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Iraq transfers war crimes?
By PAMELA HESS, Pentagon correspondent
10/26/04 -- (UPI) -- An international law expert from Harvard Law School says the U.S. government is guilty of war crimes for moving prisoners from Iraq to other countries.
The Washington Post reported Sunday that the CIA secretly transferred a dozen non-Iraqi prisoners out of Iraq in the past 18 months. The New York Times reported Tuesday the move is based on a new legal finding within the Bush administration that says the Geneva Conventions do not apply to foreign fighters in Iraq.
The White House made a similar determination with regard to the war in Afghanistan, saying enemy fighters there are not lawful combatants and therefore not entitled to the protections afforded by prisoner of war status. That applied to both Taliban and al-Qaida fighters captured in Afghanistan, the former because the United States said they represented an illegitimate government, the latter because it is a guerrilla organization not party to the 50-year-old treaty.
But four legal experts closely monitoring the U.S. government's legal maneuvering in the "war on terror" say the same reasoning cannot apply to Iraq, and an entirely different section of the Geneva Conventions applies to people captured in Iraq.
The Fourth Geneva Convention protects all persons who find themselves in an occupied country, provided they are not citizens of the occupying power.
The convention prohibits the forced transfer or deportation of individuals or groups from occupied territory to the occupying power or any other country, regardless of the reason. Some transfers within the country are allowed, if the security of the population or military reasons "so demand," but they may not be removed from the occupied country except "when for material reasons it is impossible to avoid such displacement," the convention states.
Anyone moved within the occupied territory must be registered immediately with the International Committee of the Red Cross, according to Harvard international law professor Detlev Vagts, a former military judge advocate general.
The Geneva Conventions were developed for good times and bad. They were not developed by people who were hopeless idealists," Vagts told United Press International. "They had seen the nightmarish conduct that the world saw in the '30s and '40s, and the framers of the Geneva Conventions were very well aware of the types of evil that people are capable of in times of war."
Vagts said the terrorist element in Iraq should not be afforded prisoner of war status, but their status is immaterial to whether they can be removed from the country. They cannot be transferred, according to Vagt's reading of the Fourth Geneva Convention, and indeed the White House's reading of the convention until March.
"These provisions are a response to Nazi atrocities," Vagt wrote in a memo to his Harvard colleagues when the Washington Post first reported the Goldsmith brief. "'Mass transfers' refers to the trains that moved from Drancy to Auschwitz. 'Individual transfers' covers a Nazi program called 'Night and Fog' (Nacht und Nebel) in which resistance fighters (unlawful combatants) from France, etc. were secretly whisked to
German camps for 'special treatment.'
"One concludes from this that the transfers of detainees from Iraq, whether or not they are Iraqis, is forbidden. A second violation arises from the failure to notify the International Committee of the Red Cross (the Protecting Power) at once."
"The Geneva Convention set a minimum floor of protection for everyone (in an occupied country). This seems to be the intention within it," said another lawyer, who is advocating for prisoners held by the U.S. military at Guantanamo Bay Naval Base. "This is the latest in a series of administration attempts to weaken the applicability and force of the Geneva Convention."
Gene Fidell, president of the National Institute of Military Justice, said he believes the administration is on shaky legal ground.
"I think they have a very, very hard case to make to take these people out of category of protected person," Fidell told UPI.
The March 19, 2004 draft memo, obtained Tuesday by UPI, was written by Jack Goldsmith, then former assistant attorney general in the office of legal counsel and now a fellow at the conservative American Enterprise Institute.
Goldsmith wrote the memo at the behest of Alberto Gonzales, then-counsel to the president.
"We now conclude 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 immigrants or not) from Iraq to another country to facilitate interrogation for a brief but not indefinite period," the draft memo states.
It goes on to parse the meaning of "deportation" and "forcible transfer" to determine whether that applies to "protected persons" -- that is, anyone of any nationality who for any reason finds himself in occupied territory. Goldsmith argues that under ancient Roman law, deportation meant removing a citizen from his home country and denying him the rights of citizenship forever. American law, on the other hand, considers deportation the removal of illegal aliens back to their home country or a third country.
He argues that Roman law would not prohibit removing an illegal alien from Iraq, and says that the Roman meaning of deportation was in use worldwide when the Geneva Conventions were written.
Goldsmith argues that while the world was outrages at the Nazi's mass deportations of Jews to slave labor camps and for extermination, there is no suggestion that the world, during and after World War II, would have been similarly repelled by the removal of illegal aliens.
He writes that documents written by the International Committee of the Red Cross to describe the Geneva Convention say that removing the "inhabitants" of a country is contrary to international law and custom -- not removing "illegal aliens."
Goldsmith also references the Rome Statute of the International Criminal Court -- a body the United States refuses to endorse -- to make its case on the meaning of deportation: "forced displacement ... from the area in which they are lawfully present without grounds permitted under international law."
The memo skips quickly over the Geneva Convention's broad and inclusive definition of protective persons: "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals."
Instead, Goldsmith writes that illegal aliens should not be confused with "inhabitants," according to his reading of international law it support documents.
"The 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 an instant and (during occupation) irrevocable right to stay," he writes.
He notes another tenet of international law, The Hague Regulations, requires that an occupying power uphold local law. However, as Iraq is not a party to The Hague Regulations, the United States as an occupying power is not obliged to adhere to the requirements of those laws -- thus suggesting the United States has the power to decide which of Iraq's laws it will enforce and which it will not.
Goldsmith concedes the Geneva Convention unambiguously prohibits the deportation of protected persons in Iraq who are accused of an offense, but maintains that simply being held for questioning by U.S. forces is not tantamount to being accused. The United States is holding thousands of Iraqis and other prisoners as "security detainees" -- not accused of crimes yet, but wanted for intelligence interrogation.
However, he argues that apparent contradictions in the Geneva Conventions open the door to temporary transfers of protected persons out of occupied countries. He notes a section of the treaty that expressly prohibits the transfer of an accused person out of the occupied country as evidence that, by his inference, suggests others may be transferred -- or else the entire section is superfluous.
"I think it does a disservice to that generation and all of its wisdom and experience as well as experts in intervening years to relegate these to the legal trash heap," said Vagts.
Goldsmith is to join Vagts on the faculty of Harvard Law School in January.
Copyright 2004 by United Press International.
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