or
deportation from occupied territory of protected persons") (emphasis
added); id. at 283 ("describing the meaning given them ["deportations"
and "transfers"] in [article 49] paragraph 1, i.e., the compulsory
movement of protected persons from occupied territory") (emphasis
added).
3. Black's Law
Dictionary 526 (4th ed. 1951). Even in domestic Anglo-American law of
that time, however, "deportation" was not strictly limited to the
removal of aliens. See, e.g., Co-Operative Comm. on Japanese Canadians
v. Attorney-General for Canada. 13 I.L.R. 23, 27 (Privy Council 1946)
(sustaining deportation under Canadian war-related legislation of
British and Canadian nationals, "deportation" is "not a word that is
misused when applied to persons not aliens").
4. Issued for the
Union Army during the Civil War, the Lieber Code "was the first instance
in western history in which the government of a sovereign nation
established formal guidelines for its army's conduct toward its
enemies." Richard Hartigan, Lieber's Code and the Law of War 1-2 (1983).
It "has had a major influence on the drafting of ... such treaties as
... the Geneva Conventions and, of course, on the formation of customary
law." Theodor Meron, Human Rights and Humanitarian Norms as Customary
Law 49n. 131 (1989), and remains "a benchmark for the conduct of an army
toward an enemy army and population." Hartigan, supra, at 1.
5. See Myres S.
McDougal and Florentino P. Felciano, Law and Minimum World Public Order
806 (1961). On June 30, 1943, the German Commissioner-General of
Manpower declared that the number of foreign workers, including
prisoners of war, engaged in the German war economy reached 12,100,000.
See id.; see also John H.E. Fried, Transfer of Civilian Manpower From
Occupied Territory, 40 Am. J. Int'l L. 303, 312-13 (1946); 1 Trial of
the Major War Criminals Before the International Military Tribunal 244
(New York: AMS Press, 1971).
6
Again, we do not understand the word "inhabitants" to
include illegal aliens. During Nuremberg trials that addressed the crime
of "deporting civilians," the terms "citizens" and "inhabitants" were
used somewhat loosely and interchangeably. For example, in the trial of
Field Marshal Erhard Milch, the indictment defined the crime of
deportation to involve "citizens," the prosecutor described the crime to
involve "people who had been uprooted from their homes in occupied
territories," the three-Judge Tribunal convicted the defendant for the
crime as charged, Judge Musmanno's concurring opinion described the
crime as extending to the occupied territory's "inhabitants," and the
concurring opinion of Judge Phillips described it as extending to the
"population" of occupied territory. United Stales v. Milch, 2 Trials of
War Criminals Before the Nuremberg Military Tribunals 353, 691-93. 790,
879, 866 (1946-1949). We have found no evidence that any of these
formulations were intended or understood to reflect an extension of the
customary prohibition of deportations to reach illegal aliens. See also
The RuSHA Case, A Trial of War Criminals Before the Nuremberg Military
Tribunals 1. 610 (1949) (defendants charged with "[e]vacuating enemy
populations from their native lands") (emphases added).
7 Although GC
incorporates by reference the Hague Regulations when applied to
relations between "Powers who are bound by" the IV Hague Convention, see
article 154, Iraq is not a party to the Hague, Convention, and therefore
cannot be considered bound by that Convention as a matter of treaty law.
The United States is likewise under no treaty-based obligation to apply
the Hague Regulations to the occupation of Iraq because Iraq is not a
"Contracting Power" under the IV Hague Regulations. See Hague Convention
art, 2, 36 Stat. 2290 ("The provisions contained in the Regulations
referred to in Article 1, as well as in the present convention, do not
apply except between Contracting Powers, and then only if all the
belligerents are parties to the Convention.");
Memorandum for Alberto R. Gonzales, Counsel to the
President, and William J. Haynes II, General Counsel of the Department
of Defense, from Jay S. Bybee, Assistant Attorney General, Re: Authority
of the President Under Domestic and International Law To Make
Fundamental Institutional Changes to the Government of Iraq 10 (Apr. 14,
2003) (stating that "the Hague Regulations do not expressly govern the
U.S. conflict with Iraq"). The Hague
Regulations are, however, generally taken to be declaratory of customary
international law, and the United States may choose to comply with them
on that basis. See generally id. at 10; see also United States v. Yousef,
327 F.3d 56, 92 (2d Cir. 2003) ("Principles of customary international
law reflect the practices and customs of States in the international
arena that are applied in a consistent fashion and that are generally
recognized by what used to be called 'civilized states.''') For present
purposes, however, the point is that GC should, as a general matter, be
read to be consistent with the principles reflected in the Hague
Regulations, whether or not those Regulations apply in a particular
case.
8. It is
true that one might reverse the point and argue that the power to change
local immigration law under article 43 of the Hague Regulations amounts
to a power to eviscerate article 49's prohibition on "deportations" and
"forcible transfers." And indeed the custom and practice of
occupying powers have at times included "extensive changes" to the laws
of an occupied territory, Fundamental Institutional Changes Memorandum
at II. But this power does not amount to a power to eviscerate
article 49, because those changes may only be imposed in accordance with
certain "enumerated purposes," such as the occupying power's need to
maintain order and security, id. at 13, or in order to protect
rights guaranteed by the Convention, id. at 15. It follows that an
occupying power could not, for example, change local immigration law to
render all citizens of the occupied territory illegal aliens.
9. We recommend
that if the choice is made to pursue this course, careful records should
be maintained confirming the illegal status of each alien who is removed
under current domestic law.
10. Iraqi law
appears to draw a similar distinction, treating someone as a "suspect"
during an investigation and as an "accused" once he has been charged in
an indictment or summoned or named in a criminal arrest warrant. See,
e.g., Statute of the Iraqi Special Tribunal. art. 18(b)-(d) (Dec. 10,
2003) (available at http://www.cpa/iraq.org/human_rights/Statute.htm)
(using the term "suspect" to describe person under investigation and
"accused" to describe someone charged in an indictment); Iraqi Law on
Criminal Proceedings (Law Number 23 of 1971)
§§ 54, 56 (available at https:/www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/CLAMO-Public.nsf/0/85256alc006sc77385256d34006030dc/Body/M2/Iraqi%2520Criminal%2520Procedure%2520Code%2
520English.pdf?OpenElement) (referring to a complaint made against a
"suspect" and questioning of "suspects" by examining magistrate during
course of initial investigation): id. "87,93 (providing for issuance of
a summons to, or an arrest warrant for, an "accused"); id.
§ 105 (referring to person subject
to arrest warrant, or who may be arrested by someone who witnessed him
committing an offense, as an "accused").
11. For purposes of
resolving the questions presented, we need not resolve the precise
differences between "deportations" and "forcible transfers under article
49. We presume that these concepts do not overlap entirely. See Air
France v. Saks, 470 U.S. 392, 397-98 (1985) (where drafters use
different terms in the same treaty, they are ordinarily presumed "to
mean something different"). One possible distinction is that
"deportation," unlike "transfer," perhaps technically entails not only
uprooting and resettlement from an area where one is lawfully present
but also denationalization or extinguishment of any rights in one's home
country. See Black's Law Dictionary 526 (4th ed. 1951) (defining
"deportation") ("A perpetual banishment, depriving the banished of his
rights as a citizen."); id. at 525 ("Deportation Lat. In the civil law.
A kind of banishment, where a condemned person was sent or carried away
to some foreign country, usually to an island ... and thus taken out the
number of Roman citizens.") (emphasis added); cf. 2A Final Record at 621
(observation of Mr. Castberg (Norway) regarding the plight of "ex-German
Jews denationalized by the German Government who found themselves in
territories subsequently occupied by the German Army"). While we need
not embrace this distinction for purposes of this opinion, we note that
it is fully consistent with our analysis and conclusions.
12. We note one
significant textual difference between articles 49(1) and 49(6).
While the former provision bars only forcible transfers (as well as
deportations), the latter does not so limit the transfers that it
prohibits. We do not read the absence of "forcible" from the
latter provision to eliminate connotations of uprooting and
resettlement, but rather to indicate that (unlike article 49(1)) article
49(6) prohibits voluntary as well as coercive resettlement. This
interpretation is fully consistent with one of the principal purposes of
article 49(6). as indicated by the ICRC Commentary quoted in the text --
preventing an occupying power from colonizing occupied territory with
its own civilian population. Colonization, of course, can be
voluntary as well as forcible, but either way it entails uprooting and
resettlement.
13. We note that the
ICRC Commentary appears to take the position that the portions of
Articles 51 and 76 discussed in the text are, in fact, superfluous: "[t]he
provision [of article 76] under which any sentence of imprisonment must
be served in the occupied territory itself is based on the fundamental
principle forbidding deportations laid down in Article 49." Pictet,
supra al 363; see also id. at 279 (asserting without analysis that
Article 49(1)'s prohibition is "strengthened by other Articles in the
cases in which its observance appeared to be least certain" and citing,
inter alia, Articles 51(2) and 76(1)). We do not find this reasoning
persuasive. Article 49 may well lay down a fundamental principle, but
the scope of this principle must be ascertained by traditional rules of
treaty interpretation. including the rule that each provision of a
treaty "is to be given a meaning, if reasonably possible, and rules of
construction may not be resorted to render it meaningless or
inoperative." Factor, 290 U.S. at 303-304.
14. While we
conclude that GC does not prohibit temporary relocations of "protected
persons" from occupied territory for a brief but not indefinite period.
neither technical usage nor the Convention provides clear or precise
guidance regarding exactly how long a "protected person" may be held
outside occupied territory without running afoul of Article 49.
Furthermore, violations of Article 49 may constitute "[g]rave breaches"
of the Convention, art 147, and thus "war crimes" under federal criminal
law, 18 U.S.C. §2441. For these reasons, we recommend that any
contemplated relocations of "protected persons" from Iraq to facilitate
interrogation be carefully evaluated for compliance with Article 49 on a
case-by-case basis. We will provide additional guidance as necessary
to facilitate such evaluations.
Furthermore,
although we have previously indicated that only those who "find
themselves ... in the hands of a Party to the conflict or Occupying
Power" in "occupied territory" or the "territory of a party to the
conflict" receive the benefits of "protected person" status, Protected
Persons Memorandum at 5-6, this does not mean that a "protected person"
who is captured in occupied territory and then temporarily relocated by
the occupying power to a different location thereby forfeits the
benefits of "protected person" status. On the contrary, we believe he
would ordinarily retain these benefits. Cf. Art. 49(2)
(providing that, in some circumstances, protected persons may be
evacuated outside of occupied territory, but that such persons must be
transferred back to their homes as soon as possible).
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