Prisoner Transfers Out of Iraq

Frederic L. Kirgis
October 12, 2004
According to news reports, the U.S. Central Intelligence Agency (CIA) has transferred about a dozen non-Iraqi prisoners out of Iraq in the past 18 months. Their destination has not been made known. The news reports say that the Justice Department's Office of Legal Counsel has prepared a draft legal opinion that would authorize the CIA to take Iraqis out of the country for brief periods of interrogation, and permanently to remove persons deemed to be illegal aliens under "local immigration law." [1]
The United States government has acknowledged that the 1949 Geneva Conventions apply to the situation in Iraq. This Insight identifies and briefly analyzes provisions in those Conventions that might apply to these transfers. It does not reach conclusions regarding the lawfulness of the transfers under the Conventions. Nor does it consider international human rights norms that exist independently from the Geneva Conventions.
The Fourth Geneva Convention applies to civilians, including most--but not all--civilians in occupied territory.According to a handbook published by the International Committee of the Red Cross (ICRC), the organization that administers the Geneva Conventions, "'Civilian person' means any person who does not belong to the armed forces and does not take part in a 'levée en masse'."[2](A "levée en masse" would consist of inhabitants of a non-occupied territory who spontaneously and openly take up arms to resist an invading force.[3])
As the news media have pointed out, Article 49 of the Fourth Geneva Convention says, "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." Moreover, Article 76 says, "Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein." Article 1 provides, "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." Article 5 sets out a limitation on the rights of a protected person who is definitely suspected of activity hostile to the security of an occupying power, but the limitation extends only to forfeiture of the person's rights of communication under the Convention. Article 6 says that an occupying power is bound by these Articles (among other Articles) for the duration of the occupation. The United States and Iraq are parties to the Convention.
Article 4 of the Fourth Geneva Convention says that 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." The International Committee of the Red Cross' Commentary to the Fourth Geneva Convention mentions that during the negotiations leading to the adoption of that Convention, some speakers observed that the term "nationals" does not cover all cases. In particular, they said, it does not cover "cases where men and women had fled from their homeland and no longer considered themselves, or were no longer considered, to be nationals of that country."[4]It is possible that some of the recently-transferred persons are in this category, but it is not clear under the international law of treaties that this negotiating history could properly be considered in interpreting the seemingly unambiguous terms, quoted above, of Article 4.[5]
Article 4 also says that "Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent 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." This provision could apply to non-Iraqi nationals of a country that has normal diplomatic representation in the United States. The reason for this provision is that the diplomatic representatives can adequately protect the interests of their nationals by dealing directly with the government of the occupying country.[6] But it does not contemplate a situation in which those diplomatic representatives would be disinclined to protect their nationals suspected of terrorism that might, at least in part, be directed against their own government.
Article 4 goes on to say that persons protected by the other 1949 Geneva Conventions, including the Third Geneva Convention Relative to the Treatment of Prisoners of War, "shall not be considered as protected persons within the meaning of the present Convention." The United States has taken the position that prisoners who are members of Al Qaeda and related terrorist organizations are not prisoners of war within the meaning of the Third Geneva Convention. Members of such groups, if they are not members of regular armed forces, are not entitled to prisoner of war status unless they carry arms openly and conduct their operations in accordance with the laws and customs of war.[7]Thus they could be protected persons under the Fourth Geneva Convention, so long as they do not fall within any other exception to it.
Even if the local immigration law of Iraq allows deportation of persons deemed to be illegal aliens, the Geneva Conventions would trump domestic Iraqi law as a matter of international law--provided, of course, that the persons being deported are within the protection of the Geneva Conventions. Under the Vienna Convention on the Law of Treaties, which reflects customary international law, "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty."[8]
Finally, Article 147 of the Fourth Geneva Convention provides in part, "Grave breaches [of the Convention] shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: . . . unlawful deportation or transfer . . . of a protected person . . . ." The deportation or transfer would be "unlawful" if it violates Article 49.[9] Article 146 requires each contracting party to search for persons alleged to be responsible for grave breaches, and to bring them before its own courts or hand them over for trial to another contracting party that has made out a prima facie case against them.
About the Author:  
Frederic L. Kirgis is Law Alumni Professor at Washington and Lee University School of Law.  He has written books and articles on international law, and is an honorary editor of the American Journal of International Law. The author is grateful to Professor Mark Drumbl for his extremely helpful comments on a draft of this Insight. Any errors or omissions are the author's own.
[1] Washington Post, Oct. 24, 2004, p. A1; New York Times, Oct. 26, 2004, pp. A1, A14.
[2] Frédéric de Mulinen, Handbook on the Law of War for Armed Forces 13 (ICRC, 1987).
[3] Third Geneva Convention, Art.4.A(6).
[4] Commentary to IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, at 47 (ICRC, 1958).
[5] See Vienna Convention on the Law of Treaties, Arts. 31-32, 1155 U.N. Treaty Series 331, 8 Int'l Legal Materials 679 (1969). Article 32 significantly restricts recourse to the preparatory work of a treaty when the terms of the treaty have an ordinary meaning in their context and in light of the object and purpose of the treaty.
[6] Commentary to IV Geneva Convention, at 49.
[7] Third Geneva Convention, Article 4.A. See also ASIL Insight, Status of Detainees in International Armed Conflict, and Their Protection in the Course of Criminal Proceedings (Jan. 2002).
[8] Vienna Convention on the Law of Treaties, Art. 27.
[9] Commentary to IV Geneva Convention, at 599. As indicated above, the deportation or transfer would be unlawful under international law if it violates the Convention, whether or not it is lawful under the domestic law of Iraq.
The draft legal opinion of the Justice Department's Office of Legal