         “Protected Person” Status in Occupied Iraq Under the
                      Fourth Geneva Convention
The Geneva Convention Relative to the Protection of Civilian Persons in Time of War (IV) governs the
  United States occupation of Iraq.
The following persons, if captured in occupied Iraq, are not “protected persons” within the meaning of
  article 4 of the Fourth Geneva Convention: U.S. nationals, nationals of a State not bound by the
  Convention, nationals of a co-belligerent State, and operatives of the al Qaeda terrorist organization
  who are not Iraqi nationals or permanent residents of Iraq.

                                                                                                   March 18, 2004

              MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

I. The Scope of Coverage of the Fourth Geneva Convention ................................ 36 
     A. Armed Conflict With Iraq ......................................................................... 36 
     B. Armed Conflict With al Qaeda .................................................................. 38 
II. “Protected Persons” in Occupied Territory....................................................... 40 
     A. Geographical Limitation............................................................................ 41 
     B. Citizens of the Occupying Power .............................................................. 42 
     C. Nationals of a Non-Signatory State ........................................................... 43 
     D. Nationals of a Co-Belligerent State ........................................................... 43 
     E. Nationals of a Neutral State in the Territory of a Belligerent State ........... 45 
     F. Persons Protected by Another Geneva Convention ................................... 47 
     G. Unlawful Combatants ................................................................................ 48 
III. Al Qaeda Operatives in Occupied Iraq ............................................................ 50 
     A. The Interpretive Problem........................................................................... 50 
     B. The Benefits-Burdens Principle of the Fourth Geneva Convention .......... 53 
     C. The Focus of the Fourth Geneva Convention on Protecting Citizens
        and Permanent Residents........................................................................... 57 
     D. Iraqi al Qaeda Captured in Occupied Iraq ................................................. 60 
IV. Conclusion ...................................................................................................... 61 

   The Geneva Convention Relative to the Protection of Civilian Persons in Time
of War (“GC4”) provides “protected persons” with certain protections if they “find
themselves” in occupied territory or in the home territory of a party to an armed
conflict. Id. art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. You have
sought guidance on whether various categories of persons captured by U.S. forces
in occupied Iraq—and, in particular, al Qaeda operatives—have “protected
person” status under GC4.
   Part I of our opinion discusses the threshold issue of when GC4 “applies” to an
armed conflict or occupation and concludes that GC4 governs the United States
occupation of Iraq. Part II addresses GC4’s general criteria for determining



                                                          35
                     Opinions of the Office of Legal Counsel in Volume 28


“protected person” status, as well as the categories of persons that GC4 clearly
excludes from its definition of “protected persons.” Part III addresses the status of
al Qaeda operatives in occupied Iraq. It concludes that al Qaeda operatives
captured in occupied Iraq who are neither citizens nor permanent residents of Iraq
are not entitled to “protected person” status.*

            I. The Scope of Coverage of the Fourth Geneva Convention

    GC4 does not apply to every conceivable armed conflict. Article 2 of GC4—an
article that is worded identically to the corresponding provisions in each of the
other three Geneva Conventions—contemplates only three circumstances in which
the Geneva Conventions “apply”: (a) in “all cases of declared war or of any other
armed conflict which may arise between two or more of the High Contracting
Parties,” id. art. 2(1); (b) in “cases of partial or total occupation of the territory of a
High Contracting Party,” id. art. 2(2); or (c) when a non-signatory “Power[] in
conflict” “accepts and applies the provisions [of GC4],” id. art. 2(3).
    The United States is currently involved in two armed conflicts that are relevant
to our analysis: the armed conflict with and occupation of Iraq, and the armed
conflict with al Qaeda. In this Part we analyze how article 2 applies to each
conflict considered independently. This analysis is not conclusive as to how GC4
applies when the two conflicts become intertwined, as they may when al Qaeda
operatives carry on their armed conflict against the United States in occupied Iraq.
This latter issue is addressed in Part III, infra.

                                A. Armed Conflict With Iraq

   As this Office has previously explained, the armed conflict with Iraq began in
January 1991 and continued beyond March 19, 2003, the date on which President
Bush ordered United States military forces to invade Iraq in response to Iraq’s
“material breach” of an earlier ceasefire agreement accepted by Iraq on April 6,
1991. See Exec. Order No. 13290, 68 Fed. Reg. 14,307 (Mar. 20, 2003) (determin-
ing that the United States and Iraq are “engaged in armed hostilities”); Memoran-
dum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II,
General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant
Attorney General, Office of Legal Counsel, Re: The President’s Authority to
Provide Military Equipment and Training to Allied Forces and Resistance Forces
in Foreign Countries at 2 (May 6, 2003) (determining that a state of armed conflict
has existed between the United States and Iraq since January 1991).

    *
      Editor’s Note: After this opinion was issued, the Supreme Court held in Hamdan v. Rumsfeld, 548
U.S. 557, 629–31 (2006), that common article 3 of the Geneva Conventions is applicable to the United
States’ armed conflict with al Qaeda. See infra notes 5 & 20. We also note that the published version of
this opinion omits a lengthy appendix (and a footnote referring to it) setting forth provisions of the
Geneva Convention referred to in the opinion.




                                                  36
     “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


    In the spring of 2003, the United States and its allies defeated the Iraqi forces.
GC4 does not itself provide criteria for determining when the occupation of Iraq
began. The rule under customary international law is that the United States is an
occupying power over any Iraqi territory that is “actually . . . under the authority”
of the United States. See Hans-Peter Gasser, Protection of the Civilian Population,
in The Handbook of Humanitarian Law in Armed Conflicts 240–41, 243 (Dieter
Fleck ed., 1999); Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-
14/2-T, Trial Judgment ¶¶ 338–39 (Feb. 26, 2001); see also Regulations Respect-
ing the Laws and Customs of War on Land (“Hague Regulations”) art. 42(1), Oct.
18, 1907, 36 Stat. 2277, 1 Bevans 631 (annexed to Convention (IV) Respecting the
Laws and Customs of War on Land) (same).1 Applying this standard, the United
States became an occupying power no later than April 16, 2003, the date on which
General Tommy Franks announced the creation of the “Coalition Provisional
Authority to exercise powers of government temporarily, and as necessary,
especially to provide security, to allow the delivery of humanitarian aid and to
eliminate weapons of mass destruction.” See Tommy R. Franks, Freedom Message
to the Iraqi People (Apr. 16, 2003).2
    Both the United States and Iraq have ratified GC4.3 GC4 governs the armed
conflict between the United States and Iraq because the conflict is one between
“High Contracting Parties” under article 2(1). It also governs the U.S. occupation
of Iraq, because the United States has occupied “the territory of a High Contract-
ing Party” under article 2(2).4 Cf. S.C. Res. 1483, ¶ 5, U.N. Doc. S/RES/1483


    1
      The Hague Regulations do not apply to the United States’ conflict with and occupation of Iraq as
a matter of treaty law because Iraq is not a party to 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 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, Department of Defense, from John C. Yoo,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Authority of the President Under
Domestic and International Law To Make Fundamental Institutional Changes to the Government of
Iraq at 10 (Apr. 14, 2003) (stating that “the Hague Regulations do not expressly govern the U.S.
conflict with Iraq”). But as the citations in the text make clear, article 42(1) of the Hague Regulations,
which provides that occupation begins “when [territory] is actually placed under the authority of the
hostile army,” reflects customary international law.
    2
      It is possible, either at present or in the future, that some areas in Iraq might not be sufficiently
under the authority of the United States to satisfy this definition of “occupation.” We have not been
asked to address the geographic scope of the United States’ “occupation” in this opinion, and our
analysis applies only to the United States’ conduct in those areas of Iraq that are “actually . . . under the
authority” of the United States.
    3
      Iraq acceded to the Geneva Conventions on February 14, 1956, without reservations. See 2 Peter
H. Rohn, World Treaty Index 553, 555, 557, 558 (2d ed. 1983).
    4
      Some commentators have argued that article 2(2) refers only to occupations that (in the language
of article 2(2)) “meet[] with no armed resistance.” See, e.g., The Geneva Conventions of 12 August
1949, Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of
War 21 (Jean S. Pictet ed., International Committee of the Red Cross 1958) (“ICRC Commentary on
GC4”) (arguing that article 2(2) refers only to occupations that have occurred “without a declaration of




                                                     37
                       Opinions of the Office of Legal Counsel in Volume 28


(May 22, 2003) (calling upon “all concerned [in Iraq] to comply fully with their
obligations under international law including in particular the Geneva Conventions
of 1949 and the Hague Regulations of 1907”).

                               B. Armed Conflict With al Qaeda

    The United States is also engaged in an armed conflict with al Qaeda. See
President’s Military Order of November 13, 2001, § 1(a), 66 Fed. Reg. 57,833
(“International terrorists, including members of al Qaida, have carried out attacks
on United States diplomatic and military personnel and facilities abroad and on
citizens and property within the United States on a scale that has created a state of
armed conflict that requires the use of the United States Armed Forces.”);
Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224,
224 (2001) (authorizing the President “to use all necessary and appropriate force
against those nations, organizations, or persons he determines planned, authorized,
committed, or 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, organizations or
persons”); Legality of the Use of Military Commissions to Try Terrorists, 25 Op.
O.L.C. 238, 260–61 (2001) (concluding that the President may properly determine
that an “armed conflict” exists between the United States and al Qaeda.).
    As we explain below, the drafters of the Geneva Conventions did not contemplate
the possibility of an armed conflict between a State and an international non-State
terrorist organization like al Qaeda. It is thus no surprise that, unlike the armed
conflict with Iraq, the armed conflict with al Qaeda does not satisfy any of the article
2 prerequisites for the applicability of GC4. The President has previously determined
that the conflict with al Qaeda does not satisfy article 2 of the Geneva Convention
Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,
T.I.A.S. No. 3364 (“GPW”) because “Al-Qaida is not a state party to the Geneva
Convention; it is a foreign terrorist group.” Office of the Press Secretary, The White
House, Fact Sheet: Status of Detainees at Guantanamo (Feb. 7, 2002), available at
http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html (last visited
on Mar. 17, 2004). This determination under article 2 of GPW applies fully to the
identically worded article 2 in GC4. Nonetheless, it is useful to review why the


war and without hostilities”); Adam Roberts, What is a Military Occupation?, 55 Brit. Y.B. Int’l L.
249, 253 (1984) (agreeing with ICRC). On this view, article 2(1) rather than article 2(2) would trigger
the application of GC4 to occupations, like the one in Iraq, that grow out of an armed conflict, even
though article 2(1) does not expressly refer to occupations following hostilities. See ICRC Commentary
on GC4, supra, at 21 (arguing that article 2(1) applies to “cases in which territory is occupied during
hostilities”); Roberts, supra, at 253 (agreeing). We need not decide whether this argument is valid. If it
is, then the occupation of Iraq satisfies article 2(1) because it arose out of an armed conflict between
contracting parties. If it is not, then the occupation of Iraq satisfies article 2(2) because, as stated in the
text, it is an “occupation of the territory” of a contracting party.




                                                     38
     “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


armed conflict with al Qaeda does not satisfy article 2 and thus does not trigger the
applicability of GC4.
    The U.S.-al Qaeda armed conflict is not one “between two or more of the High
Contracting Parties” within the meaning of article 2(1).5 Al Qaeda has not signed
or ratified GC4. Nor could it. Al Qaeda is not a State. Rather, it is a terrorist
organization composed of members from many nations, with ongoing military
operations in many nations. As a non-State entity, it cannot be a “High Contracting
Party” to the Convention. See Bybee Memorandum, supra note 5, at 9. In addition,
the U.S.-al Qaeda armed conflict has not resulted in the “occupation of the
territory of a High Contracting Party” within the meaning of article 2(2). As a non-
State actor, al Qaeda lacks any territory that could possibly be occupied. Finally, al
Qaeda is not a “Power[] in conflict” that can “accept[] and appl[y]” GC4 within
the meaning of article 2(3). See, e.g., G.I.A.D. Draper, The Red Cross Conventions
16 (1958) (arguing that “in the context of Article 2, para. 3, ‘Powers’ means States
capable then and there of becoming Contracting Parties to these Conventions
either by ratification or by accession”); 2B Final Record of the Diplomatic
Conference of Geneva of 1949, at 108 (explaining that article 2(3) would impose
an “obligation to recognize that the Convention be applied to the non-Contracting
adverse State, in so far as the latter accepted and applied the provisions thereof”)
(emphasis added) (“Final Record”); ICRC Commentary on GC4, supra note 4, at
23 (using “non-Contracting State” interchangeably with “non-Contracting Power”
and “non-Contracting Party”). And in any event, far from embracing GC4 or any
other provision of the law of armed conflict, al Qaeda has consistently acted in
flagrant defiance of the law of armed conflict.6
    In sum, applying article 2 to the two conflicts, considered independently, we
conclude that GC4 applies to the United States’ armed conflict with and occupa-
tion of Iraq but does not apply to its armed conflict with al Qaeda.




     5
       Nor does the United States’ conflict with al Qaeda implicate common article 3 of the Geneva
Conventions, which governs “armed conflict[s] not of an international character occurring in the
territory of one of the High Contracting Parties.” As we have previously explained, common article 3
applies only to purely internal armed conflicts. See Memorandum for Alberto R. Gonzales, Counsel to
the President, and William J. Haynes II, General Counsel, Department of Defense, from Jay S. Bybee,
Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to al Qaeda
and Taliban Detainees at 10 (Jan. 22, 2002) (“Bybee Memorandum”). See also infra note 20.
     6
       For example, on September 11, 2001, nineteen al Qaeda operatives wearing civilian clothes hijacked
commercial airliners and used them as weapons to target and kill thousands of U.S. civilians. More
generally, Osama bin Laden has declared a jihad against the U.S. government that instructed his followers
to target American civilians as well as military personnel, without regard for international law. See World
Islamic Front Statement, Jihad Against Jews and Crusaders (Feb. 23, 1998), available at http://www.fas.
org/irp/world/para/docs/980223-fatwa.htm (last visited on Feb. 26, 2004).




                                                    39
                      Opinions of the Office of Legal Counsel in Volume 28


                     II. “Protected Persons” in Occupied Territory

    Once GC4 is deemed to “apply” to the armed conflict with and occupation of
Iraq under article 2, article 4 of GC4 defines a class of “[p]ersons protected by the
Convention.” “Protected person” status carries with it various protections set forth
in part III of GC4.7 In occupied territory, these protections relate to, among other
things, detention, interrogation, trial, punishment, and deportation. See, e.g., GC4
art. 76 (“Protected persons accused of offences shall be detained in the occupied
country, and if convicted they shall serve their sentences therein.”); id. art. 31 (“No
physical or moral coercion shall be exercised against protected persons, in
particular to obtain information from them or from third parties.”); id. art. 33 (“No
protected person may be punished for an offence he or she has not personally
committed. Collective penalties and likewise all measures of intimidation or of
terrorism are prohibited.”); id. art. 49 (“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 prohibit-
ed, regardless of motive.”). “Protected person” status under GC4 is not related to,
and should not be confused with, “prisoner of war” (“POW”) status under GPW.
Most notably, a “protected person” under GC4 who commits an act of hostility
against opposing forces does not receive the “belligerent’s privilege” accorded to
POWs who commit hostile acts against enemy forces before their capture.
“Protected persons” can thus be tried, convicted, and (if appropriate) executed for
such acts.
    GC4’s general definition of “protected persons” is set forth in article 4(1):

        Persons protected by the Convention are those who, at a given mo-
        ment and in any manner whatsoever, find themselves, in case of a
        conflict or occupation, in the hands of a Party to the conflict or Oc-
        cupying Power of which they are not nationals.

The broad terms used in this definition suggest that persons located in the territory
of occupied Iraq are “in the hands of” an occupying power and qualify for


     7
       Individuals who are ineligible for “protected person” status under GC4 may still receive the
protections under part II of GC4 that are not contingent on one’s status as a “protected person.” See id.
art. 4(3) (noting that the “provisions of Part II [of GC4] are . . . wider in application, as defined in
Article 13”). Specifically, part II, which includes articles 13–26, “covers the whole of the populations
of the countries in conflict, without any adverse distinction based . . . on race, nationality, religion or
political opinion.” Id. art. 13. The protections in part II are primarily designed to protect persons from
the adverse effects of hostilities, even in occupied territory. Among other things, part II concerns the
establishment in occupied territory of hospitals and safety zones to shelter the wounded, the sick,
children, young mothers, and the aged, id. arts. 14–15; requires belligerent parties to facilitate recovery
of those killed or wounded, id. arts. 16–17; requires belligerent parties to protect civilian hospitals and
related items and personnel, id. arts. 18–22; and confers some limited rights of communication upon the
population of the occupied country, id. arts. 25–26.




                                                    40
     “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


“protected person” status so long as they “find themselves” there. See ICRC
Commentary on GC4, supra note 4, at 47 (“The expression ‘in the hands of’ is
used in an extremely general sense. . . . The mere fact of being in the territory of a
Party to the conflict or in occupied territory implies that one is in the power or
‘hands’ of the Occupying Power.”). GC4 then establishes various exceptions and
qualifications to this definition of “protected person” based on geography,
nationality, or protection by another Geneva Convention. We consider these
exceptions and qualifications below.

                                 A. Geographical Limitation

   To receive the protections provided for “protected persons,” one must be locat-
ed in either (1) “occupied territory,” or (2) the “territory of a party to the conflict.”
This limitation does not emerge from article 4 itself, but rather from other
provisions in GC4. Most notably, part III of GC4, which governs the “Status and
Treatment of Protected Persons,” id. (title) (emphasis added), confers protections
only on “Aliens” who find themselves “in the Territory of a Party to the Conflict,”
id. pt. III, sec. II (title) (emphasis added), and persons who find themselves in
“Occupied Territor[y],” id. pt. III, sec. III (title). See also id. pt. III, sec. I (title)
(referring to “Provisions Common to the Territories of the Parties to the Conflict
and to Occupied Territories”) (emphasis added); id. pt. III, sec. IV (title) (“Regula-
tions for the Treatment of Internees”); id. art. 79 (specifying that the “Internees”
governed by part III, section IV consist of “protected persons” that have been
interned pursuant to the provisions of articles 41, 42, or 43 (in the territory of a
party to the conflict) or the provisions of articles 68 and 78 (in occupied territory)).
Article 5 tends to confirm this territorial nexus. In limiting the protections
available to otherwise “protected persons” engaged in activities hostile to the
security of the State, article 5 speaks only about persons detained “in the territory
of a Party to the conflict” or in “occupied territory.” Id. art. 5(1), (2).8
   The meaning of the phrase “territory of a Party to the conflict,” considered in
isolation, is not self-evident. At first glance, one might think that the phrase
includes occupied territory, because the occupied power (to whom the territory
belongs) is a party to the conflict. But in the context of the entire Convention, the
phrase clearly refers to the home territory of the party to the conflict in whose
hands the “protected person” finds himself. This is evident from several provisions
in GC4. Part III of GC4 sets forth the requirements for the “treatment of protected

    8
      Commentators agree that the protections accorded to “protected persons” exist only in the territory
of a party to the conflict or in occupied territory. See ICRC Commentary on GC4, supra note 4, at 45–
46; Richard R. Baxter, So-Called “Unprivileged Belligerency”: Spies, Guerrillas, and Saboteurs, 28
Brit. Y.B. Int’l L. 323, 328 (1951); Raymund T. Yingling & Robert W. Ginnane, The Geneva
Conventions of 1949, 46 Am. J. Int’l L. 393, 411 (1952); John Embry Parkerson, Jr., United States
Compliance with Humanitarian Law Respecting Civilians During Operation Just Cause, 133 Mil. L.
Rev. 31, 74 (1991).




                                                   41
                        Opinions of the Office of Legal Counsel in Volume 28


persons,” and its provisions clearly demonstrate that the “territory of a party to the
conflict” does not include “occupied territor[y].” First, part III of GC4 separates
provisions governing the “Territory of a Party to the Conflict” from those govern-
ing “Occupied Territor[y].” See id. pt. III, sec. II (title) (“Aliens in the Territory of
a Party to the Conflict”); id. pt. III, sec. III (title) (“Occupied Territor[y]”). See
also id. pt. III, sec. I (title) (referring to “Provisions Common to the Territories of
the Parties to the Conflict and to Occupied Territories”) (emphasis added). In
addition, the rules that govern the “territory of a party to the conflict” are very
difficult to reconcile with the obligations imposed on an occupying power by
section III. Article 49(1), which is included in part III, section III’s rules for
“Occupied Territories,” generally prohibits “forcible transfers, as well as deporta-
tions” of “protected persons.”9 The provisions of part III, section II, by contrast,
envision considerably more latitude in removing “protected persons” found in the
“territory of a party to the conflict.” See, e.g., id. art. 45(3) (“Protected persons
may be transferred by the Detaining Power only to a Power which is a party to the
present Convention and after the Detaining Power has satisfied itself of the
willingness and ability of such transferee Power to apply the present Convention.”)
(emphasis added); id. art. 45(5) (“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.”). So any uncertainty about the phrase “territory of a party
to the conflict” is eliminated by consideration of the clear distinctions drawn in the
first three sections of part III.10
    In sum, the protections afforded to “protected persons” by GC4 apply only to
persons who “find themselves” in occupied territory or in the home territory of a
party to the conflict.

                               B. Citizens of the Occupying Power

   The general definition of “protected person” in article 4(1) by its terms does not
extend to persons who “find themselves . . . in the hands of” an occupying power
that is the State of their nationality. In the context of U.S. obligations in occupied
Iraq, this means that U.S. citizens in the hands of the U.S. government are not


   9
       Article 49(2) provides a limited exception to this rule:
          Nevertheless, the Occupying Power may undertake total or partial evacuation of a giv-
          en 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.
   10
      This point is so obvious that commentators assume it without discussion. See, e.g., ICRC Com-
mentary on GC4, supra note 4, at 61–62; Yingling & Ginnane, supra note 8, at 417; Parkerson, supra
note 8, at 73–74.




                                                      42
    “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


“protected persons.” Despite this exception to “protected person” status, article
70(2) of GC4 provides:

       Nationals of the occupying Power who, before the outbreak of hostil-
       ities, have sought refuge in the territory of the occupied State, shall
       not be arrested, prosecuted, convicted or deported from the occupied
       territory, except for offences committed after the outbreak of hostili-
       ties, or for offences under common law committed before the out-
       break of hostilities which, according to the law of the occupied State,
       would have justified extradition in time of peace.

U.S. nationals captured in Iraq who satisfy the requirements of article 70 receive
its limited protections.

                      C. Nationals of a Non-Signatory State

    Article 4(2) provides that “[n]ationals of a State which is not bound by” GC4
are not “protected persons.” Almost every State in the world has ratified GC4. At
present, we are aware of only two States that have not: the Marshall Islands and
Nauru. See Office of the Legal Adviser, Dep’t of State, Treaties in Force 456–57
(2003) (listing States-Parties to the Geneva Conventions). In occupied Iraq,
citizens of these States who “find themselves . . . in the hands of” the United States
will not be “protected persons,” unless and until their State of citizenship agrees to
be bound by GC4.

                      D. Nationals of a Co-Belligerent State

   Article 4(2) further excludes from “protected person” status “nationals of a co-
belligerent State” that has “normal diplomatic representation in the State in whose
hands they are.” GC4 does not define the term “co-belligerent.” At the time the
Convention was being drafted, the term “belligerent” was commonly used to
“designate[] either of two nations which are actually in a state of war with each
other, as well as their allies actively co-operating, as distinguished from a nation
which takes no part in the war and maintains a strict indifference as between the
contending parties, called a ‘neutral.’” Black’s Law Dictionary 197 (4th ed. 1951);
see also 1 Oxford English Dictionary 787 (1933) (defining “belligerent” as “[a]
nation, party, or person waging regular war (recognized by the law of nations).”).
The addition of the prefix “co-” distinguishes, in broad terms, allies from enemies.
See ICRC Commentary on GC4, supra note 4, at 49 (stating that “co-bellige-
rent[s]” and “allies” are synonyms); Michael Bothe et al., New Rules for Victims of
Armed Conflicts 440 (1982) (characterizing article 4’s reference to “co-
belligerents” as a reference to “allies”). This usage is consistent with a prominent
episode during World War II. In 1943, when Italy surrendered to the allies and
declared war on Germany, it was formally accepted as “a co-belligerent [with the



                                         43
                      Opinions of the Office of Legal Counsel in Volume 28


United States, Great Britain, and the Soviet 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).
    The status of belligerency is not always easy to establish, however, because
GC4 does not require that a state of armed conflict be formally “recognized” by
the States involved. See GC4 art. 2(1). Because belligerent States are defined in
contrast with neutral ones, neutrality law may provide guidance in determining
when a State has become a co-belligerent. To remain neutral, a State must not
actively participate in hostilities and (with exceptions not relevant here) must not
permit its territory to be used by belligerents as a sanctuary or base of operations.
See, e.g., Michael Bothe, The Law of Neutrality, in The Handbook of Humanitari-
an Law in Armed Conflicts ¶ 1109, at 495 (Dieter Fleck ed., 1999) (a neutral State
“must prevent any attempt by a party to the conflict to use its territory for military
operations”); id. ¶ 1111, at 497 (“If the 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.); Yoram Dinstein, War, Aggression and Self-Defence 23-
28 (3d ed. 2001) (similar). Prior U.S. practice is consistent with the conclusion that
a country becomes a co-belligerent when it permits U.S. armed forces to use its
territory for purposes of conducting military operations.11
    For these reasons, the exception to “protected person” status for nationals of
“co-belligerent[s]” in article 4 includes, at a minimum, nationals of countries that
send military forces to participate in Coalition combat operations or that allow
their territory to be used as a base for such operations. Applying this definition to
Iraq, we conclude, based on information currently available to us, that the United
Kingdom, Australia, Spain, Poland, Kuwait, and Qatar are “co-belligerent[s]”
within the meaning of article 4.12 This list is not meant to exclude other States that


    11
       In 1970, President Nixon ordered U.S. forces in Vietnam to cross the border into Cambodia to
attack bases that—despite Cambodia’s professions of neutrality—were being used by North Vietnam-
ese and Viet Cong forces. The State Department Legal Adviser explained that the United States affirm-
atively decided not to secure the “advance, express request of the Government of Cambodia for our
military actions on Cambodian territory,” because that level of cooperation would have “compromised
the neutrality of the Cambodian Government” and the United States “did not wish to see Cambodia
become a co-belligerent along with South Viet-Nam and the United States.” Military Operations in
Cambodia, 64 Am. J. Int’l L. 932, 935 (1970). President Nixon himself made the same point in
connection with the simultaneous decision to provide equipment for the Cambodian Army. See Address
to the Nation on the Situation in Southeast Asia, Pub. Papers of Pres. Richard Nixon 405, 407 (Apr. 30,
1970) (“[T]he aid we will provide will be limited for the purpose of enabling Cambodia to defend its
neutrality and not for the purpose of making it an active belligerent on one side or the other.”).
    12
       There should be no dispute that each of these States “has normal diplomatic representation” in the
United States. GC4 art. 4(2). Each of them maintains an embassy in Washington, D.C., and (although
this is not required by the text of article 4) the United States also maintains an embassy in each of their
capitals.




                                                    44
    “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


may be in a similar position; it merely reflects the information currently available
to this Office.
    As for States that did not participate in actual combat operations in Iraq but that
subsequently play some role in the occupation of Iraq, we have not located
authority or analysis regarding the level of participation in an occupation that
suffices to trigger “co-belligerent” status under GC4. We believe, however, that
mere participation in any aspect of the occupation itself will not always suffice to
constitute co-belligerency, especially when a State’s specific contribution has no
direct nexus with belligerent or hostile activities. For instance, if a State merely
assists the Coalition in fulfilling the requirement under article 50(1) of GC4 to
“facilitate the proper working of all institutions devoted to the care and education
of children,” it would not be a belligerent. But a State that sends military forces to
assist in rounding up Baathist remnants and imposing general security in Iraq, and
especially one that participates in hostile activities in Iraq, will engage in conduct
properly characterized as belligerent. In sum, the determination whether a State is
a “co-belligerent” by virtue of its participation in the occupation of Iraq turns on
whether the participation is closely related to “hostilities.”

     E. Nationals of a Neutral State in the Territory of a Belligerent State

   Article 4(2) also excludes from “protected person[]” status nationals “of a
neutral State who find themselves in the territory of a belligerent State,” as long as
the neutral State has “normal diplomatic representation in the State in whose hands
they are.” The phrase “territory of a belligerent State” might appear at first to be
capable of bearing two different readings. First, it might refer to the territory of
any State that participates in an armed conflict covered by GC4. As applied to the
armed conflict with Iraq, this interpretation would mean that citizens of neutral
States in occupied Iraq would not be “protected persons” so long as the neutral
States had “normal diplomatic representation” in the United States. Second,
“territory of a belligerent State” might refer to the home territory of the party to the
conflict in whose hands the citizen of the neutral State finds himself. As applied to
the armed conflict with Iraq, this interpretation would deny “protected person[]”
status to citizens of neutral States who find themselves in the territory of the
United States, but not to those who find themselves in occupied Iraq.
   We conclude that the second interpretation is correct. The phrase “[n]ationals of
a neutral State who find themselves in the territory of a belligerent State” must be
understood in light of the Convention’s overarching structure. As noted earlier, the
specific protections that the Convention confers on “protected persons” apply in
only two places: in occupied territory, or in the home territory of a party to the
conflict. See supra Part II.A. If “territory of a belligerent State” were construed to
include occupied territory as well as the home territory of a party to the conflict,
nationals of neutral States would not enjoy GC4’s protections anywhere in the
world. Interpreting “territory of a belligerent State” to include occupied territory



                                          45
                   Opinions of the Office of Legal Counsel in Volume 28


would thus render this phrase effectively meaningless. Such a construction is
disfavored. See, e.g., Factor v. Laubenheimer, 290 U.S. 276, 303–04 (1933)
(treaties should not be interpreted to render phrases “meaningless or inoperative”).
    It is true that article 4 uses the phrase “territory of a belligerent State,” while the
other provisions of GC4 employ the term “territory of a party to the conflict” when
referring to home territory. Where drafters use different terms in the same treaty,
they are ordinarily presumed “to mean something different.” See Air France v.
Saks, 470 U.S. 392, 397–98 (1985). But in this context, we do not think the
variation in 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
synonyms. Every “party to the conflict” is a “belligerent State,” and every
“belligerent State” is a “party to the conflict.” More importantly, if we were to
read the phrase “territory of a belligerent State” to include occupied territory, the
qualifying phrase would be entirely superfluous, and indeed would be contrary to
the treaty’s apparent intention to narrow the exclusion from “protected person”
status to a subset of citizens of neutral States.
    The negotiating record confirms this meaning of “territory of a belligerent
State.” Cf. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989) (stating that a
treaty’s negotiating record “may of course be consulted to elucidate a text that is
ambiguous”). Two aspects of this record make clear that the phrase “territory of a
belligerent State” in article 4(2) means “the home territory of a party to the
conflict.”
    First, the delegates treated the phrases “territory of a belligerent State” and
“territory of a Party to the conflict” as synonyms. A proposed draft of article 3A
(which later became article 5) began: “Where in the territory of a belligerent, the
Power concerned is satisfied that an individual protected person is definitely
suspected of or engaged in activities hostile to the security of the State . . . .”
3 Final Record at 100. This text was later changed to replace “territory of a
belligerent” with “territory of a Party to the conflict.” Although draft article 3A
was hotly debated throughout the Convention, none of the delegates reacted in any
manner suggesting that the change in language altered the scope of the original
article 3A.
    Second, and more broadly, the drafting history reveals that the delegates fully
understood that nationals of neutral States would have “protected person” status in
occupied territory. The Rapporteur who introduced the draft of article 3 (which
later became article 4), Col. Du Pasquier (Switzerland), said:

       A particularly delicate question was that of the position of the na-
       tionals of neutral States. The Drafting Committee had made a dis-
       tinction between the position of neutrals in the home territory of bel-
       ligerents and that of neutrals in occupied territory. In the former case,
       neutrals were protected by normal diplomatic representation; in the
       latter case, on the other hand, the diplomatic representatives con-



                                            46
     “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


        cerned were only accredited to the Government of the occupied
        States, whereas authority rested with the Occupying Power. It fol-
        lowed that all neutrals in occupied territory must enjoy protection
        under the Convention, while neutrals in the home territory of a bel-
        ligerent only required such protection if the State whose nationals
        they were had no normal diplomatic representation in the territory in
        question.

2A Final Record at 793. Not a single delegate questioned or challenged Du
Pasquier’s interpretation of article 4’s text, or his rationale as to why nationals of
neutral States should receive “protected person” status in occupied territory.13
   For these reasons, we conclude that nationals of neutral States are not per se
excluded from “protected person” status in occupied Iraq.14

                 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 Armed Forces in the Field
        of August 12, 1949, or by the Geneva Convention for the Ameliora-
        tion of the Condition of Wounded, Sick and Shipwrecked Members


     13
        A U.S. delegate, Mr. Ginnane, additionally explained that the United States did not want nation-
als of neutral States to be protected in its home territory: “[I]n the United States of America and in
various other countries a large section of the population was composed of aliens who were permanently
settled in its territory. In the United States those persons considered themselves as an integral part of
the country, and in time of war were treated in practically all respects as American citizens. Their
children were brought up as citizens of the United States. Such persons had no need of protection under
the Convention.” 2A Final Record at 794. The Drafting Committee agreed and crafted article 4 to
remove protections from nationals of neutral States only when they find themselves in the home
territory of a party to the conflict. Id.
     14
        Most commentators agree with our interpretation of the phrase “territory of a belligerent State” in
article 4(2). See, e.g., Yingling & Ginnane, supra note 8, at 411 (1952); ICRC Commentary on GC4,
supra note 4, at 46; Joyce A.C. Guttheridge, The Geneva Conventions of 1949, 26 Brit. Y.B. Int’l L.
294, 320 (1949); Morris Greenspan, The Modern Law of Land Warfare 157–58 (1959); 2 Howard S.
Levie, The Code of International Armed Conflict 798 (1986); Vaughn A. Ary, Concluding Hostilities:
Humanitarian Provisions in Cease-Fire Agreements, 148 Mil. L. Rev. 186, 238 (1995); Theodor
Meron, Prisoners of War, Civilians and Diplomats in the Gulf Crisis, 85 Am. J. Int’l. L. 104, 106
(1991); Parkerson, supra note 8, at 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 persons.” See Hans-Peter Gasser, Protection of the Civilian Population, in The Handbook of
Humanitarian Law in Armed Conflicts 241 (Dieter Fleck ed., 1999); Gerhard von Glahn, The
Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 91
(1957); Jordan J. Paust, Judicial Power to Determine the Status and Rights of Persons Detained
Without Trial, 44 Harv. Int’l L.J. 503, 512 n.29 (2003). These commentators provide no analysis in
support of their assertions concerning the meaning of “territory of a belligerent State,” and we thus find
no basis in their statements for questioning the construction outlined above.




                                                    47
                     Opinions of the Office of Legal Counsel in Volume 28


        of Armed Forces at Sea of August 12, 1949, or by the Geneva Con-
        vention relative to the Treatment of Prisoners of War of August 12,
        1949, shall not be considered as protected persons within the mean-
        ing of the present Convention.

This provision excludes persons who enjoy protection under one of the other three
Geneva Conventions from claiming “protected person” status under GC4. Such
persons are excluded because they receive different protections appropriate to their
particular status under other Conventions.

                                   G. Unlawful Combatants

    GC4’s full title—“Geneva Convention Relative to the Protection of Civilian
Persons in Time of War,” (emphasis added)—suggests that “[t]he main object of
the Convention is to protect a strictly defined category of civilians.” ICRC
Commentary on GC4, supra note 4, at 10 (emphasis added). Consistent with this
title, article 4(4) of GC4 expressly excludes lawful combatants who enjoy POW
status from “protected person” status. These factors, combined with the fact that
unlawful combatants generally receive less favorable treatment than lawful
combatants under the Geneva Convention system, see, e.g., Status of Taliban
Forces Under Article 4 of the Third Geneva Convention of 1949, 26 Op. O.L.C. 1
(2002) (concluding that GPW withholds protections from persons who engage in
hostilities but fail to satisfy criteria for lawful combatancy), might lead one to
assume that unlawful combatants are categorically excluded from “protected
person” status under GC4.
    GC4’s text, however, contemplates that persons who “find themselves” in
occupied territory within the meaning of article 4 may engage in at least some
forms of unlawful belligerency without forfeiting all of the benefits of “protected
person” status. Article 5(2), for example, provides that “an individual protected
person” detained in occupied territory “as a spy or saboteur, or as a person under
definite suspicion of activity hostile to the security of the Occupying Power” does
not forfeit all GC4 protections. Rather, such persons forfeit only their “rights of
communication,” and then only when “absolute military security so requires.” Id.
art. 5(2). While the scope of conduct contemplated by the phrase “activity hostile
to the security of the Occupying Power” is not entirely clear,15 spies and saboteurs,
at least, are unlawful combatants. See Ex parte Quirin, 317 U.S. 1, 30–31 (1942).
In like manner, article 68 provides that the occupying power “may impose the
death penalty on a protected person only in cases where the person is guilty of


    15
       Presumably it should be understood to refer to activities similar to espionage and sabotage. See,
e.g., Norfolk & W. Ry. v. Am. Train Dispatchers’ Ass’n, 499 U.S. 117, 129 (1991) (“Under the principle
of ejusdem generis, when a general term follows a specific one, the general term should be understood
as a reference to subjects akin to the one with specific enumeration.”).




                                                  48
     “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


espionage, of serious acts of sabotage against the military installations of the
Occupying Power or of intentional offences which have caused the death of one or
more persons.” GC4 art. 68. This provision appears to preserve the procedural and
substantive trial protections conferred by articles 69–78 of GC4 for at least some
types of unlawful combatants who are otherwise “protected persons” under arti-
cle 4.
   GC4’s negotiating record confirms that at least some forms of unlawful bellig-
erency are not inconsistent with “protected person” status. The original draft of
GC4 (the Stockholm text) did not contain any provision akin to article 5. This
omission prompted many delegations to express concern that a State engaged in an
armed conflict or occupation would be left without “sufficient protection against
spies, saboteurs and traitors,” 2A Final Record at 796 (summary of statement of
Col. Hodgson (Australia)), and that without a provision like article 5, the Conven-
tion “would in certain cases jeopardize the very security of the State,” id. Such
concerns would not have been raised if the original draft had been understood
wholly to exclude these sorts of unlawful belligerents from GC4’s protections. The
Drafting Committee responded to these concerns by proposing a new draft article
3A (which ultimately became article 5). The Rapporteur, Colonel Du Pasquier
(Switzerland), “explained that internal security was one of the main preoccupa-
tions of national leaders in time of war,” and that article 3A had been drafted “in
order to guard against [the] danger” that “the protection given by the Convention
should . . . facilitate the subversive activities of ‘fifth columnists.’” 2A Final
Record at 796. Though some delegations opposed draft article 3A, see 2A Final
Record at 796–97; 2B Final Record at 384, none expressed the view that it was
unnecessary because persons who engaged in any form of unlawful belligerency
were categorically excluded from “protected person” status under GC4.16
   We thus conclude that at least some unlawful belligerents can fall within the
scope of persons who are “protected” under GC4 so long as they “find themselves”
in occupied territory within the meaning of article 4.17


    16
       Similarly, in a discussion of then-article 3 (which became article 4), the United Kingdom’s
delegate stated that the definition of “protected persons” would “cover individuals participating in
hostilities in violation of the laws of war,” and urged that then-article 3 be amended to ensure that
“[c]ivilians who violated [the laws of war] should cease to be entitled to the treatment provided for law-
abiding citizens.” 2A Final Record at 620–21. No delegate disputed the United Kingdom’s interpreta-
tion of then-article 3, but ultimately no amendments were made to article 3 in response to the United
Kingdom’s concerns.
    17
       Numerous commentators conclude that unlawful combatants are not per se excluded from “pro-
tected person” status under GC4. See, e.g., Albert J. Esgain & Col. Waldemar A. Solf, The 1949
Geneva Convention Relative to the Treatment of Prisoners of War: Its Principles, Innovations, and
Deficiencies, 41 N.C. L. Rev. 537, 549 (1962–1963); Baxter, supra note 8, at 328; Frits Kalshoven,
Constraints on the Waging of War 41 (1991); G.I.A.D. Draper, The Status of Combatants and the
Question of Guerilla Warfare, 45 Brit. Y.B. Int’l L. 173, 193 (1971). Some commentators reach this
conclusion by endorsing the view, expressed in the ICRC’s Commentary, that “[e]very person in enemy
hands must have some status under international law: he is either a prisoner of war and, as such,




                                                   49
                      Opinions of the Office of Legal Counsel in Volume 28


                        III. Al Qaeda Operatives in Occupied Iraq

   We now turn to the status of al Qaeda operatives captured in occupied Iraq.18

                                 A. The Interpretive Problem

   To say that at least some unlawful combatants may be “protected persons” in
occupied territory is not to say that all unlawful combatants captured in Iraq—and
in particular al Qaeda terrorist operatives captured there—enjoy this status. GC4
does not expressly address the status of operatives of an international terrorist
organization. Whether such terrorists possess “protected person” status therefore
depends on whether they fall within the scope of article 4(1), which confines such
status to “those who, at a given moment and in any manner whatsoever, find
themselves, in the case of . . . occupation, in the hands of [an] . . . Occupying
Power of which they are not nationals” (emphasis added).
   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, to include within the
“protected persons” described in article 4(1) all persons physically present in
occupied territory. See, e.g., Affo v. Commander Israel Defence Force in the West
Bank, 29 I.L.M. 139, 152 (1990) (concluding that “‘protected persons’ . . . em-


covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of
the medical personnel of the armed forces who is covered by the First Convention. There is no
intermediate status; nobody in enemy hands can be outside the law.” ICRC Commentary on GC4,
supra note 4, at 51 (emphasis in original). See, e.g., Paust, supra note 14, at 511–12 & n.27; Laura A.
Dickinson, Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International
Tribunals, and the Rule of Law, 75 S. Cal. L. Rev. 1407, 1425 & n.92 (2002). But this is clearly not
what the Geneva Conventions provide. Many non-POWs “in enemy hands” will fail to qualify for
rights accorded to “protected persons” under GC4, including (a) persons who are nationals of a State
that is not bound by the Convention, see GC4 art. 4(2); (b) persons who have taken up arms against
their country of citizenship, see GC4 art. 4(1); (c) persons who have taken up arms against a co-
belligerent of their country of citizenship, see GC4 art. 4(2); and (d) persons who were not captured in
either the “territory of a party to the conflict” or in “occupied territory,” see GC4 pt. III, secs. I–III;
supra Part II.A. The commentators who endorse the ICRC Commentary make no effort to reconcile the
Commentary’s aspiration with these undisputable exclusions from GC4’s protections. So while we
recognize that at least some types of unlawful combatants can have “protected person” status under
GC4, we reject the ICRC Commentary’s mischaracterization of article 4.
     18
        In discussing “al Qaeda operatives,” we refer not only to individuals who are formal members of
al Qaeda, but also to those who have associated themselves with that organization and are fighting on
its behalf. Cf. Ex parte Quirin, 317 U.S. 1, 37–38 (1942) (“Citizens who associate themselves with the
military arm of the enemy government, and with its aid, guidance and direction enter this country bent
on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of
war.”). Our analysis would also apply to members or associates of other terrorist organizations that are
sufficiently 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 organizations that are not so
connected to al Qaeda but are separately engaged in global armed conflict against the United States. For
purposes of this opinion, we do not attempt to articulate a precise test for identifying such associates or
organizations.




                                                    50
    “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


braces . . . all persons found in the territory,” including infiltrators who are there
illegally); cf., e.g., Yingling & Ginnane, supra note 8, at 411 (1952) (implicitly
taking this position). Under this interpretation, those who “find themselves” in
occupied territory are simply those who “are” in occupied territory, and al Qaeda
operatives in occupied Iraq would be “protected persons” under GC4 unless they
fall within article 4’s limited nationality exclusions. While “are” may be a possible
reading of “find themselves,” it is not the only, or even a particularly obvious,
reading of that phrase. Had article 4’s drafters intended this meaning, they could
have readily conveyed it with terminology far simpler and clearer than the phrase
“find themselves.”
    Alternatively, the phrase “find themselves” can be read more narrowly to sug-
gest an element of happenstance or coincidence, and to connote a lack of deliber-
ate action relating to the circumstances that leave the persons in question in the
hands of an occupying power. This reading of the phrase is both common and
natural. See, e.g., 4 Oxford English Dictionary 224 (1933) (defining “find” as “to
come upon by chance or in the course of events”); Funk & Wagnalls New
Standard Dictionary of the English Language 923 (1946) (defining “find” as “to
discover or meet with by accident; chance upon; fall in with”). On this narrower
reading, al Qaeda operatives in occupied Iraq do not, as a general matter, “find
themselves” in that country. Such persons are in Iraq as willing 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.
    This reading of article 4 accords with ordinary usage: one would not 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 happen-
stance or coincidence; he is there to carry out the hijacking. By contrast, one
would say that innocent passengers “find themselves” aboard the hijacked flight.
Although their presence on the hijacked plane is in some sense deliberate (presum-
ably they chose to travel on that particular flight), it is accidental or co-incidental
at least in the sense that it results from factors unrelated to the hijacking. This
reading of “find themselves” closely corresponds to the position recognized by one
Justice of the Israeli Supreme Court in Affo, 29 I.L.M. at 180 (Bach, J., concurring
in judgment) (acknowledging that those who “find themselves” in occupied
territory could be limited to those who have “fallen into a situation where against
their will they find themselves in the hands of one of the parties to the conflict or
in the hands of the occupying power; whereas people who subsequently penetrate
into that territory with malicious intent are not included in that definition”). It has
also been suggested by at least one commentator. See Brian Farrell, Israeli
Demolition of Palestinian Houses as a Punitive Measure: Application of Interna-
tional Law to Regulation 119, 28 Brook. J. Int’l L. 871, 922 n.384 (2003) (noting




                                          51
                      Opinions of the Office of Legal Counsel in Volume 28


the possibility that certain persons in occupied territory do not “‘find themselves’
in the hands of the occupying power as contemplated by Article 4”).19
    Although article 4 can be read to exclude al Qaeda operatives from the class of
“protected persons,” we must acknowledge that article 4 could also be read to
include such persons. This ambiguity, and GC4’s more general failure to specifi-
cally address the status of international terrorist organization operatives in
occupied territory, are not surprising. The Geneva Conventions were drafted at a
time when conflicts between States were the only transnational armed conflicts
that could have been imagined. The 1949 Diplomatic Conference of Geneva
occurred in the aftermath of World War II, when States were the sole entities with
the organization, discipline, and resources capable of engaging in transnational
wars. GC4’s State-centric orientation is clearly reflected in article 2, which limits
the applicability of the Geneva Conventions to armed conflicts between States, and
occupations of the territory of States, that have either ratified, or else accepted and
applied, the Conventions. See supra Part I.B.20
    Because article 4’s application in this context is ambiguous, we turn to other
sources for interpretive guidance. See Eastern Airlines, Inc. v. Floyd, 499 U.S.
530, 534–35 (1991) (providing that although treaty interpretation “begin[s] with
the text of the treaty . . . , [o]ther general rules of construction may be brought to
bear on difficult or ambiguous passages”) (internal quotation marks and citations
omitted); Vienna Convention on the Law of Treaties art. 32, opened for signature


     19
        As we noted, Article 4 extends “protected person” status to all “those who, at a given moment
and in any manner whatsoever, find themselves . . . in the hands of [an] . . . Occupying Power of which
they are not nationals” (emphasis added). The prepositional phrase “at a given moment and in any
manner whatsoever” modifies “find themselves” and therefore has no application or relevance to
persons who do not “find themselves” in the hands of an Occupying Power. Thus, the meaning of “at a
given moment and in any manner whatsoever” does not inform or expand, but instead depends upon
and is limited by, “find themselves.” Accordingly, we do not believe this prepositional phrase provides
meaningful guidance in choosing between the broad and narrow readings of “find themselves.”
     20
        To be sure, common article 3 of GC4 contemplates that a State and non-State actors can engage
in an armed conflict “not of an international character” that occurs “in the territory of one of the High
Contracting Parties.” See Geneva Conventions I–IV, art. 3. But common article 3 confirms that there
was no contemplation of non-State terrorist organizations carrying on a global war. It establishes
minimal protections of humane treatment for persons involved in conflicts purely internal to a State,
such as civil wars and related domestic insurgency movements. See Bybee Memorandum, supra note 5,
at 10. The GC4 drafters agreed to common article 3 after a lengthy debate that focused on concerns
about the implications of conferring even minimal legal protections on non-State groups in a purely
domestic context. See, e.g., 2B Final Record at 325 (Soviet delegate Mr. Morosov) (“No other issue has
given rise to such a long discussion and to such a detailed and exhaustive study as the question of the
extension of the Convention to war victims of conflicts not of an international character.”). The creation
of such protections—which fall far short of those conferred on “protected persons” by article 4—
“mark[ed] a new step forward,” and represented “an almost unhoped-for extension” of international law
at the time. See ICRC Commentary on GC4, supra note 4, at 26. This limited extension, after elaborate
discussion, of minimal protections for non-State actors in purely internal armed conflict further
confirms that the drafters of GC4 did not contemplate the possibility of full “protected person” status
for members of a non-State actor terrorist organization engaged in transnational armed conflict.




                                                   52
     “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


May 23, 1969, 1155 U.N.T.S. 331, 340 (“Recourse may be had to supplementary
means of interpretation . . . to determine the meaning when [textual] interpretation
according to article 31 . . . leaves the meaning ambiguous or obscure . . . .”).21
Resort to extrinsic sources is especially appropriate where, as here, ambiguity
results from changed or unforeseen circumstances. In such instances, “it is our
responsibility to give the specific words of the treaty a meaning consistent with the
shared expectations of the contracting parties.” El Al Israel Airlines, Ltd. v. Tsui
Yuan Tseng, 525 U.S. 155, 167 (1999) (quoting Air France v. Saks, 470 U.S. 392,
399 (1985)) (emphasis added). See also Rocca v. Thompson, 223 U.S. 317, 331–32
(1912) (observing that treaties “[l]ike other contracts . . . are to be read in the light
of the conditions and circumstances existing at the time they were entered into
with a view to effecting the objects and purposes of the States thereby contract-
ing”).

      B. The Benefits-Burdens Principle of the Fourth Geneva Convention

    We first consider article 4’s textual ambiguity in light of the objects and pur-
poses of the Geneva Conventions, including GC4. It is well established, both in
United States and international practice, that interpretations of ambiguous treaty
text should, if possible, accord with such purposes. See Rocca, 223 U.S. at 331–32;
Vienna Convention art. 31.1, 1155 U.N.T.S. at 340 (“A treaty shall be interpreted
in good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose.”) (emphasis
added). One object and purpose of the Geneva Conventions is to exclude from
coverage those who engage in transnational armed conflict, even in occupied
territory, if their representatives have rejected the burdens of the Geneva Conven-
tion system.
    This “benefits-burdens” principle finds several expressions in the text of GC4.
For example, article 2(1) of GC4 limits the application of the Convention to armed
conflicts between High Contracting Parties. Common article 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 a benefits-burdens constraint. It provides that if a “Power[] in
conflict” that is not a signatory to GC4 “accepts and applies” GC4, then any
signatory State involved in the conflict with that power will be “bound by the
Convention” with regard to that “Power.” Article 2(3) further states that if one of
the “Powers in conflict” is a non-party to GC4, the “Powers who are parties thereto


    21
       Although the United States is not a signatory to the Vienna Convention, it has recognized that
articles 31 and 32 of the Vienna Convention reflect international practice. See Bybee Memorandum,
supra note 5, at 23. Courts also frequently rely on articles 31 and 32 to interpret treaties. See, e.g.,
Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1296 n.40 (11th Cir. 1999);
Kreimerman v. Casa Veerkamp S.A. de C.V., 22 F.3d 634, 638 n.9 (5th Cir. 1994).




                                                  53
                 Opinions of the Office of Legal Counsel in Volume 28


shall remain bound by it in their mutual relations.” This provision contemplates
that even when signatories and non-signatories fight together, signatories owe
duties under GC4 only to other signatories, or to those “Powers” that have agreed
to accept and apply the Convention. Common article 2(3) makes clear that, though
the drafters of the Geneva Conventions did not 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 informally, in order to receive their
benefits.
   The benefits-burdens principle also finds expression in article 4(2), which
provides: “Nationals of a State which is not bound by the Convention are not
protected by it.” The ICRC’s official Commentary states that article 4(2)’s
exception to the definition of “protected person” in article 4(1) is a “truism” and an
“unnecessary addition” that follows naturally from article 2(1) even in the absence
of article 4(2). ICRC Commentary on GC4, supra note 4, at 48. Whether or not
this is true, article 4(2) makes this much clear: persons in occupied territory,
including those who commit hostile acts there, are not “protected persons” under
GC4 if the State that represents them has not formally accepted the Convention’s
burdens.
   This principle stands out with clarity against the background of GC4’s other-
wise very broad reach. Recall that GPW limits POW status, and thus the benefits
of GPW, to the lawful combatants of armed forces and related forces of States that
are parties to the conflict and have ratified GPW, and thus that have accepted
obligations regarding the conduct of armed conflict. By contrast, GC4 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
GC4’s expansive application, however, the drafters were careful to exclude from
“protected person” status individuals from States that had not signed the Conven-
tion or otherwise accepted and applied its provisions in the relevant conflict.
   In sum, articles 2 and 4 reflect the Geneva Conventions’ principle that persons
who engage in transnational armed conflicts do not receive the benefits of the
Conventions, in occupied territory or otherwise, if their representatives refuse to
accept their burdens. GC4 usually expresses this benefits-burdens principle in
terms of nationals of States that have ratified the Convention. Specifically, GC4
generally provides that nationals of States that fail to assume the burdens of GC4
do not receive its benefits, even in occupied territory. This formulation reflects the
drafters’ assumptions that States would be the only entities capable of engaging in
a transnational armed conflict, and that denying “protected person” status to
nationals of non-compliant States would adequately ensure that all warring entities
accepted GC4’s burdens before receiving its benefits.
   But the assumption that persons would only be identified with States—because
States are the only entities that take part in transnational conflicts—does not hold
true in the unprecedented context of a global armed conflict in which the armed



                                         54
     “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


forces of a non-State terrorist organization attack a State in territory occupied in
connection with an armed conflict between signatory States. Adherence to article
4’s State-centric presuppositions in this context would violate GC4’s fundamental
principle that warring entities cannot receive the benefits of GC4 if they reject
Geneva Convention duties. Al Qaeda has pointedly declined to accept or apply
GC4 or any other principle of the law of armed conflict. If nationals of a rogue
State that refused to be bound by the Geneva Conventions engaged in unlawful
belligerency on behalf of that rogue State, they would be denied “protected
person” status everywhere in the world, including occupied Iraq. See GC4 art. 4(2)
(“Nationals of a State which is not bound by the Convention are not protected by
it.”). It would run sharply contrary to the object and purpose of GC4 to give al
Qaeda operatives a more elevated status than such individuals. The conferral of
such elevated status would allow a non-State terrorist organization to circumvent
GC4’s benefits-burdens principle by using territory occupied in a war between two
signatory States as the most advantageous place to carry on their conflict against
the occupying power. The sounder approach is to adhere to the benefits-burdens
principle embodied in articles 2 and 4—a principle that induces compliance by
linking the benefits of the Conventions to acceptance of their obligations.22 See
Bybee Memorandum, supra note 5, at 10.
    Our recourse to fundamental principles to address an ambiguity in article 4 is
not unusual. In the context of the law of armed conflict, interpreters faced with
changed or unexpected circumstances have not hesitated to resort to a treaty’s
fundamental principles to avoid a non-contextual reading of a treaty term that,
wrenched from its original 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 ambiguous than article 4.
    For example, when the Allied Powers occupied Germany and Japan at the end
of the Second World War, they did not apply rules of belligerent occupation set
forth in the Hague Regulations—and in particular the duty to “respect[], unless
absolutely prevented, the laws in force in the country,” see Hague Regulations art.
43—that were premised on fundamental assumptions that did not apply in those
contexts.23 Similarly, following the end of active hostilities in the Korean War, the

    22
       This principle would apply even if the entity that does not accept the burdens of the Convention
is or becomes actively intertwined in the armed conflict between the signatory States. See GC4 art. 2(3)
(providing that when a “Power[] in conflict” is not a Party, the Powers who are parties remain bound by
it only in “their mutual relations”); id. art. 4(2) (providing that “Nationals of a State which is not bound
by the Convention are not protected by it”).
    23
       See, e.g., R.Y. Jennings, Government in Commission, 23 Brit. Y.B. Int’l L. 112, 135–36 (1946)
(noting that the assumptions of the Hague Regulations—concerning the need to protect the sovereignty
of the legitimate government of the occupied territory and the inhabitants of the occupied territory from
being exploited for the prosecution of the occupant’s war—were not served by application of the
Regulations to occupied Germany, and concluding that “the whole raison d’être of the law of
belligerent occupation is absent in the circumstances of the Allied occupation of Germany, and to
attempt to apply it would be a manifest anachronism”); W. Friedmann, The Allied Military Government




                                                    55
                      Opinions of the Office of Legal Counsel in Volume 28


United Nations Powers declined to repatriate POWs who feared to return to their
countries, even though article 118 of GPW states that POWs “shall be released and
repatriated without delay after the cessation of active hostilities,” and even though
article 7 of GPW makes the right of repatriation non-waivable. The United States
and others supported this conclusion based on the fundamental purposes underly-
ing the Convention.24 In 1968, the Privy Council declined to extend POW status
under GPW to nationals of the State that captured them even though article 4 of
GPW contains no such express exception.25 This conclusion, which is generally
approved by commentators,26 was premised on the view that the fundamental
purpose of the Convention was “for the protection of the members of the national
forces of each against the other.”27
    Finally, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”)
has twice read GC4 article 4’s definition of “protected persons” to include within the
class of “protected persons” nationals of the party to the conflict in whose hands they
are found.28 The ICTY tribunals reached this conclusion, despite article 4’s limitation
of “protected person” status to those who find themselves in the hands of a power
“of which they are not nationals,” GC4 art. 4(1), on the basis of GC4’s fundamental
purposes—a source of interpretive guidance, the ICTY tribunals explained, that was
appropriate to look to because the framers of GC4 never could have contemplated
the scope or significance of “present-day inter-ethnic conflicts.”29 In these cases, the


of Germany 67 (1947) (“It is not . . . surprising that International Law . . . should not be fully equipped
to deal with an entirely unprecedented situation” following post-World War II occupations.); Roberts,
supra note 4, at 269–70 (1984) (citing Jennings and Friedman approvingly); Glahn, supra note 14, at
281 (Hague Regulations “lost their applicability to the Allied occupation of Germany”).
    24
       See, e.g., Dep’t of State, Memorandum Re: Legal Considerations Underlying the Position of the
United Nations Command Regarding the Issue of Forced Repatriation of Prisoners of War (Oct. 24,
1952); Howard S. Levie, Prisoners of War in International Armed Conflict, 59 Int’l L. Studies 424
(Naval War College 1978).
    25
       Public Prosecutor v. Oie Hee Koi, [1968] 2 W.L.R. 715, 727 (P.C.) (concluding that GPW “does
not extend the protection given to prisoners of war to nationals of the detaining power”).
    26
       See Ian Brownlie, Law of War—Geneva Convention Relative to the Treatment of Prisoners of
War, Articles 4 and 5—Burden of Proof on Issue of Protected Status—Status of Nationals of a Person
Owing ‘Allegiance’ to the Detaining Power, 43 Brit. Y.B. Int’l L. 234, 235–37 (1968–1969); R.R.
Baxter, Notes and Comments, The Privy Council on the Qualifications of Belligerents, 63 Am. J. Int’l
L. 290, 291 (1969); Draper, supra note 17, at 193–94 n.3.
    27
       Public Prosecutor v. Oie Hee Koi, [1968] 2 W.L.R. 715, 726 (P.C.).
    28
       Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Chamber Judgement ¶¶ 151–52 (Mar.
24, 2000); Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgement ¶¶ 163–70 (July 15,
1999). Cf. Flores v. S. Peru Copper Corp., 343 F.3d 140, 169 (2d Cir. 2003) (noting that although the
actions of the ICTY multinational tribunal may have some persuasive value, it is not “empowered to
create binding norms or customary international law”); Statute of the International Criminal Court for
Former Yugoslavia (as amended through May 19, 2003) (limiting ICTY’s charter to prosecutions under
current law).
    29
       Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Chamber Judgement ¶¶ 151–52 (Mar.
24, 2000); see also Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgement ¶¶ 163–70
(July 15, 1999).




                                                    56
     “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


ICTY tribunals read behind article 4’s assumption that persons should be identified
with the State of their nationality for purposes of article 4 “protected person” status
when the context in which GC4 was being applied did not bear out article 4’s State-
centric assumptions. In Tadic, for example, an ICTY Appeals Chamber noted that
GC4 was drafted when “wars were primarily between well-established States,” and
concluded, based on GC4’s “object and purpose,” that its State-centric terms should
not be applied woodenly in unanticipated “modern inter-ethnic armed conflicts such
as that in the former Yugoslavia.”30 Even more relevant for present purposes, the
ICTY Court noted that in such changed circumstances, “ethnicity may become
determinative of national allegiance,” and that “[u]nder these conditions, the require-
ment of nationality is even less adequate to define protected persons.”31 In short,
Tadic looked behind GC4 art. 4’s nationality criterion to find a criterion that better
served GC4’s object and purpose when applied to unforeseen circumstances.
   In determining whether al Qaeda operatives warrant “protected person” status
in occupied Iraq, it is at least as appropriate as in the cases described above, if not
more so, to look to the fundamental principles underlying GC4 to determine how a
genuine textual ambiguity in article 4 should be resolved in a context wholly
outside the contemplation of GC4’s drafters. Our recourse to these fundamental
principles supports the conclusion that, with the caveat addressed in Part III.D
below, al Qaeda operatives captured in occupied Iraq lack “protected person”
status under GC4.

           C. The Focus of the Fourth Geneva Convention on Protecting
                        Citizens and Permanent Residents

   We next consider the ambiguity in article 4 in light of the legal landscape
against which GC4 was negotiated, as well as the negotiation record itself. See
Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S.
658, 665–69 (1979) (emphasizing the historical background against which the
treaty at issue was signed); Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134
(1989) (stating that a treaty’s negotiating record “may of course be consulted to
elucidate a text that is ambiguous”); Vienna Convention art. 32, 1155 U.N.T.S. at
340 (providing that the “preparatory work of the treaty” may be consulted to
resolve ambiguities in a treaty’s text). These sources suggest that the protections
that GC4 provides for some unlawful combatants in occupied territory were

    30
       Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgement ¶ 166 (July 15, 1999).
    31
       Id.; see also Theodor Meron, Editorial Comment, Classification of Armed Conflict in the Former
Yugoslavia: Nicaragua’s Fallout, 92 Am. J. Int’l. L. 236, 239 (1998) (“Enforcing [article 4’s nation-
ality-based criteria for ‘protected person’ status] literally in . . . conflicts involving the disintegration of
a state or political entity and the resulting struggle between peoples and ethnic groups, would be the
height of legalism. . . . In many contemporary conflicts, the disintegration of states and the establish-
ment of new ones make nationality too messy a concept on which to base the application of interna-
tional humanitarian law.”).




                                                      57
                     Opinions of the Office of Legal Counsel in Volume 28


intended primarily to protect citizens and permanent residents who participate in
popular resistance movements—persons who as a general matter are not similarly
situated to members of an international terrorist organization engaged in global
armed conflict against the occupying powers.
    Pre-GC4 international law focused on the occupying power’s duty to protect the
occupied territory’s citizens and inhabitants, as distinct from other groups. The
preamble to the 1907 Hague Regulations (which GC4 expressly preserves, see
GC4 art. 154) declared that “the inhabitants” remained under the protection of the
“principles of the law of nations as they result from the usages established among
civilized peoples, from the laws of humanity, and the dictates of the public
conscience.” Hague Regulations pmbl. Subsequent international law retained this
general focus. For example, the London Charter for the Nuremberg Trials
considered “deportation” to be a war crime, and legal actions under that instru-
ment—including judgments of the International Military Tribunal at Nuremberg—
were used to punish actions directed at the occupied country’s citizens and
inhabitants.32
    GC4 derives from this tradition. Article 65 of GC4 specifies that penal provi-
sions enacted by the Occupying Power “shall not come into force before they have
been published and brought to the knowledge of the inhabitants in their own
language.” In like manner, GC4 requires the Occupying Power to ensure the food
and medical supplies “of the population” (art. 55), to ensure relief schemes if “the
whole or part of the population of an occupied territory is inadequately supplied”
(art. 59), and to “facilitate the proper working of all institutions devoted to the care
and education of children” (art. 50). Each of these provisions suggests obligations
focused on persons who constitute the permanent residents of the area.
    A similar focus underlies article 5’s express protection for “spies,” “saboteurs,”
and “person[s] under definite suspicion of activity hostile to the security of the
Occupying Power.” In the travaux préparatoires, the GC4 drafters assumed that
the protections they conferred on certain unlawful combatants were for local
citizens or permanent residents who engaged in activities hostile to the occupying
power. For example, in describing article 5, the Committee III Report said: “In
occupied territory, the fact that a national of the Occupied Power harbours
resentment against the Occupying Power is likewise insufficient [to deny rights of
communication under Article 5].” 2A Final Record at 815. Similarly, the Soviet

    32
       The focus on protecting citizens and inhabitants was evident, for example, in the definitions of
the crime of “deporting civilians” that emerged from United States v. Milch, 2 Trials of War Criminals
Before the Nuremberg Military Tribunals 353 (1946–1949) (trial of Field Marshal Erhard Milch). The
indictment in Milch 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. Id. at 691–93, 790,
879, 866.




                                                   58
     “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


delegate assumed that protected unlawful combatants in occupied territory were
“citizens” of the occupied country. See 2B Final Record at 379 (“I would like to
ask the originators of article 3A, and those who light-heartedly support it, whether
there is in the whole world a country whose citizens would be loyal to the Occupy-
ing Power.”).33
    The protections for POWs in occupied territory conferred by GPW confirm the
Geneva Conventions’ focus on the citizens and permanent residents of occupied
territory, as opposed to international terrorists. GPW extended POW status for the
first time to “[m]embers of . . . militias and members of other volunteer corps,
including those of organized resistance movements, belonging to a Party to the
conflict and operating in or outside their own territory, even if this territory is
occupied,” provided that they satisfy the traditional criteria for lawful combatancy.
GPW art. 4(A)(2) (emphasis added). The drafters of GPW included this provision
to confer future protections on some (though not all) of the actions of resistance
movements like those that fought the Nazis in occupied territory in World War II.34
In article 4(A)(2)’s negotiating history, the delegates understood and assumed that
the militia and volunteer corps entitled to protections in occupied territory were
indigenous resistance movements comprised of citizens, or at the very least
permanent residents, of the occupied countries.35 And in the debate over the GPW
Convention, numerous participants expressed sympathy for combatants fighting
the occupying power for reasons of “patriotism”—a term that can only be assumed



    33
       Cf. 2B Final Record at 379 (Mr. Morosov (Soviet Union)) (“Nor has this stipulation any bearing
whatsoever on members of the civilian population of occupied territories suspected of activity hostile
to the State”) (emphasis added); id. (“What has been said about alien nationals of an enemy Power who
may be in the territory of a belligerent is even more applicable to the civilian population of occupied
territories.”) (emphasis added).
    34
       See 2A Final Record at 562 (Committee Report) (describing the protections accorded by article
4A(2) as “an important innovation . . . which has become necessary as a result of the experience of the
Second World War”); The Geneva Conventions of 12 August 1949, Commentary, III Geneva Conven-
tion Relative to the Treatment of Prisoners of War 58 (Jean S. Pictet ed., 1960) (“[T]he term ‘resist-
ance’ . . . constitutes a clear reference to the events of the Second World War and to the resistance
movements which were active during that conflict.”); Levie, supra note 24, at 39 (“During World War
II so-called resistance movements sprang up or were created within the territory of most of the
countries occupied by an enemy, whether the occupation was partial or total. It was with respect to the
status of members of these types of resistance movements that the 1949 Diplomatic Conference was
attempting to make provision.”) (emphasis added).
    35
       See, e.g., 2A Final Record at 240 (Mr. Cohn (Denmark)) (“Civilians who took up arms in good
faith for the defence of their country against an invader should . . . have the benefit of the protection
accorded to prisoners of war”) (emphasis added); id. at 241 (Mr. Larmale (France)) (“recall[ing] the
discussions on the subject of the importance of resistance movements which had taken place at the
Conference of Government Experts”) (emphasis added); id. at 242 (Mr. Pesmazoglou (Greece)) (urging
that the term “member of a resistance movement” be included in article 4(A) and not the term
“partisan” since “it was a question of national, and not political, movements”) (emphasis added); id. at
426 (General Slavin (Soviet Union)) (“Civilians who took up arms in defence of the liberty of their
country should be entitled to the same protection as members of armed forces”) (emphasis added).




                                                   59
                     Opinions of the Office of Legal Counsel in Volume 28


to refer to citizens.36 In short, both GPW and GC4 contemplate protections in
occupied territory primarily for local citizens or permanent residents. When such
persons 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 who do not re-
spect the laws and customs of war receive “protected person” status under GC4.
    In sum, GC4’s drafting history, read in context, shows that GC4 was designed
to confer “protected person” status primarily on citizens or permanent residents of
occupied territory, whether unlawful combatants or not, but not on operatives of an
international terrorist organization who are in occupied territory as part of a global
armed conflict. It is natural to view citizens and permanent residents of occupied
territory as persons who “find themselves” in the hands of the Occupying Power,
and the resistance activities of citizens and permanent residents are most clearly
within the contemplation of the Geneva Conventions.37 By contrast, with a caveat
noted directly below, members of an international terrorist organization in
occupied territory to attack the occupying power are clearly outside the core
concern of GC4 and are difficult to characterize as persons who “find themselves”
in occupied territory, especially since the conferral on them of “protected person”
status would create tension with the Geneva Conventions’ fundamental principle
that warring entities must accept the Conventions’ burdens in order to claim their
benefits.

                     D. Iraqi al Qaeda Captured in Occupied Iraq

   The analysis thus far suggests that the ambiguity in article 4 should be resolved
by excluding al Qaeda terrorist operatives found in occupied Iraq from “protected
person” status. However, there is a sub-category of al Qaeda operatives—those
who are Iraqi nationals or permanent residents—for which the analysis differs.
Unlike non-Iraqi terrorist operatives, citizens and permanent residents of Iraq
could be said to “find themselves” there even under the narrow reading of article 4.
Such persons’ presence in occupied Iraq could be attributed as much to their status


    36
       See, e.g., 2A Final Record at 242 (General Sklyarov (Soviet Union)) (describing the militia and
volunteer corps as “organizations which had out of patriotism taken up arms to defend the honour and
the independence of their country”) (emphasis added); id. at 422 (Mr. Gardner (England)) (characteriz-
ing guerilla forces as those that “began by being groups of patriots and gradually established
discipline”) (emphasis added).
    37
       We note that stateless noncombatants might also be among the residents that the GC4 framers
meant to include within “protected persons,” at least when they “find themselves” in occupied territory
at the time of occupation or as a result of having fled there after occupation as refugees of war. See,
e.g., 2A Final Record at 621 (Mr. Castberg (Norway)) (“ex-German Jews denationalized by the Ger-
man Government, who found themselves in territories subsequently occupied by the German Army . . .
should be able to claim protection under the Convention”); see also ICRC Commentary on GC4, supra
note 4, at 47 (stating that article 4 was drafted to ensure that protections would not be withheld from
refugees who “had fled from their homeland and no longer considered themselves, or were no longer
considered, to be nationals of that country”).




                                                  60
    “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention


as citizens or permanent residents who owe that country allegiance as to their
status as agents of an international terrorist organization engaged in global armed
conflict with the occupying powers. Furthermore, as explained above, the negotiat-
ing record makes clear that GC4 was primarily designed to protect citizens and
permanent residents of occupied territory, including those who commit hostile acts
against the occupying power. “Protected person” status under GC4 exists primarily
for the benefit of these persons even when they act as unlawful combatants. It is
true that reading article 4 to protect anyone in Iraq who fights on behalf of an
enemy force that does not assume the burdens of GC4 is in tension with GC4’s
benefits-burden principle, described above. But in the context of citizens or
permanent residents of Iraq, we conclude that the text of article 4 (which is less
ambiguous in this narrow context) and the negotiating record provide more
compelling interpretive guidance than the guidance we derive from the benefit-
burdens principle.

                                  IV. Conclusion

   We conclude that the following persons, if captured in occupied Iraq, are not
“protected persons” within the meaning of GC4 article 4: U.S. nationals, nationals
of a State not bound by the Convention, nationals of a co-belligerent State, and
operatives of the al Qaeda terrorist organization who are not Iraqi nationals or
permanent residents of Iraq.

                                              JACK L. GOLDSMITH III
                                              Assistant Attorney General
                                               Office of Legal Counsel




                                         61
