b'\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the\nFourth Geneva Convention\nThe Geneva Convention Relative to the Protection of Civilian Persons in Time of War (IV) governs the\nUnited States occupation of Iraq.\nThe following persons, if captured in occupied Iraq, are not \xe2\x80\x9cprotected persons\xe2\x80\x9d within the meaning of\narticle 4 of the Fourth Geneva Convention: U.S. nationals, nationals of a State not bound by the\nConvention, nationals of a co-belligerent State, and operatives of the al Qaeda terrorist organization\nwho are not Iraqi nationals or permanent residents of Iraq.\n\nMarch 18, 2004\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nI. The Scope of Coverage of the Fourth Geneva Convention ................................ 36\nA. Armed Conflict With Iraq ......................................................................... 36\nB. Armed Conflict With al Qaeda .................................................................. 38\nII. \xe2\x80\x9cProtected Persons\xe2\x80\x9d in Occupied Territory....................................................... 40\nA. Geographical Limitation............................................................................ 41\nB. Citizens of the Occupying Power .............................................................. 42\nC. Nationals of a Non-Signatory State ........................................................... 43\nD. Nationals of a Co-Belligerent State ........................................................... 43\nE. Nationals of a Neutral State in the Territory of a Belligerent State ........... 45\nF. Persons Protected by Another Geneva Convention ................................... 47\nG. Unlawful Combatants ................................................................................ 48\nIII. Al Qaeda Operatives in Occupied Iraq ............................................................ 50\nA. The Interpretive Problem........................................................................... 50\nB. The Benefits-Burdens Principle of the Fourth Geneva Convention .......... 53\nC. The Focus of the Fourth Geneva Convention on Protecting Citizens\nand Permanent Residents........................................................................... 57\nD. Iraqi al Qaeda Captured in Occupied Iraq ................................................. 60\nIV. Conclusion ...................................................................................................... 61\nThe Geneva Convention Relative to the Protection of Civilian Persons in Time\nof War (\xe2\x80\x9cGC4\xe2\x80\x9d) provides \xe2\x80\x9cprotected persons\xe2\x80\x9d with certain protections if they \xe2\x80\x9cfind\nthemselves\xe2\x80\x9d in occupied territory or in the home territory of a party to an armed\nconflict. Id. art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. You have\nsought guidance on whether various categories of persons captured by U.S. forces\nin occupied Iraq\xe2\x80\x94and, in particular, al Qaeda operatives\xe2\x80\x94have \xe2\x80\x9cprotected\nperson\xe2\x80\x9d status under GC4.\nPart I of our opinion discusses the threshold issue of when GC4 \xe2\x80\x9capplies\xe2\x80\x9d to an\narmed conflict or occupation and concludes that GC4 governs the United States\noccupation of Iraq. Part II addresses GC4\xe2\x80\x99s general criteria for determining\n\n35\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n\xe2\x80\x9cprotected person\xe2\x80\x9d status, as well as the categories of persons that GC4 clearly\nexcludes from its definition of \xe2\x80\x9cprotected persons.\xe2\x80\x9d Part III addresses the status of\nal Qaeda operatives in occupied Iraq. It concludes that al Qaeda operatives\ncaptured in occupied Iraq who are neither citizens nor permanent residents of Iraq\nare not entitled to \xe2\x80\x9cprotected person\xe2\x80\x9d status.*\nI. The Scope of Coverage of the Fourth Geneva Convention\nGC4 does not apply to every conceivable armed conflict. Article 2 of GC4\xe2\x80\x94an\narticle that is worded identically to the corresponding provisions in each of the\nother three Geneva Conventions\xe2\x80\x94contemplates only three circumstances in which\nthe Geneva Conventions \xe2\x80\x9capply\xe2\x80\x9d: (a) in \xe2\x80\x9call cases of declared war or of any other\narmed conflict which may arise between two or more of the High Contracting\nParties,\xe2\x80\x9d id. art. 2(1); (b) in \xe2\x80\x9ccases of partial or total occupation of the territory of a\nHigh Contracting Party,\xe2\x80\x9d id. art. 2(2); or (c) when a non-signatory \xe2\x80\x9cPower[] in\nconflict\xe2\x80\x9d \xe2\x80\x9caccepts and applies the provisions [of GC4],\xe2\x80\x9d id. art. 2(3).\nThe United States is currently involved in two armed conflicts that are relevant\nto our analysis: the armed conflict with and occupation of Iraq, and the armed\nconflict with al Qaeda. In this Part we analyze how article 2 applies to each\nconflict considered independently. This analysis is not conclusive as to how GC4\napplies when the two conflicts become intertwined, as they may when al Qaeda\noperatives carry on their armed conflict against the United States in occupied Iraq.\nThis latter issue is addressed in Part III, infra.\nA. Armed Conflict With Iraq\nAs this Office has previously explained, the armed conflict with Iraq began in\nJanuary 1991 and continued beyond March 19, 2003, the date on which President\nBush ordered United States military forces to invade Iraq in response to Iraq\xe2\x80\x99s\n\xe2\x80\x9cmaterial breach\xe2\x80\x9d of an earlier ceasefire agreement accepted by Iraq on April 6,\n1991. See Exec. Order No. 13290, 68 Fed. Reg. 14,307 (Mar. 20, 2003) (determining that the United States and Iraq are \xe2\x80\x9cengaged in armed hostilities\xe2\x80\x9d); Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II,\nGeneral Counsel, Department of Defense, from John C. Yoo, Deputy Assistant\nAttorney General, Office of Legal Counsel, Re: The President\xe2\x80\x99s Authority to\nProvide Military Equipment and Training to Allied Forces and Resistance Forces\nin Foreign Countries at 2 (May 6, 2003) (determining that a state of armed conflict\nhas existed between the United States and Iraq since January 1991).\n*\nEditor\xe2\x80\x99s Note: After this opinion was issued, the Supreme Court held in Hamdan v. Rumsfeld, 548\nU.S. 557, 629\xe2\x80\x9331 (2006), that common article 3 of the Geneva Conventions is applicable to the United\nStates\xe2\x80\x99 armed conflict with al Qaeda. See infra notes 5 & 20. We also note that the published version of\nthis opinion omits a lengthy appendix (and a footnote referring to it) setting forth provisions of the\nGeneva Convention referred to in the opinion.\n\n36\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\nIn the spring of 2003, the United States and its allies defeated the Iraqi forces.\nGC4 does not itself provide criteria for determining when the occupation of Iraq\nbegan. The rule under customary international law is that the United States is an\noccupying power over any Iraqi territory that is \xe2\x80\x9cactually . . . under the authority\xe2\x80\x9d\nof the United States. See Hans-Peter Gasser, Protection of the Civilian Population,\nin The Handbook of Humanitarian Law in Armed Conflicts 240\xe2\x80\x9341, 243 (Dieter\nFleck ed., 1999); Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-9514/2-T, Trial Judgment \xc2\xb6\xc2\xb6 338\xe2\x80\x9339 (Feb. 26, 2001); see also Regulations Respecting the Laws and Customs of War on Land (\xe2\x80\x9cHague Regulations\xe2\x80\x9d) art. 42(1), Oct.\n18, 1907, 36 Stat. 2277, 1 Bevans 631 (annexed to Convention (IV) Respecting the\nLaws and Customs of War on Land) (same).1 Applying this standard, the United\nStates became an occupying power no later than April 16, 2003, the date on which\nGeneral Tommy Franks announced the creation of the \xe2\x80\x9cCoalition Provisional\nAuthority to exercise powers of government temporarily, and as necessary,\nespecially to provide security, to allow the delivery of humanitarian aid and to\neliminate weapons of mass destruction.\xe2\x80\x9d See Tommy R. Franks, Freedom Message\nto the Iraqi People (Apr. 16, 2003).2\nBoth the United States and Iraq have ratified GC4.3 GC4 governs the armed\nconflict between the United States and Iraq because the conflict is one between\n\xe2\x80\x9cHigh Contracting Parties\xe2\x80\x9d under article 2(1). It also governs the U.S. occupation\nof Iraq, because the United States has occupied \xe2\x80\x9cthe territory of a High Contracting Party\xe2\x80\x9d under article 2(2).4 Cf. S.C. Res. 1483, \xc2\xb6 5, U.N. Doc. S/RES/1483\n1\nThe Hague Regulations do not apply to the United States\xe2\x80\x99 conflict with and occupation of Iraq as\na matter of treaty law because Iraq is not a party to the Hague Convention. See Hague Regulations art.\n2, 36 Stat. at 2290 (\xe2\x80\x9cThe provisions contained in the Regulations referred to in Article 1, as well as in\nthe present Convention, do not apply except between Contracting Powers, and then only if all the\nbelligerents are parties to the Convention.\xe2\x80\x9d); Memorandum for Alberto R. Gonzales, Counsel to the\nPresident, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo,\nDeputy Assistant Attorney General, Office of Legal Counsel, Re: Authority of the President Under\nDomestic and International Law To Make Fundamental Institutional Changes to the Government of\nIraq at 10 (Apr. 14, 2003) (stating that \xe2\x80\x9cthe Hague Regulations do not expressly govern the U.S.\nconflict with Iraq\xe2\x80\x9d). But as the citations in the text make clear, article 42(1) of the Hague Regulations,\nwhich provides that occupation begins \xe2\x80\x9cwhen [territory] is actually placed under the authority of the\nhostile army,\xe2\x80\x9d reflects customary international law.\n2\nIt is possible, either at present or in the future, that some areas in Iraq might not be sufficiently\nunder the authority of the United States to satisfy this definition of \xe2\x80\x9coccupation.\xe2\x80\x9d We have not been\nasked to address the geographic scope of the United States\xe2\x80\x99 \xe2\x80\x9coccupation\xe2\x80\x9d in this opinion, and our\nanalysis applies only to the United States\xe2\x80\x99 conduct in those areas of Iraq that are \xe2\x80\x9cactually . . . under the\nauthority\xe2\x80\x9d of the United States.\n3\nIraq acceded to the Geneva Conventions on February 14, 1956, without reservations. See 2 Peter\nH. Rohn, World Treaty Index 553, 555, 557, 558 (2d ed. 1983).\n4\nSome commentators have argued that article 2(2) refers only to occupations that (in the language\nof article 2(2)) \xe2\x80\x9cmeet[] with no armed resistance.\xe2\x80\x9d See, e.g., The Geneva Conventions of 12 August\n1949, Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of\nWar 21 (Jean S. Pictet ed., International Committee of the Red Cross 1958) (\xe2\x80\x9cICRC Commentary on\nGC4\xe2\x80\x9d) (arguing that article 2(2) refers only to occupations that have occurred \xe2\x80\x9cwithout a declaration of\n\n37\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n(May 22, 2003) (calling upon \xe2\x80\x9call concerned [in Iraq] to comply fully with their\nobligations under international law including in particular the Geneva Conventions\nof 1949 and the Hague Regulations of 1907\xe2\x80\x9d).\nB. Armed Conflict With al Qaeda\nThe United States is also engaged in an armed conflict with al Qaeda. See\nPresident\xe2\x80\x99s Military Order of November 13, 2001, \xc2\xa7 1(a), 66 Fed. Reg. 57,833\n(\xe2\x80\x9cInternational terrorists, including members of al Qaida, have carried out attacks\non United States diplomatic and military personnel and facilities abroad and on\ncitizens and property within the United States on a scale that has created a state of\narmed conflict that requires the use of the United States Armed Forces.\xe2\x80\x9d);\nAuthorization for Use of Military Force, Pub. L. No. 107-40, \xc2\xa7 2(a), 115 Stat. 224,\n224 (2001) (authorizing the President \xe2\x80\x9cto use all necessary and appropriate force\nagainst those nations, organizations, or persons he determines planned, authorized,\ncommitted, or aided the terrorist attacks that occurred on September 11, 2001, or\nharbored such organizations or persons, in order to prevent any future acts of\ninternational terrorism against the United States by such nations, organizations or\npersons\xe2\x80\x9d); Legality of the Use of Military Commissions to Try Terrorists, 25 Op.\nO.L.C. 238, 260\xe2\x80\x9361 (2001) (concluding that the President may properly determine\nthat an \xe2\x80\x9carmed conflict\xe2\x80\x9d exists between the United States and al Qaeda.).\nAs we explain below, the drafters of the Geneva Conventions did not contemplate\nthe possibility of an armed conflict between a State and an international non-State\nterrorist organization like al Qaeda. It is thus no surprise that, unlike the armed\nconflict with Iraq, the armed conflict with al Qaeda does not satisfy any of the article\n2 prerequisites for the applicability of GC4. The President has previously determined\nthat the conflict with al Qaeda does not satisfy article 2 of the Geneva Convention\nRelative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,\nT.I.A.S. No. 3364 (\xe2\x80\x9cGPW\xe2\x80\x9d) because \xe2\x80\x9cAl-Qaida is not a state party to the Geneva\nConvention; it is a foreign terrorist group.\xe2\x80\x9d Office of the Press Secretary, The White\nHouse, Fact Sheet: Status of Detainees at Guantanamo (Feb. 7, 2002), available at\nhttp://www.whitehouse.gov/news/releases/2002/02/20020207-13.html (last visited\non Mar. 17, 2004). This determination under article 2 of GPW applies fully to the\nidentically worded article 2 in GC4. Nonetheless, it is useful to review why the\n\nwar and without hostilities\xe2\x80\x9d); Adam Roberts, What is a Military Occupation?, 55 Brit. Y.B. Int\xe2\x80\x99l L.\n249, 253 (1984) (agreeing with ICRC). On this view, article 2(1) rather than article 2(2) would trigger\nthe application of GC4 to occupations, like the one in Iraq, that grow out of an armed conflict, even\nthough article 2(1) does not expressly refer to occupations following hostilities. See ICRC Commentary\non GC4, supra, at 21 (arguing that article 2(1) applies to \xe2\x80\x9ccases in which territory is occupied during\nhostilities\xe2\x80\x9d); Roberts, supra, at 253 (agreeing). We need not decide whether this argument is valid. If it\nis, then the occupation of Iraq satisfies article 2(1) because it arose out of an armed conflict between\ncontracting parties. If it is not, then the occupation of Iraq satisfies article 2(2) because, as stated in the\ntext, it is an \xe2\x80\x9coccupation of the territory\xe2\x80\x9d of a contracting party.\n\n38\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\narmed conflict with al Qaeda does not satisfy article 2 and thus does not trigger the\napplicability of GC4.\nThe U.S.-al Qaeda armed conflict is not one \xe2\x80\x9cbetween two or more of the High\nContracting Parties\xe2\x80\x9d within the meaning of article 2(1).5 Al Qaeda has not signed\nor ratified GC4. Nor could it. Al Qaeda is not a State. Rather, it is a terrorist\norganization composed of members from many nations, with ongoing military\noperations in many nations. As a non-State entity, it cannot be a \xe2\x80\x9cHigh Contracting\nParty\xe2\x80\x9d to the Convention. See Bybee Memorandum, supra note 5, at 9. In addition,\nthe U.S.-al Qaeda armed conflict has not resulted in the \xe2\x80\x9coccupation of the\nterritory of a High Contracting Party\xe2\x80\x9d within the meaning of article 2(2). As a nonState actor, al Qaeda lacks any territory that could possibly be occupied. Finally, al\nQaeda is not a \xe2\x80\x9cPower[] in conflict\xe2\x80\x9d that can \xe2\x80\x9caccept[] and appl[y]\xe2\x80\x9d GC4 within\nthe meaning of article 2(3). See, e.g., G.I.A.D. Draper, The Red Cross Conventions\n16 (1958) (arguing that \xe2\x80\x9cin the context of Article 2, para. 3, \xe2\x80\x98Powers\xe2\x80\x99 means States\ncapable then and there of becoming Contracting Parties to these Conventions\neither by ratification or by accession\xe2\x80\x9d); 2B Final Record of the Diplomatic\nConference of Geneva of 1949, at 108 (explaining that article 2(3) would impose\nan \xe2\x80\x9cobligation to recognize that the Convention be applied to the non-Contracting\nadverse State, in so far as the latter accepted and applied the provisions thereof\xe2\x80\x9d)\n(emphasis added) (\xe2\x80\x9cFinal Record\xe2\x80\x9d); ICRC Commentary on GC4, supra note 4, at\n23 (using \xe2\x80\x9cnon-Contracting State\xe2\x80\x9d interchangeably with \xe2\x80\x9cnon-Contracting Power\xe2\x80\x9d\nand \xe2\x80\x9cnon-Contracting Party\xe2\x80\x9d). And in any event, far from embracing GC4 or any\nother provision of the law of armed conflict, al Qaeda has consistently acted in\nflagrant defiance of the law of armed conflict.6\nIn sum, applying article 2 to the two conflicts, considered independently, we\nconclude that GC4 applies to the United States\xe2\x80\x99 armed conflict with and occupation of Iraq but does not apply to its armed conflict with al Qaeda.\n\n5\nNor does the United States\xe2\x80\x99 conflict with al Qaeda implicate common article 3 of the Geneva\nConventions, which governs \xe2\x80\x9carmed conflict[s] not of an international character occurring in the\nterritory of one of the High Contracting Parties.\xe2\x80\x9d As we have previously explained, common article 3\napplies only to purely internal armed conflicts. See Memorandum for Alberto R. Gonzales, Counsel to\nthe President, and William J. Haynes II, General Counsel, Department of Defense, from Jay S. Bybee,\nAssistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to al Qaeda\nand Taliban Detainees at 10 (Jan. 22, 2002) (\xe2\x80\x9cBybee Memorandum\xe2\x80\x9d). See also infra note 20.\n6\nFor example, on September 11, 2001, nineteen al Qaeda operatives wearing civilian clothes hijacked\ncommercial airliners and used them as weapons to target and kill thousands of U.S. civilians. More\ngenerally, Osama bin Laden has declared a jihad against the U.S. government that instructed his followers\nto target American civilians as well as military personnel, without regard for international law. See World\nIslamic Front Statement, Jihad Against Jews and Crusaders (Feb. 23, 1998), available at http://www.fas.\norg/irp/world/para/docs/980223-fatwa.htm (last visited on Feb. 26, 2004).\n\n39\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nII. \xe2\x80\x9cProtected Persons\xe2\x80\x9d in Occupied Territory\nOnce GC4 is deemed to \xe2\x80\x9capply\xe2\x80\x9d to the armed conflict with and occupation of\nIraq under article 2, article 4 of GC4 defines a class of \xe2\x80\x9c[p]ersons protected by the\nConvention.\xe2\x80\x9d \xe2\x80\x9cProtected person\xe2\x80\x9d status carries with it various protections set forth\nin part III of GC4.7 In occupied territory, these protections relate to, among other\nthings, detention, interrogation, trial, punishment, and deportation. See, e.g., GC4\nart. 76 (\xe2\x80\x9cProtected persons accused of offences shall be detained in the occupied\ncountry, and if convicted they shall serve their sentences therein.\xe2\x80\x9d); id. art. 31 (\xe2\x80\x9cNo\nphysical or moral coercion shall be exercised against protected persons, in\nparticular to obtain information from them or from third parties.\xe2\x80\x9d); id. art. 33 (\xe2\x80\x9cNo\nprotected person may be punished for an offence he or she has not personally\ncommitted. Collective penalties and likewise all measures of intimidation or of\nterrorism are prohibited.\xe2\x80\x9d); id. art. 49 (\xe2\x80\x9cIndividual or mass forcible transfers, as\nwell as deportations of protected persons from occupied territory to the territory of\nthe Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of motive.\xe2\x80\x9d). \xe2\x80\x9cProtected person\xe2\x80\x9d status under GC4 is not related to,\nand should not be confused with, \xe2\x80\x9cprisoner of war\xe2\x80\x9d (\xe2\x80\x9cPOW\xe2\x80\x9d) status under GPW.\nMost notably, a \xe2\x80\x9cprotected person\xe2\x80\x9d under GC4 who commits an act of hostility\nagainst opposing forces does not receive the \xe2\x80\x9cbelligerent\xe2\x80\x99s privilege\xe2\x80\x9d accorded to\nPOWs who commit hostile acts against enemy forces before their capture.\n\xe2\x80\x9cProtected persons\xe2\x80\x9d can thus be tried, convicted, and (if appropriate) executed for\nsuch acts.\nGC4\xe2\x80\x99s general definition of \xe2\x80\x9cprotected persons\xe2\x80\x9d is set forth in article 4(1):\nPersons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a\nconflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.\nThe broad terms used in this definition suggest that persons located in the territory\nof occupied Iraq are \xe2\x80\x9cin the hands of\xe2\x80\x9d an occupying power and qualify for\n\n7\nIndividuals who are ineligible for \xe2\x80\x9cprotected person\xe2\x80\x9d status under GC4 may still receive the\nprotections under part II of GC4 that are not contingent on one\xe2\x80\x99s status as a \xe2\x80\x9cprotected person.\xe2\x80\x9d See id.\nart. 4(3) (noting that the \xe2\x80\x9cprovisions of Part II [of GC4] are . . . wider in application, as defined in\nArticle 13\xe2\x80\x9d). Specifically, part II, which includes articles 13\xe2\x80\x9326, \xe2\x80\x9ccovers the whole of the populations\nof the countries in conflict, without any adverse distinction based . . . on race, nationality, religion or\npolitical opinion.\xe2\x80\x9d Id. art. 13. The protections in part II are primarily designed to protect persons from\nthe adverse effects of hostilities, even in occupied territory. Among other things, part II concerns the\nestablishment in occupied territory of hospitals and safety zones to shelter the wounded, the sick,\nchildren, young mothers, and the aged, id. arts. 14\xe2\x80\x9315; requires belligerent parties to facilitate recovery\nof those killed or wounded, id. arts. 16\xe2\x80\x9317; requires belligerent parties to protect civilian hospitals and\nrelated items and personnel, id. arts. 18\xe2\x80\x9322; and confers some limited rights of communication upon the\npopulation of the occupied country, id. arts. 25\xe2\x80\x9326.\n\n40\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\n\xe2\x80\x9cprotected person\xe2\x80\x9d status so long as they \xe2\x80\x9cfind themselves\xe2\x80\x9d there. See ICRC\nCommentary on GC4, supra note 4, at 47 (\xe2\x80\x9cThe expression \xe2\x80\x98in the hands of\xe2\x80\x99 is\nused in an extremely general sense. . . . The mere fact of being in the territory of a\nParty to the conflict or in occupied territory implies that one is in the power or\n\xe2\x80\x98hands\xe2\x80\x99 of the Occupying Power.\xe2\x80\x9d). GC4 then establishes various exceptions and\nqualifications to this definition of \xe2\x80\x9cprotected person\xe2\x80\x9d based on geography,\nnationality, or protection by another Geneva Convention. We consider these\nexceptions and qualifications below.\nA. Geographical Limitation\nTo receive the protections provided for \xe2\x80\x9cprotected persons,\xe2\x80\x9d one must be located in either (1) \xe2\x80\x9coccupied territory,\xe2\x80\x9d or (2) the \xe2\x80\x9cterritory of a party to the conflict.\xe2\x80\x9d\nThis limitation does not emerge from article 4 itself, but rather from other\nprovisions in GC4. Most notably, part III of GC4, which governs the \xe2\x80\x9cStatus and\nTreatment of Protected Persons,\xe2\x80\x9d id. (title) (emphasis added), confers protections\nonly on \xe2\x80\x9cAliens\xe2\x80\x9d who find themselves \xe2\x80\x9cin the Territory of a Party to the Conflict,\xe2\x80\x9d\nid. pt. III, sec. II (title) (emphasis added), and persons who find themselves in\n\xe2\x80\x9cOccupied Territor[y],\xe2\x80\x9d id. pt. III, sec. III (title). See also id. pt. III, sec. I (title)\n(referring to \xe2\x80\x9cProvisions Common to the Territories of the Parties to the Conflict\nand to Occupied Territories\xe2\x80\x9d) (emphasis added); id. pt. III, sec. IV (title) (\xe2\x80\x9cRegulations for the Treatment of Internees\xe2\x80\x9d); id. art. 79 (specifying that the \xe2\x80\x9cInternees\xe2\x80\x9d\ngoverned by part III, section IV consist of \xe2\x80\x9cprotected persons\xe2\x80\x9d that have been\ninterned pursuant to the provisions of articles 41, 42, or 43 (in the territory of a\nparty to the conflict) or the provisions of articles 68 and 78 (in occupied territory)).\nArticle 5 tends to confirm this territorial nexus. In limiting the protections\navailable to otherwise \xe2\x80\x9cprotected persons\xe2\x80\x9d engaged in activities hostile to the\nsecurity of the State, article 5 speaks only about persons detained \xe2\x80\x9cin the territory\nof a Party to the conflict\xe2\x80\x9d or in \xe2\x80\x9coccupied territory.\xe2\x80\x9d Id. art. 5(1), (2).8\nThe meaning of the phrase \xe2\x80\x9cterritory of a Party to the conflict,\xe2\x80\x9d considered in\nisolation, is not self-evident. At first glance, one might think that the phrase\nincludes occupied territory, because the occupied power (to whom the territory\nbelongs) is a party to the conflict. But in the context of the entire Convention, the\nphrase clearly refers to the home territory of the party to the conflict in whose\nhands the \xe2\x80\x9cprotected person\xe2\x80\x9d finds himself. This is evident from several provisions\nin GC4. Part III of GC4 sets forth the requirements for the \xe2\x80\x9ctreatment of protected\n8\nCommentators agree that the protections accorded to \xe2\x80\x9cprotected persons\xe2\x80\x9d exist only in the territory\nof a party to the conflict or in occupied territory. See ICRC Commentary on GC4, supra note 4, at 45\xe2\x80\x93\n46; Richard R. Baxter, So-Called \xe2\x80\x9cUnprivileged Belligerency\xe2\x80\x9d: Spies, Guerrillas, and Saboteurs, 28\nBrit. Y.B. Int\xe2\x80\x99l L. 323, 328 (1951); Raymund T. Yingling & Robert W. Ginnane, The Geneva\nConventions of 1949, 46 Am. J. Int\xe2\x80\x99l L. 393, 411 (1952); John Embry Parkerson, Jr., United States\nCompliance with Humanitarian Law Respecting Civilians During Operation Just Cause, 133 Mil. L.\nRev. 31, 74 (1991).\n\n41\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\npersons,\xe2\x80\x9d and its provisions clearly demonstrate that the \xe2\x80\x9cterritory of a party to the\nconflict\xe2\x80\x9d does not include \xe2\x80\x9coccupied territor[y].\xe2\x80\x9d First, part III of GC4 separates\nprovisions governing the \xe2\x80\x9cTerritory of a Party to the Conflict\xe2\x80\x9d from those governing \xe2\x80\x9cOccupied Territor[y].\xe2\x80\x9d See id. pt. III, sec. II (title) (\xe2\x80\x9cAliens in the Territory of\na Party to the Conflict\xe2\x80\x9d); id. pt. III, sec. III (title) (\xe2\x80\x9cOccupied Territor[y]\xe2\x80\x9d). See\nalso id. pt. III, sec. I (title) (referring to \xe2\x80\x9cProvisions Common to the Territories of\nthe Parties to the Conflict and to Occupied Territories\xe2\x80\x9d) (emphasis added). In\naddition, the rules that govern the \xe2\x80\x9cterritory of a party to the conflict\xe2\x80\x9d are very\ndifficult to reconcile with the obligations imposed on an occupying power by\nsection III. Article 49(1), which is included in part III, section III\xe2\x80\x99s rules for\n\xe2\x80\x9cOccupied Territories,\xe2\x80\x9d generally prohibits \xe2\x80\x9cforcible transfers, as well as deportations\xe2\x80\x9d of \xe2\x80\x9cprotected persons.\xe2\x80\x9d9 The provisions of part III, section II, by contrast,\nenvision considerably more latitude in removing \xe2\x80\x9cprotected persons\xe2\x80\x9d found in the\n\xe2\x80\x9cterritory of a party to the conflict.\xe2\x80\x9d See, e.g., id. art. 45(3) (\xe2\x80\x9cProtected persons\nmay be transferred by the Detaining Power only to a Power which is a party to the\npresent Convention and after the Detaining Power has satisfied itself of the\nwillingness and ability of such transferee Power to apply the present Convention.\xe2\x80\x9d)\n(emphasis added); id. art. 45(5) (\xe2\x80\x9cThe provisions of this Article do not constitute\nan obstacle to the extradition, in pursuance of extradition treaties concluded before\nthe outbreak of hostilities, of protected persons accused of offences against\nordinary criminal law.\xe2\x80\x9d). So any uncertainty about the phrase \xe2\x80\x9cterritory of a party\nto the conflict\xe2\x80\x9d is eliminated by consideration of the clear distinctions drawn in the\nfirst three sections of part III.10\nIn sum, the protections afforded to \xe2\x80\x9cprotected persons\xe2\x80\x9d by GC4 apply only to\npersons who \xe2\x80\x9cfind themselves\xe2\x80\x9d in occupied territory or in the home territory of a\nparty to the conflict.\nB. Citizens of the Occupying Power\nThe general definition of \xe2\x80\x9cprotected person\xe2\x80\x9d in article 4(1) by its terms does not\nextend to persons who \xe2\x80\x9cfind themselves . . . in the hands of\xe2\x80\x9d an occupying power\nthat is the State of their nationality. In the context of U.S. obligations in occupied\nIraq, this means that U.S. citizens in the hands of the U.S. government are not\n9\n\nArticle 49(2) provides a limited exception to this rule:\nNevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand.\nSuch evacuations may not involve the displacement of protected persons outside the\nbounds of the occupied territory except when for material reasons it is impossible to\navoid such displacement. Persons thus evacuated shall be transferred back to their\nhomes as soon as hostilities in the area in question have ceased.\n\n10\n\nThis point is so obvious that commentators assume it without discussion. See, e.g., ICRC Commentary on GC4, supra note 4, at 61\xe2\x80\x9362; Yingling & Ginnane, supra note 8, at 417; Parkerson, supra\nnote 8, at 73\xe2\x80\x9374.\n\n42\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\n\xe2\x80\x9cprotected persons.\xe2\x80\x9d Despite this exception to \xe2\x80\x9cprotected person\xe2\x80\x9d status, article\n70(2) of GC4 provides:\nNationals of the occupying Power who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State, shall\nnot be arrested, prosecuted, convicted or deported from the occupied\nterritory, except for offences committed after the outbreak of hostilities, or for offences under common law committed before the outbreak of hostilities which, according to the law of the occupied State,\nwould have justified extradition in time of peace.\nU.S. nationals captured in Iraq who satisfy the requirements of article 70 receive\nits limited protections.\nC. Nationals of a Non-Signatory State\nArticle 4(2) provides that \xe2\x80\x9c[n]ationals of a State which is not bound by\xe2\x80\x9d GC4\nare not \xe2\x80\x9cprotected persons.\xe2\x80\x9d Almost every State in the world has ratified GC4. At\npresent, we are aware of only two States that have not: the Marshall Islands and\nNauru. See Office of the Legal Adviser, Dep\xe2\x80\x99t of State, Treaties in Force 456\xe2\x80\x9357\n(2003) (listing States-Parties to the Geneva Conventions). In occupied Iraq,\ncitizens of these States who \xe2\x80\x9cfind themselves . . . in the hands of\xe2\x80\x9d the United States\nwill not be \xe2\x80\x9cprotected persons,\xe2\x80\x9d unless and until their State of citizenship agrees to\nbe bound by GC4.\nD. Nationals of a Co-Belligerent State\nArticle 4(2) further excludes from \xe2\x80\x9cprotected person\xe2\x80\x9d status \xe2\x80\x9cnationals of a cobelligerent State\xe2\x80\x9d that has \xe2\x80\x9cnormal diplomatic representation in the State in whose\nhands they are.\xe2\x80\x9d GC4 does not define the term \xe2\x80\x9cco-belligerent.\xe2\x80\x9d At the time the\nConvention was being drafted, the term \xe2\x80\x9cbelligerent\xe2\x80\x9d was commonly used to\n\xe2\x80\x9cdesignate[] either of two nations which are actually in a state of war with each\nother, as well as their allies actively co-operating, as distinguished from a nation\nwhich takes no part in the war and maintains a strict indifference as between the\ncontending parties, called a \xe2\x80\x98neutral.\xe2\x80\x99\xe2\x80\x9d Black\xe2\x80\x99s Law Dictionary 197 (4th ed. 1951);\nsee also 1 Oxford English Dictionary 787 (1933) (defining \xe2\x80\x9cbelligerent\xe2\x80\x9d as \xe2\x80\x9c[a]\nnation, party, or person waging regular war (recognized by the law of nations).\xe2\x80\x9d).\nThe addition of the prefix \xe2\x80\x9cco-\xe2\x80\x9d distinguishes, in broad terms, allies from enemies.\nSee ICRC Commentary on GC4, supra note 4, at 49 (stating that \xe2\x80\x9cco-belligerent[s]\xe2\x80\x9d and \xe2\x80\x9callies\xe2\x80\x9d are synonyms); Michael Bothe et al., New Rules for Victims of\nArmed Conflicts 440 (1982) (characterizing article 4\xe2\x80\x99s reference to \xe2\x80\x9ccobelligerents\xe2\x80\x9d as a reference to \xe2\x80\x9callies\xe2\x80\x9d). This usage is consistent with a prominent\nepisode during World War II. In 1943, when Italy surrendered to the allies and\ndeclared war on Germany, it was formally accepted as \xe2\x80\x9ca co-belligerent [with the\n\n43\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nUnited States, Great Britain, and the Soviet Union] in the war against Germany.\xe2\x80\x9d\nStatement by the President of the United States, the Prime Minister of Great\nBritain, and the Premier of the Soviet Union on Italy\xe2\x80\x99s Declaration of War,\nreprinted in 1943 U.S. Naval War College, International Law Documents 92\n(1945).\nThe status of belligerency is not always easy to establish, however, because\nGC4 does not require that a state of armed conflict be formally \xe2\x80\x9crecognized\xe2\x80\x9d by\nthe States involved. See GC4 art. 2(1). Because belligerent States are defined in\ncontrast with neutral ones, neutrality law may provide guidance in determining\nwhen a State has become a co-belligerent. To remain neutral, a State must not\nactively participate in hostilities and (with exceptions not relevant here) must not\npermit its territory to be used by belligerents as a sanctuary or base of operations.\nSee, e.g., Michael Bothe, The Law of Neutrality, in The Handbook of Humanitarian Law in Armed Conflicts \xc2\xb6 1109, at 495 (Dieter Fleck ed., 1999) (a neutral State\n\xe2\x80\x9cmust prevent any attempt by a party to the conflict to use its territory for military\noperations\xe2\x80\x9d); id. \xc2\xb6 1111, at 497 (\xe2\x80\x9cIf the neutral state takes part [in acts of war by a\nparty to the conflict] by engaging its own military forces, this is a clear example\xe2\x80\x9d\nof forbidden assistance.); Yoram Dinstein, War, Aggression and Self-Defence 2328 (3d ed. 2001) (similar). Prior U.S. practice is consistent with the conclusion that\na country becomes a co-belligerent when it permits U.S. armed forces to use its\nterritory for purposes of conducting military operations.11\nFor these reasons, the exception to \xe2\x80\x9cprotected person\xe2\x80\x9d status for nationals of\n\xe2\x80\x9cco-belligerent[s]\xe2\x80\x9d in article 4 includes, at a minimum, nationals of countries that\nsend military forces to participate in Coalition combat operations or that allow\ntheir territory to be used as a base for such operations. Applying this definition to\nIraq, we conclude, based on information currently available to us, that the United\nKingdom, Australia, Spain, Poland, Kuwait, and Qatar are \xe2\x80\x9cco-belligerent[s]\xe2\x80\x9d\nwithin the meaning of article 4.12 This list is not meant to exclude other States that\n\n11\nIn 1970, President Nixon ordered U.S. forces in Vietnam to cross the border into Cambodia to\nattack bases that\xe2\x80\x94despite Cambodia\xe2\x80\x99s professions of neutrality\xe2\x80\x94were being used by North Vietnamese and Viet Cong forces. The State Department Legal Adviser explained that the United States affirmatively decided not to secure the \xe2\x80\x9cadvance, express request of the Government of Cambodia for our\nmilitary actions on Cambodian territory,\xe2\x80\x9d because that level of cooperation would have \xe2\x80\x9ccompromised\nthe neutrality of the Cambodian Government\xe2\x80\x9d and the United States \xe2\x80\x9cdid not wish to see Cambodia\nbecome a co-belligerent along with South Viet-Nam and the United States.\xe2\x80\x9d Military Operations in\nCambodia, 64 Am. J. Int\xe2\x80\x99l L. 932, 935 (1970). President Nixon himself made the same point in\nconnection with the simultaneous decision to provide equipment for the Cambodian Army. See Address\nto the Nation on the Situation in Southeast Asia, Pub. Papers of Pres. Richard Nixon 405, 407 (Apr. 30,\n1970) (\xe2\x80\x9c[T]he aid we will provide will be limited for the purpose of enabling Cambodia to defend its\nneutrality and not for the purpose of making it an active belligerent on one side or the other.\xe2\x80\x9d).\n12\nThere should be no dispute that each of these States \xe2\x80\x9chas normal diplomatic representation\xe2\x80\x9d in the\nUnited States. GC4 art. 4(2). Each of them maintains an embassy in Washington, D.C., and (although\nthis is not required by the text of article 4) the United States also maintains an embassy in each of their\ncapitals.\n\n44\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\nmay be in a similar position; it merely reflects the information currently available\nto this Office.\nAs for States that did not participate in actual combat operations in Iraq but that\nsubsequently play some role in the occupation of Iraq, we have not located\nauthority or analysis regarding the level of participation in an occupation that\nsuffices to trigger \xe2\x80\x9cco-belligerent\xe2\x80\x9d status under GC4. We believe, however, that\nmere participation in any aspect of the occupation itself will not always suffice to\nconstitute co-belligerency, especially when a State\xe2\x80\x99s specific contribution has no\ndirect nexus with belligerent or hostile activities. For instance, if a State merely\nassists the Coalition in fulfilling the requirement under article 50(1) of GC4 to\n\xe2\x80\x9cfacilitate the proper working of all institutions devoted to the care and education\nof children,\xe2\x80\x9d it would not be a belligerent. But a State that sends military forces to\nassist in rounding up Baathist remnants and imposing general security in Iraq, and\nespecially one that participates in hostile activities in Iraq, will engage in conduct\nproperly characterized as belligerent. In sum, the determination whether a State is\na \xe2\x80\x9cco-belligerent\xe2\x80\x9d by virtue of its participation in the occupation of Iraq turns on\nwhether the participation is closely related to \xe2\x80\x9chostilities.\xe2\x80\x9d\nE. Nationals of a Neutral State in the Territory of a Belligerent State\nArticle 4(2) also excludes from \xe2\x80\x9cprotected person[]\xe2\x80\x9d status nationals \xe2\x80\x9cof a\nneutral State who find themselves in the territory of a belligerent State,\xe2\x80\x9d as long as\nthe neutral State has \xe2\x80\x9cnormal diplomatic representation in the State in whose hands\nthey are.\xe2\x80\x9d The phrase \xe2\x80\x9cterritory of a belligerent State\xe2\x80\x9d might appear at first to be\ncapable of bearing two different readings. First, it might refer to the territory of\nany State that participates in an armed conflict covered by GC4. As applied to the\narmed conflict with Iraq, this interpretation would mean that citizens of neutral\nStates in occupied Iraq would not be \xe2\x80\x9cprotected persons\xe2\x80\x9d so long as the neutral\nStates had \xe2\x80\x9cnormal diplomatic representation\xe2\x80\x9d in the United States. Second,\n\xe2\x80\x9cterritory of a belligerent State\xe2\x80\x9d might refer to the home territory of the party to the\nconflict in whose hands the citizen of the neutral State finds himself. As applied to\nthe armed conflict with Iraq, this interpretation would deny \xe2\x80\x9cprotected person[]\xe2\x80\x9d\nstatus to citizens of neutral States who find themselves in the territory of the\nUnited States, but not to those who find themselves in occupied Iraq.\nWe conclude that the second interpretation is correct. The phrase \xe2\x80\x9c[n]ationals of\na neutral State who find themselves in the territory of a belligerent State\xe2\x80\x9d must be\nunderstood in light of the Convention\xe2\x80\x99s overarching structure. As noted earlier, the\nspecific protections that the Convention confers on \xe2\x80\x9cprotected persons\xe2\x80\x9d apply in\nonly two places: in occupied territory, or in the home territory of a party to the\nconflict. See supra Part II.A. If \xe2\x80\x9cterritory of a belligerent State\xe2\x80\x9d were construed to\ninclude occupied territory as well as the home territory of a party to the conflict,\nnationals of neutral States would not enjoy GC4\xe2\x80\x99s protections anywhere in the\nworld. Interpreting \xe2\x80\x9cterritory of a belligerent State\xe2\x80\x9d to include occupied territory\n\n45\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nwould thus render this phrase effectively meaningless. Such a construction is\ndisfavored. See, e.g., Factor v. Laubenheimer, 290 U.S. 276, 303\xe2\x80\x9304 (1933)\n(treaties should not be interpreted to render phrases \xe2\x80\x9cmeaningless or inoperative\xe2\x80\x9d).\nIt is true that article 4 uses the phrase \xe2\x80\x9cterritory of a belligerent State,\xe2\x80\x9d while the\nother provisions of GC4 employ the term \xe2\x80\x9cterritory of a party to the conflict\xe2\x80\x9d when\nreferring to home territory. Where drafters use different terms in the same treaty,\nthey are ordinarily presumed \xe2\x80\x9cto mean something different.\xe2\x80\x9d See Air France v.\nSaks, 470 U.S. 392, 397\xe2\x80\x9398 (1985). But in this context, we do not think the\nvariation in language indicates a different meaning. It is easy to construe the\nphrases \xe2\x80\x9cterritory of a belligerent State\xe2\x80\x9d and \xe2\x80\x9cterritory of a party to the conflict\xe2\x80\x9d as\nsynonyms. Every \xe2\x80\x9cparty to the conflict\xe2\x80\x9d is a \xe2\x80\x9cbelligerent State,\xe2\x80\x9d and every\n\xe2\x80\x9cbelligerent State\xe2\x80\x9d is a \xe2\x80\x9cparty to the conflict.\xe2\x80\x9d More importantly, if we were to\nread the phrase \xe2\x80\x9cterritory of a belligerent State\xe2\x80\x9d to include occupied territory, the\nqualifying phrase would be entirely superfluous, and indeed would be contrary to\nthe treaty\xe2\x80\x99s apparent intention to narrow the exclusion from \xe2\x80\x9cprotected person\xe2\x80\x9d\nstatus to a subset of citizens of neutral States.\nThe negotiating record confirms this meaning of \xe2\x80\x9cterritory of a belligerent\nState.\xe2\x80\x9d Cf. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989) (stating that a\ntreaty\xe2\x80\x99s negotiating record \xe2\x80\x9cmay of course be consulted to elucidate a text that is\nambiguous\xe2\x80\x9d). Two aspects of this record make clear that the phrase \xe2\x80\x9cterritory of a\nbelligerent State\xe2\x80\x9d in article 4(2) means \xe2\x80\x9cthe home territory of a party to the\nconflict.\xe2\x80\x9d\nFirst, the delegates treated the phrases \xe2\x80\x9cterritory of a belligerent State\xe2\x80\x9d and\n\xe2\x80\x9cterritory of a Party to the conflict\xe2\x80\x9d as synonyms. A proposed draft of article 3A\n(which later became article 5) began: \xe2\x80\x9cWhere in the territory of a belligerent, the\nPower concerned is satisfied that an individual protected person is definitely\nsuspected of or engaged in activities hostile to the security of the State . . . .\xe2\x80\x9d\n3 Final Record at 100. This text was later changed to replace \xe2\x80\x9cterritory of a\nbelligerent\xe2\x80\x9d with \xe2\x80\x9cterritory of a Party to the conflict.\xe2\x80\x9d Although draft article 3A\nwas hotly debated throughout the Convention, none of the delegates reacted in any\nmanner suggesting that the change in language altered the scope of the original\narticle 3A.\nSecond, and more broadly, the drafting history reveals that the delegates fully\nunderstood that nationals of neutral States would have \xe2\x80\x9cprotected person\xe2\x80\x9d status in\noccupied territory. The Rapporteur who introduced the draft of article 3 (which\nlater became article 4), Col. Du Pasquier (Switzerland), said:\nA particularly delicate question was that of the position of the nationals of neutral States. The Drafting Committee had made a distinction between the position of neutrals in the home territory of belligerents and that of neutrals in occupied territory. In the former case,\nneutrals were protected by normal diplomatic representation; in the\nlatter case, on the other hand, the diplomatic representatives con-\n\n46\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\ncerned were only accredited to the Government of the occupied\nStates, whereas authority rested with the Occupying Power. It followed that all neutrals in occupied territory must enjoy protection\nunder the Convention, while neutrals in the home territory of a belligerent only required such protection if the State whose nationals\nthey were had no normal diplomatic representation in the territory in\nquestion.\n2A Final Record at 793. Not a single delegate questioned or challenged Du\nPasquier\xe2\x80\x99s interpretation of article 4\xe2\x80\x99s text, or his rationale as to why nationals of\nneutral States should receive \xe2\x80\x9cprotected person\xe2\x80\x9d status in occupied territory.13\nFor these reasons, we conclude that nationals of neutral States are not per se\nexcluded from \xe2\x80\x9cprotected person\xe2\x80\x9d status in occupied Iraq.14\nF. Persons Protected by Another Geneva Convention\nArticle 4(4) provides:\nPersons protected by the Geneva Convention for the Amelioration of\nthe Condition of the Wounded and Sick in Armed Forces in the Field\nof August 12, 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members\n\n13\nA U.S. delegate, Mr. Ginnane, additionally explained that the United States did not want nationals of neutral States to be protected in its home territory: \xe2\x80\x9c[I]n the United States of America and in\nvarious other countries a large section of the population was composed of aliens who were permanently\nsettled in its territory. In the United States those persons considered themselves as an integral part of\nthe country, and in time of war were treated in practically all respects as American citizens. Their\nchildren were brought up as citizens of the United States. Such persons had no need of protection under\nthe Convention.\xe2\x80\x9d 2A Final Record at 794. The Drafting Committee agreed and crafted article 4 to\nremove protections from nationals of neutral States only when they find themselves in the home\nterritory of a party to the conflict. Id.\n14\nMost commentators agree with our interpretation of the phrase \xe2\x80\x9cterritory of a belligerent State\xe2\x80\x9d in\narticle 4(2). See, e.g., Yingling & Ginnane, supra note 8, at 411 (1952); ICRC Commentary on GC4,\nsupra note 4, at 46; Joyce A.C. Guttheridge, The Geneva Conventions of 1949, 26 Brit. Y.B. Int\xe2\x80\x99l L.\n294, 320 (1949); Morris Greenspan, The Modern Law of Land Warfare 157\xe2\x80\x9358 (1959); 2 Howard S.\nLevie, The Code of International Armed Conflict 798 (1986); Vaughn A. Ary, Concluding Hostilities:\nHumanitarian Provisions in Cease-Fire Agreements, 148 Mil. L. Rev. 186, 238 (1995); Theodor\nMeron, Prisoners of War, Civilians and Diplomats in the Gulf Crisis, 85 Am. J. Int\xe2\x80\x99l. L. 104, 106\n(1991); Parkerson, supra note 8, at 110 (1991). We have discovered three commentators who, to the\ncontrary, have suggested in passing that nationals of neutral countries in occupied territory are not\n\xe2\x80\x9cprotected persons.\xe2\x80\x9d See Hans-Peter Gasser, Protection of the Civilian Population, in The Handbook of\nHumanitarian Law in Armed Conflicts 241 (Dieter Fleck ed., 1999); Gerhard von Glahn, The\nOccupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 91\n(1957); Jordan J. Paust, Judicial Power to Determine the Status and Rights of Persons Detained\nWithout Trial, 44 Harv. Int\xe2\x80\x99l L.J. 503, 512 n.29 (2003). These commentators provide no analysis in\nsupport of their assertions concerning the meaning of \xe2\x80\x9cterritory of a belligerent State,\xe2\x80\x9d and we thus find\nno basis in their statements for questioning the construction outlined above.\n\n47\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nof Armed Forces at Sea of August 12, 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of August 12,\n1949, shall not be considered as protected persons within the meaning of the present Convention.\nThis provision excludes persons who enjoy protection under one of the other three\nGeneva Conventions from claiming \xe2\x80\x9cprotected person\xe2\x80\x9d status under GC4. Such\npersons are excluded because they receive different protections appropriate to their\nparticular status under other Conventions.\nG. Unlawful Combatants\nGC4\xe2\x80\x99s full title\xe2\x80\x94\xe2\x80\x9cGeneva Convention Relative to the Protection of Civilian\nPersons in Time of War,\xe2\x80\x9d (emphasis added)\xe2\x80\x94suggests that \xe2\x80\x9c[t]he main object of\nthe Convention is to protect a strictly defined category of civilians.\xe2\x80\x9d ICRC\nCommentary on GC4, supra note 4, at 10 (emphasis added). Consistent with this\ntitle, article 4(4) of GC4 expressly excludes lawful combatants who enjoy POW\nstatus from \xe2\x80\x9cprotected person\xe2\x80\x9d status. These factors, combined with the fact that\nunlawful combatants generally receive less favorable treatment than lawful\ncombatants under the Geneva Convention system, see, e.g., Status of Taliban\nForces Under Article 4 of the Third Geneva Convention of 1949, 26 Op. O.L.C. 1\n(2002) (concluding that GPW withholds protections from persons who engage in\nhostilities but fail to satisfy criteria for lawful combatancy), might lead one to\nassume that unlawful combatants are categorically excluded from \xe2\x80\x9cprotected\nperson\xe2\x80\x9d status under GC4.\nGC4\xe2\x80\x99s text, however, contemplates that persons who \xe2\x80\x9cfind themselves\xe2\x80\x9d in\noccupied territory within the meaning of article 4 may engage in at least some\nforms of unlawful belligerency without forfeiting all of the benefits of \xe2\x80\x9cprotected\nperson\xe2\x80\x9d status. Article 5(2), for example, provides that \xe2\x80\x9can individual protected\nperson\xe2\x80\x9d detained in occupied territory \xe2\x80\x9cas a spy or saboteur, or as a person under\ndefinite suspicion of activity hostile to the security of the Occupying Power\xe2\x80\x9d does\nnot forfeit all GC4 protections. Rather, such persons forfeit only their \xe2\x80\x9crights of\ncommunication,\xe2\x80\x9d and then only when \xe2\x80\x9cabsolute military security so requires.\xe2\x80\x9d Id.\nart. 5(2). While the scope of conduct contemplated by the phrase \xe2\x80\x9cactivity hostile\nto the security of the Occupying Power\xe2\x80\x9d is not entirely clear,15 spies and saboteurs,\nat least, are unlawful combatants. See Ex parte Quirin, 317 U.S. 1, 30\xe2\x80\x9331 (1942).\nIn like manner, article 68 provides that the occupying power \xe2\x80\x9cmay impose the\ndeath penalty on a protected person only in cases where the person is guilty of\n\n15\nPresumably it should be understood to refer to activities similar to espionage and sabotage. See,\ne.g., Norfolk & W. Ry. v. Am. Train Dispatchers\xe2\x80\x99 Ass\xe2\x80\x99n, 499 U.S. 117, 129 (1991) (\xe2\x80\x9cUnder the principle\nof ejusdem generis, when a general term follows a specific one, the general term should be understood\nas a reference to subjects akin to the one with specific enumeration.\xe2\x80\x9d).\n\n48\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\nespionage, of serious acts of sabotage against the military installations of the\nOccupying Power or of intentional offences which have caused the death of one or\nmore persons.\xe2\x80\x9d GC4 art. 68. This provision appears to preserve the procedural and\nsubstantive trial protections conferred by articles 69\xe2\x80\x9378 of GC4 for at least some\ntypes of unlawful combatants who are otherwise \xe2\x80\x9cprotected persons\xe2\x80\x9d under article 4.\nGC4\xe2\x80\x99s negotiating record confirms that at least some forms of unlawful belligerency are not inconsistent with \xe2\x80\x9cprotected person\xe2\x80\x9d status. The original draft of\nGC4 (the Stockholm text) did not contain any provision akin to article 5. This\nomission prompted many delegations to express concern that a State engaged in an\narmed conflict or occupation would be left without \xe2\x80\x9csufficient protection against\nspies, saboteurs and traitors,\xe2\x80\x9d 2A Final Record at 796 (summary of statement of\nCol. Hodgson (Australia)), and that without a provision like article 5, the Convention \xe2\x80\x9cwould in certain cases jeopardize the very security of the State,\xe2\x80\x9d id. Such\nconcerns would not have been raised if the original draft had been understood\nwholly to exclude these sorts of unlawful belligerents from GC4\xe2\x80\x99s protections. The\nDrafting Committee responded to these concerns by proposing a new draft article\n3A (which ultimately became article 5). The Rapporteur, Colonel Du Pasquier\n(Switzerland), \xe2\x80\x9cexplained that internal security was one of the main preoccupations of national leaders in time of war,\xe2\x80\x9d and that article 3A had been drafted \xe2\x80\x9cin\norder to guard against [the] danger\xe2\x80\x9d that \xe2\x80\x9cthe protection given by the Convention\nshould . . . facilitate the subversive activities of \xe2\x80\x98fifth columnists.\xe2\x80\x99\xe2\x80\x9d 2A Final\nRecord at 796. Though some delegations opposed draft article 3A, see 2A Final\nRecord at 796\xe2\x80\x9397; 2B Final Record at 384, none expressed the view that it was\nunnecessary because persons who engaged in any form of unlawful belligerency\nwere categorically excluded from \xe2\x80\x9cprotected person\xe2\x80\x9d status under GC4.16\nWe thus conclude that at least some unlawful belligerents can fall within the\nscope of persons who are \xe2\x80\x9cprotected\xe2\x80\x9d under GC4 so long as they \xe2\x80\x9cfind themselves\xe2\x80\x9d\nin occupied territory within the meaning of article 4.17\n\n16\nSimilarly, in a discussion of then-article 3 (which became article 4), the United Kingdom\xe2\x80\x99s\ndelegate stated that the definition of \xe2\x80\x9cprotected persons\xe2\x80\x9d would \xe2\x80\x9ccover individuals participating in\nhostilities in violation of the laws of war,\xe2\x80\x9d and urged that then-article 3 be amended to ensure that\n\xe2\x80\x9c[c]ivilians who violated [the laws of war] should cease to be entitled to the treatment provided for lawabiding citizens.\xe2\x80\x9d 2A Final Record at 620\xe2\x80\x9321. No delegate disputed the United Kingdom\xe2\x80\x99s interpretation of then-article 3, but ultimately no amendments were made to article 3 in response to the United\nKingdom\xe2\x80\x99s concerns.\n17\nNumerous commentators conclude that unlawful combatants are not per se excluded from \xe2\x80\x9cprotected person\xe2\x80\x9d status under GC4. See, e.g., Albert J. Esgain & Col. Waldemar A. Solf, The 1949\nGeneva Convention Relative to the Treatment of Prisoners of War: Its Principles, Innovations, and\nDeficiencies, 41 N.C. L. Rev. 537, 549 (1962\xe2\x80\x931963); Baxter, supra note 8, at 328; Frits Kalshoven,\nConstraints on the Waging of War 41 (1991); G.I.A.D. Draper, The Status of Combatants and the\nQuestion of Guerilla Warfare, 45 Brit. Y.B. Int\xe2\x80\x99l L. 173, 193 (1971). Some commentators reach this\nconclusion by endorsing the view, expressed in the ICRC\xe2\x80\x99s Commentary, that \xe2\x80\x9c[e]very person in enemy\nhands must have some status under international law: he is either a prisoner of war and, as such,\n\n49\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nIII. Al Qaeda Operatives in Occupied Iraq\nWe now turn to the status of al Qaeda operatives captured in occupied Iraq.18\nA. The Interpretive Problem\nTo say that at least some unlawful combatants may be \xe2\x80\x9cprotected persons\xe2\x80\x9d in\noccupied territory is not to say that all unlawful combatants captured in Iraq\xe2\x80\x94and\nin particular al Qaeda terrorist operatives captured there\xe2\x80\x94enjoy this status. GC4\ndoes not expressly address the status of operatives of an international terrorist\norganization. Whether such terrorists possess \xe2\x80\x9cprotected person\xe2\x80\x9d status therefore\ndepends on whether they fall within the scope of article 4(1), which confines such\nstatus to \xe2\x80\x9cthose who, at a given moment and in any manner whatsoever, find\nthemselves, in the case of . . . occupation, in the hands of [an] . . . Occupying\nPower of which they are not nationals\xe2\x80\x9d (emphasis added).\nArticle 4\xe2\x80\x99s use of the phrase \xe2\x80\x9cfind themselves\xe2\x80\x9d is somewhat unusual and creates\nan ambiguity in the text. Some have read this phrase broadly, to include within the\n\xe2\x80\x9cprotected persons\xe2\x80\x9d described in article 4(1) all persons physically present in\noccupied territory. See, e.g., Affo v. Commander Israel Defence Force in the West\nBank, 29 I.L.M. 139, 152 (1990) (concluding that \xe2\x80\x9c\xe2\x80\x98protected persons\xe2\x80\x99 . . . em-\n\ncovered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of\nthe medical personnel of the armed forces who is covered by the First Convention. There is no\nintermediate status; nobody in enemy hands can be outside the law.\xe2\x80\x9d ICRC Commentary on GC4,\nsupra note 4, at 51 (emphasis in original). See, e.g., Paust, supra note 14, at 511\xe2\x80\x9312 & n.27; Laura A.\nDickinson, Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International\nTribunals, and the Rule of Law, 75 S. Cal. L. Rev. 1407, 1425 & n.92 (2002). But this is clearly not\nwhat the Geneva Conventions provide. Many non-POWs \xe2\x80\x9cin enemy hands\xe2\x80\x9d will fail to qualify for\nrights accorded to \xe2\x80\x9cprotected persons\xe2\x80\x9d under GC4, including (a) persons who are nationals of a State\nthat is not bound by the Convention, see GC4 art. 4(2); (b) persons who have taken up arms against\ntheir country of citizenship, see GC4 art. 4(1); (c) persons who have taken up arms against a cobelligerent of their country of citizenship, see GC4 art. 4(2); and (d) persons who were not captured in\neither the \xe2\x80\x9cterritory of a party to the conflict\xe2\x80\x9d or in \xe2\x80\x9coccupied territory,\xe2\x80\x9d see GC4 pt. III, secs. I\xe2\x80\x93III;\nsupra Part II.A. The commentators who endorse the ICRC Commentary make no effort to reconcile the\nCommentary\xe2\x80\x99s aspiration with these undisputable exclusions from GC4\xe2\x80\x99s protections. So while we\nrecognize that at least some types of unlawful combatants can have \xe2\x80\x9cprotected person\xe2\x80\x9d status under\nGC4, we reject the ICRC Commentary\xe2\x80\x99s mischaracterization of article 4.\n18\nIn discussing \xe2\x80\x9cal Qaeda operatives,\xe2\x80\x9d we refer not only to individuals who are formal members of\nal Qaeda, but also to those who have associated themselves with that organization and are fighting on\nits behalf. Cf. Ex parte Quirin, 317 U.S. 1, 37\xe2\x80\x9338 (1942) (\xe2\x80\x9cCitizens who associate themselves with the\nmilitary arm of the enemy government, and with its aid, guidance and direction enter this country bent\non hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of\nwar.\xe2\x80\x9d). Our analysis would also apply to members or associates of other terrorist organizations that are\nsufficiently connected to al Qaeda that they may be deemed participants in its armed conflict against\nthe United States, as well as to members or associates of terrorist organizations that are not so\nconnected to al Qaeda but are separately engaged in global armed conflict against the United States. For\npurposes of this opinion, we do not attempt to articulate a precise test for identifying such associates or\norganizations.\n\n50\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\nbraces . . . all persons found in the territory,\xe2\x80\x9d including infiltrators who are there\nillegally); cf., e.g., Yingling & Ginnane, supra note 8, at 411 (1952) (implicitly\ntaking this position). Under this interpretation, those who \xe2\x80\x9cfind themselves\xe2\x80\x9d in\noccupied territory are simply those who \xe2\x80\x9care\xe2\x80\x9d in occupied territory, and al Qaeda\noperatives in occupied Iraq would be \xe2\x80\x9cprotected persons\xe2\x80\x9d under GC4 unless they\nfall within article 4\xe2\x80\x99s limited nationality exclusions. While \xe2\x80\x9care\xe2\x80\x9d may be a possible\nreading of \xe2\x80\x9cfind themselves,\xe2\x80\x9d it is not the only, or even a particularly obvious,\nreading of that phrase. Had article 4\xe2\x80\x99s drafters intended this meaning, they could\nhave readily conveyed it with terminology far simpler and clearer than the phrase\n\xe2\x80\x9cfind themselves.\xe2\x80\x9d\nAlternatively, the phrase \xe2\x80\x9cfind themselves\xe2\x80\x9d can be read more narrowly to suggest an element of happenstance or coincidence, and to connote a lack of deliberate action relating to the circumstances that leave the persons in question in the\nhands of an occupying power. This reading of the phrase is both common and\nnatural. See, e.g., 4 Oxford English Dictionary 224 (1933) (defining \xe2\x80\x9cfind\xe2\x80\x9d as \xe2\x80\x9cto\ncome upon by chance or in the course of events\xe2\x80\x9d); Funk & Wagnalls New\nStandard Dictionary of the English Language 923 (1946) (defining \xe2\x80\x9cfind\xe2\x80\x9d as \xe2\x80\x9cto\ndiscover or meet with by accident; chance upon; fall in with\xe2\x80\x9d). On this narrower\nreading, al Qaeda operatives in occupied Iraq do not, as a general matter, \xe2\x80\x9cfind\nthemselves\xe2\x80\x9d in that country. Such persons are in Iraq as willing agents of an\ninternational terrorist organization engaged in global armed conflict against the\noccupying powers. Their presence in occupied territory, accordingly, can hardly be\nattributed to happenstance or coincidence.\nThis reading of article 4 accords with ordinary usage: one would not say that a\nterrorist who hijacks an airplane \xe2\x80\x9cfinds himself\xe2\x80\x9d on a hijacked airliner. His\npresence on the hijacked plane is surely not attributable in any way to happenstance or coincidence; he is there to carry out the hijacking. By contrast, one\nwould say that innocent passengers \xe2\x80\x9cfind themselves\xe2\x80\x9d aboard the hijacked flight.\nAlthough their presence on the hijacked plane is in some sense deliberate (presumably they chose to travel on that particular flight), it is accidental or co-incidental\nat least in the sense that it results from factors unrelated to the hijacking. This\nreading of \xe2\x80\x9cfind themselves\xe2\x80\x9d closely corresponds to the position recognized by one\nJustice of the Israeli Supreme Court in Affo, 29 I.L.M. at 180 (Bach, J., concurring\nin judgment) (acknowledging that those who \xe2\x80\x9cfind themselves\xe2\x80\x9d in occupied\nterritory could be limited to those who have \xe2\x80\x9cfallen into a situation where against\ntheir will they find themselves in the hands of one of the parties to the conflict or\nin the hands of the occupying power; whereas people who subsequently penetrate\ninto that territory with malicious intent are not included in that definition\xe2\x80\x9d). It has\nalso been suggested by at least one commentator. See Brian Farrell, Israeli\nDemolition of Palestinian Houses as a Punitive Measure: Application of International Law to Regulation 119, 28 Brook. J. Int\xe2\x80\x99l L. 871, 922 n.384 (2003) (noting\n\n51\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nthe possibility that certain persons in occupied territory do not \xe2\x80\x9c\xe2\x80\x98find themselves\xe2\x80\x99\nin the hands of the occupying power as contemplated by Article 4\xe2\x80\x9d).19\nAlthough article 4 can be read to exclude al Qaeda operatives from the class of\n\xe2\x80\x9cprotected persons,\xe2\x80\x9d we must acknowledge that article 4 could also be read to\ninclude such persons. This ambiguity, and GC4\xe2\x80\x99s more general failure to specifically address the status of international terrorist organization operatives in\noccupied territory, are not surprising. The Geneva Conventions were drafted at a\ntime when conflicts between States were the only transnational armed conflicts\nthat could have been imagined. The 1949 Diplomatic Conference of Geneva\noccurred in the aftermath of World War II, when States were the sole entities with\nthe organization, discipline, and resources capable of engaging in transnational\nwars. GC4\xe2\x80\x99s State-centric orientation is clearly reflected in article 2, which limits\nthe applicability of the Geneva Conventions to armed conflicts between States, and\noccupations of the territory of States, that have either ratified, or else accepted and\napplied, the Conventions. See supra Part I.B.20\nBecause article 4\xe2\x80\x99s application in this context is ambiguous, we turn to other\nsources for interpretive guidance. See Eastern Airlines, Inc. v. Floyd, 499 U.S.\n530, 534\xe2\x80\x9335 (1991) (providing that although treaty interpretation \xe2\x80\x9cbegin[s] with\nthe text of the treaty . . . , [o]ther general rules of construction may be brought to\nbear on difficult or ambiguous passages\xe2\x80\x9d) (internal quotation marks and citations\nomitted); Vienna Convention on the Law of Treaties art. 32, opened for signature\n\n19\nAs we noted, Article 4 extends \xe2\x80\x9cprotected person\xe2\x80\x9d status to all \xe2\x80\x9cthose who, at a given moment\nand in any manner whatsoever, find themselves . . . in the hands of [an] . . . Occupying Power of which\nthey are not nationals\xe2\x80\x9d (emphasis added). The prepositional phrase \xe2\x80\x9cat a given moment and in any\nmanner whatsoever\xe2\x80\x9d modifies \xe2\x80\x9cfind themselves\xe2\x80\x9d and therefore has no application or relevance to\npersons who do not \xe2\x80\x9cfind themselves\xe2\x80\x9d in the hands of an Occupying Power. Thus, the meaning of \xe2\x80\x9cat a\ngiven moment and in any manner whatsoever\xe2\x80\x9d does not inform or expand, but instead depends upon\nand is limited by, \xe2\x80\x9cfind themselves.\xe2\x80\x9d Accordingly, we do not believe this prepositional phrase provides\nmeaningful guidance in choosing between the broad and narrow readings of \xe2\x80\x9cfind themselves.\xe2\x80\x9d\n20\nTo be sure, common article 3 of GC4 contemplates that a State and non-State actors can engage\nin an armed conflict \xe2\x80\x9cnot of an international character\xe2\x80\x9d that occurs \xe2\x80\x9cin the territory of one of the High\nContracting Parties.\xe2\x80\x9d See Geneva Conventions I\xe2\x80\x93IV, art. 3. But common article 3 confirms that there\nwas no contemplation of non-State terrorist organizations carrying on a global war. It establishes\nminimal protections of humane treatment for persons involved in conflicts purely internal to a State,\nsuch as civil wars and related domestic insurgency movements. See Bybee Memorandum, supra note 5,\nat 10. The GC4 drafters agreed to common article 3 after a lengthy debate that focused on concerns\nabout the implications of conferring even minimal legal protections on non-State groups in a purely\ndomestic context. See, e.g., 2B Final Record at 325 (Soviet delegate Mr. Morosov) (\xe2\x80\x9cNo other issue has\ngiven rise to such a long discussion and to such a detailed and exhaustive study as the question of the\nextension of the Convention to war victims of conflicts not of an international character.\xe2\x80\x9d). The creation\nof such protections\xe2\x80\x94which fall far short of those conferred on \xe2\x80\x9cprotected persons\xe2\x80\x9d by article 4\xe2\x80\x94\n\xe2\x80\x9cmark[ed] a new step forward,\xe2\x80\x9d and represented \xe2\x80\x9can almost unhoped-for extension\xe2\x80\x9d of international law\nat the time. See ICRC Commentary on GC4, supra note 4, at 26. This limited extension, after elaborate\ndiscussion, of minimal protections for non-State actors in purely internal armed conflict further\nconfirms that the drafters of GC4 did not contemplate the possibility of full \xe2\x80\x9cprotected person\xe2\x80\x9d status\nfor members of a non-State actor terrorist organization engaged in transnational armed conflict.\n\n52\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\nMay 23, 1969, 1155 U.N.T.S. 331, 340 (\xe2\x80\x9cRecourse may be had to supplementary\nmeans of interpretation . . . to determine the meaning when [textual] interpretation\naccording to article 31 . . . leaves the meaning ambiguous or obscure . . . .\xe2\x80\x9d).21\nResort to extrinsic sources is especially appropriate where, as here, ambiguity\nresults from changed or unforeseen circumstances. In such instances, \xe2\x80\x9cit is our\nresponsibility to give the specific words of the treaty a meaning consistent with the\nshared expectations of the contracting parties.\xe2\x80\x9d El Al Israel Airlines, Ltd. v. Tsui\nYuan Tseng, 525 U.S. 155, 167 (1999) (quoting Air France v. Saks, 470 U.S. 392,\n399 (1985)) (emphasis added). See also Rocca v. Thompson, 223 U.S. 317, 331\xe2\x80\x9332\n(1912) (observing that treaties \xe2\x80\x9c[l]ike other contracts . . . are to be read in the light\nof the conditions and circumstances existing at the time they were entered into\nwith a view to effecting the objects and purposes of the States thereby contracting\xe2\x80\x9d).\nB. The Benefits-Burdens Principle of the Fourth Geneva Convention\nWe first consider article 4\xe2\x80\x99s textual ambiguity in light of the objects and purposes of the Geneva Conventions, including GC4. It is well established, both in\nUnited States and international practice, that interpretations of ambiguous treaty\ntext should, if possible, accord with such purposes. See Rocca, 223 U.S. at 331\xe2\x80\x9332;\nVienna Convention art. 31.1, 1155 U.N.T.S. at 340 (\xe2\x80\x9cA treaty shall be interpreted\nin good faith in accordance with the ordinary meaning to be given to the terms of\nthe treaty in their context and in the light of its object and purpose.\xe2\x80\x9d) (emphasis\nadded). One object and purpose of the Geneva Conventions is to exclude from\ncoverage those who engage in transnational armed conflict, even in occupied\nterritory, if their representatives have rejected the burdens of the Geneva Convention system.\nThis \xe2\x80\x9cbenefits-burdens\xe2\x80\x9d principle finds several expressions in the text of GC4.\nFor example, article 2(1) of GC4 limits the application of the Convention to armed\nconflicts between High Contracting Parties. Common article 2(1) expresses the\nprinciple that entities engaged in armed conflict do not receive Geneva Convention\nprotections unless they also accept the Conventions\xe2\x80\x99 burdens. Article 2(3)\nsimilarly reflects a benefits-burdens constraint. It provides that if a \xe2\x80\x9cPower[] in\nconflict\xe2\x80\x9d that is not a signatory to GC4 \xe2\x80\x9caccepts and applies\xe2\x80\x9d GC4, then any\nsignatory State involved in the conflict with that power will be \xe2\x80\x9cbound by the\nConvention\xe2\x80\x9d with regard to that \xe2\x80\x9cPower.\xe2\x80\x9d Article 2(3) further states that if one of\nthe \xe2\x80\x9cPowers in conflict\xe2\x80\x9d is a non-party to GC4, the \xe2\x80\x9cPowers who are parties thereto\n\n21\nAlthough the United States is not a signatory to the Vienna Convention, it has recognized that\narticles 31 and 32 of the Vienna Convention reflect international practice. See Bybee Memorandum,\nsupra note 5, at 23. Courts also frequently rely on articles 31 and 32 to interpret treaties. See, e.g.,\nAquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1296 n.40 (11th Cir. 1999);\nKreimerman v. Casa Veerkamp S.A. de C.V., 22 F.3d 634, 638 n.9 (5th Cir. 1994).\n\n53\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nshall remain bound by it in their mutual relations.\xe2\x80\x9d This provision contemplates\nthat even when signatories and non-signatories fight together, signatories owe\nduties under GC4 only to other signatories, or to those \xe2\x80\x9cPowers\xe2\x80\x9d that have agreed\nto accept and apply the Convention. Common article 2(3) makes clear that, though\nthe drafters of the Geneva Conventions did not insist on the formalities of treaty\nsignature and ratification, they did insist that a warring \xe2\x80\x9cParty\xe2\x80\x9d must accept the\nburdens of the Conventions, even if somewhat informally, in order to receive their\nbenefits.\nThe benefits-burdens principle also finds expression in article 4(2), which\nprovides: \xe2\x80\x9cNationals of a State which is not bound by the Convention are not\nprotected by it.\xe2\x80\x9d The ICRC\xe2\x80\x99s official Commentary states that article 4(2)\xe2\x80\x99s\nexception to the definition of \xe2\x80\x9cprotected person\xe2\x80\x9d in article 4(1) is a \xe2\x80\x9ctruism\xe2\x80\x9d and an\n\xe2\x80\x9cunnecessary addition\xe2\x80\x9d that follows naturally from article 2(1) even in the absence\nof article 4(2). ICRC Commentary on GC4, supra note 4, at 48. Whether or not\nthis is true, article 4(2) makes this much clear: persons in occupied territory,\nincluding those who commit hostile acts there, are not \xe2\x80\x9cprotected persons\xe2\x80\x9d under\nGC4 if the State that represents them has not formally accepted the Convention\xe2\x80\x99s\nburdens.\nThis principle stands out with clarity against the background of GC4\xe2\x80\x99s otherwise very broad reach. Recall that GPW limits POW status, and thus the benefits\nof GPW, to the lawful combatants of armed forces and related forces of States that\nare parties to the conflict and have ratified GPW, and thus that have accepted\nobligations regarding the conduct of armed conflict. By contrast, GC4 casts its net\nmuch wider, extending \xe2\x80\x9cprotected person\xe2\x80\x9d status in occupied territory to persons\nwho have no connection to the armed conflict (such as nationals of neutral States)\nand thus who have no obligations related to the conflict. Even in the context of\nGC4\xe2\x80\x99s expansive application, however, the drafters were careful to exclude from\n\xe2\x80\x9cprotected person\xe2\x80\x9d status individuals from States that had not signed the Convention or otherwise accepted and applied its provisions in the relevant conflict.\nIn sum, articles 2 and 4 reflect the Geneva Conventions\xe2\x80\x99 principle that persons\nwho engage in transnational armed conflicts do not receive the benefits of the\nConventions, in occupied territory or otherwise, if their representatives refuse to\naccept their burdens. GC4 usually expresses this benefits-burdens principle in\nterms of nationals of States that have ratified the Convention. Specifically, GC4\ngenerally provides that nationals of States that fail to assume the burdens of GC4\ndo not receive its benefits, even in occupied territory. This formulation reflects the\ndrafters\xe2\x80\x99 assumptions that States would be the only entities capable of engaging in\na transnational armed conflict, and that denying \xe2\x80\x9cprotected person\xe2\x80\x9d status to\nnationals of non-compliant States would adequately ensure that all warring entities\naccepted GC4\xe2\x80\x99s burdens before receiving its benefits.\nBut the assumption that persons would only be identified with States\xe2\x80\x94because\nStates are the only entities that take part in transnational conflicts\xe2\x80\x94does not hold\ntrue in the unprecedented context of a global armed conflict in which the armed\n\n54\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\nforces of a non-State terrorist organization attack a State in territory occupied in\nconnection with an armed conflict between signatory States. Adherence to article\n4\xe2\x80\x99s State-centric presuppositions in this context would violate GC4\xe2\x80\x99s fundamental\nprinciple that warring entities cannot receive the benefits of GC4 if they reject\nGeneva Convention duties. Al Qaeda has pointedly declined to accept or apply\nGC4 or any other principle of the law of armed conflict. If nationals of a rogue\nState that refused to be bound by the Geneva Conventions engaged in unlawful\nbelligerency on behalf of that rogue State, they would be denied \xe2\x80\x9cprotected\nperson\xe2\x80\x9d status everywhere in the world, including occupied Iraq. See GC4 art. 4(2)\n(\xe2\x80\x9cNationals of a State which is not bound by the Convention are not protected by\nit.\xe2\x80\x9d). It would run sharply contrary to the object and purpose of GC4 to give al\nQaeda operatives a more elevated status than such individuals. The conferral of\nsuch elevated status would allow a non-State terrorist organization to circumvent\nGC4\xe2\x80\x99s benefits-burdens principle by using territory occupied in a war between two\nsignatory States as the most advantageous place to carry on their conflict against\nthe occupying power. The sounder approach is to adhere to the benefits-burdens\nprinciple embodied in articles 2 and 4\xe2\x80\x94a principle that induces compliance by\nlinking the benefits of the Conventions to acceptance of their obligations.22 See\nBybee Memorandum, supra note 5, at 10.\nOur recourse to fundamental principles to address an ambiguity in article 4 is\nnot unusual. In the context of the law of armed conflict, interpreters faced with\nchanged or unexpected circumstances have not hesitated to resort to a treaty\xe2\x80\x99s\nfundamental principles to avoid a non-contextual reading of a treaty term that,\nwrenched from its original context, might lead to a conclusion that does violence\nto the treaty\xe2\x80\x99s object and purpose. And they have done so even when construing\ntreaty text far less ambiguous than article 4.\nFor example, when the Allied Powers occupied Germany and Japan at the end\nof the Second World War, they did not apply rules of belligerent occupation set\nforth in the Hague Regulations\xe2\x80\x94and in particular the duty to \xe2\x80\x9crespect[], unless\nabsolutely prevented, the laws in force in the country,\xe2\x80\x9d see Hague Regulations art.\n43\xe2\x80\x94that were premised on fundamental assumptions that did not apply in those\ncontexts.23 Similarly, following the end of active hostilities in the Korean War, the\n22\nThis principle would apply even if the entity that does not accept the burdens of the Convention\nis or becomes actively intertwined in the armed conflict between the signatory States. See GC4 art. 2(3)\n(providing that when a \xe2\x80\x9cPower[] in conflict\xe2\x80\x9d is not a Party, the Powers who are parties remain bound by\nit only in \xe2\x80\x9ctheir mutual relations\xe2\x80\x9d); id. art. 4(2) (providing that \xe2\x80\x9cNationals of a State which is not bound\nby the Convention are not protected by it\xe2\x80\x9d).\n23\nSee, e.g., R.Y. Jennings, Government in Commission, 23 Brit. Y.B. Int\xe2\x80\x99l L. 112, 135\xe2\x80\x9336 (1946)\n(noting that the assumptions of the Hague Regulations\xe2\x80\x94concerning the need to protect the sovereignty\nof the legitimate government of the occupied territory and the inhabitants of the occupied territory from\nbeing exploited for the prosecution of the occupant\xe2\x80\x99s war\xe2\x80\x94were not served by application of the\nRegulations to occupied Germany, and concluding that \xe2\x80\x9cthe whole raison d\xe2\x80\x99\xc3\xaatre of the law of\nbelligerent occupation is absent in the circumstances of the Allied occupation of Germany, and to\nattempt to apply it would be a manifest anachronism\xe2\x80\x9d); W. Friedmann, The Allied Military Government\n\n55\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nUnited Nations Powers declined to repatriate POWs who feared to return to their\ncountries, even though article 118 of GPW states that POWs \xe2\x80\x9cshall be released and\nrepatriated without delay after the cessation of active hostilities,\xe2\x80\x9d and even though\narticle 7 of GPW makes the right of repatriation non-waivable. The United States\nand others supported this conclusion based on the fundamental purposes underlying the Convention.24 In 1968, the Privy Council declined to extend POW status\nunder GPW to nationals of the State that captured them even though article 4 of\nGPW contains no such express exception.25 This conclusion, which is generally\napproved by commentators,26 was premised on the view that the fundamental\npurpose of the Convention was \xe2\x80\x9cfor the protection of the members of the national\nforces of each against the other.\xe2\x80\x9d27\nFinally, the International Criminal Tribunal for the Former Yugoslavia (\xe2\x80\x9cICTY\xe2\x80\x9d)\nhas twice read GC4 article 4\xe2\x80\x99s definition of \xe2\x80\x9cprotected persons\xe2\x80\x9d to include within the\nclass of \xe2\x80\x9cprotected persons\xe2\x80\x9d nationals of the party to the conflict in whose hands they\nare found.28 The ICTY tribunals reached this conclusion, despite article 4\xe2\x80\x99s limitation\nof \xe2\x80\x9cprotected person\xe2\x80\x9d status to those who find themselves in the hands of a power\n\xe2\x80\x9cof which they are not nationals,\xe2\x80\x9d GC4 art. 4(1), on the basis of GC4\xe2\x80\x99s fundamental\npurposes\xe2\x80\x94a source of interpretive guidance, the ICTY tribunals explained, that was\nappropriate to look to because the framers of GC4 never could have contemplated\nthe scope or significance of \xe2\x80\x9cpresent-day inter-ethnic conflicts.\xe2\x80\x9d29 In these cases, the\nof Germany 67 (1947) (\xe2\x80\x9cIt is not . . . surprising that International Law . . . should not be fully equipped\nto deal with an entirely unprecedented situation\xe2\x80\x9d following post-World War II occupations.); Roberts,\nsupra note 4, at 269\xe2\x80\x9370 (1984) (citing Jennings and Friedman approvingly); Glahn, supra note 14, at\n281 (Hague Regulations \xe2\x80\x9clost their applicability to the Allied occupation of Germany\xe2\x80\x9d).\n24\nSee, e.g., Dep\xe2\x80\x99t of State, Memorandum Re: Legal Considerations Underlying the Position of the\nUnited Nations Command Regarding the Issue of Forced Repatriation of Prisoners of War (Oct. 24,\n1952); Howard S. Levie, Prisoners of War in International Armed Conflict, 59 Int\xe2\x80\x99l L. Studies 424\n(Naval War College 1978).\n25\nPublic Prosecutor v. Oie Hee Koi, [1968] 2 W.L.R. 715, 727 (P.C.) (concluding that GPW \xe2\x80\x9cdoes\nnot extend the protection given to prisoners of war to nationals of the detaining power\xe2\x80\x9d).\n26\nSee Ian Brownlie, Law of War\xe2\x80\x94Geneva Convention Relative to the Treatment of Prisoners of\nWar, Articles 4 and 5\xe2\x80\x94Burden of Proof on Issue of Protected Status\xe2\x80\x94Status of Nationals of a Person\nOwing \xe2\x80\x98Allegiance\xe2\x80\x99 to the Detaining Power, 43 Brit. Y.B. Int\xe2\x80\x99l L. 234, 235\xe2\x80\x9337 (1968\xe2\x80\x931969); R.R.\nBaxter, Notes and Comments, The Privy Council on the Qualifications of Belligerents, 63 Am. J. Int\xe2\x80\x99l\nL. 290, 291 (1969); Draper, supra note 17, at 193\xe2\x80\x9394 n.3.\n27\nPublic Prosecutor v. Oie Hee Koi, [1968] 2 W.L.R. 715, 726 (P.C.).\n28\nProsecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Chamber Judgement \xc2\xb6\xc2\xb6 151\xe2\x80\x9352 (Mar.\n24, 2000); Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgement \xc2\xb6\xc2\xb6 163\xe2\x80\x9370 (July 15,\n1999). Cf. Flores v. S. Peru Copper Corp., 343 F.3d 140, 169 (2d Cir. 2003) (noting that although the\nactions of the ICTY multinational tribunal may have some persuasive value, it is not \xe2\x80\x9cempowered to\ncreate binding norms or customary international law\xe2\x80\x9d); Statute of the International Criminal Court for\nFormer Yugoslavia (as amended through May 19, 2003) (limiting ICTY\xe2\x80\x99s charter to prosecutions under\ncurrent law).\n29\nProsecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Chamber Judgement \xc2\xb6\xc2\xb6 151\xe2\x80\x9352 (Mar.\n24, 2000); see also Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgement \xc2\xb6\xc2\xb6 163\xe2\x80\x9370\n(July 15, 1999).\n\n56\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\nICTY tribunals read behind article 4\xe2\x80\x99s assumption that persons should be identified\nwith the State of their nationality for purposes of article 4 \xe2\x80\x9cprotected person\xe2\x80\x9d status\nwhen the context in which GC4 was being applied did not bear out article 4\xe2\x80\x99s Statecentric assumptions. In Tadic, for example, an ICTY Appeals Chamber noted that\nGC4 was drafted when \xe2\x80\x9cwars were primarily between well-established States,\xe2\x80\x9d and\nconcluded, based on GC4\xe2\x80\x99s \xe2\x80\x9cobject and purpose,\xe2\x80\x9d that its State-centric terms should\nnot be applied woodenly in unanticipated \xe2\x80\x9cmodern inter-ethnic armed conflicts such\nas that in the former Yugoslavia.\xe2\x80\x9d30 Even more relevant for present purposes, the\nICTY Court noted that in such changed circumstances, \xe2\x80\x9cethnicity may become\ndeterminative of national allegiance,\xe2\x80\x9d and that \xe2\x80\x9c[u]nder these conditions, the requirement of nationality is even less adequate to define protected persons.\xe2\x80\x9d31 In short,\nTadic looked behind GC4 art. 4\xe2\x80\x99s nationality criterion to find a criterion that better\nserved GC4\xe2\x80\x99s object and purpose when applied to unforeseen circumstances.\nIn determining whether al Qaeda operatives warrant \xe2\x80\x9cprotected person\xe2\x80\x9d status\nin occupied Iraq, it is at least as appropriate as in the cases described above, if not\nmore so, to look to the fundamental principles underlying GC4 to determine how a\ngenuine textual ambiguity in article 4 should be resolved in a context wholly\noutside the contemplation of GC4\xe2\x80\x99s drafters. Our recourse to these fundamental\nprinciples supports the conclusion that, with the caveat addressed in Part III.D\nbelow, al Qaeda operatives captured in occupied Iraq lack \xe2\x80\x9cprotected person\xe2\x80\x9d\nstatus under GC4.\nC. The Focus of the Fourth Geneva Convention on Protecting\nCitizens and Permanent Residents\nWe next consider the ambiguity in article 4 in light of the legal landscape\nagainst which GC4 was negotiated, as well as the negotiation record itself. See\nWashington v. Wash. State Commercial Passenger Fishing Vessel Ass\xe2\x80\x99n, 443 U.S.\n658, 665\xe2\x80\x9369 (1979) (emphasizing the historical background against which the\ntreaty at issue was signed); Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134\n(1989) (stating that a treaty\xe2\x80\x99s negotiating record \xe2\x80\x9cmay of course be consulted to\nelucidate a text that is ambiguous\xe2\x80\x9d); Vienna Convention art. 32, 1155 U.N.T.S. at\n340 (providing that the \xe2\x80\x9cpreparatory work of the treaty\xe2\x80\x9d may be consulted to\nresolve ambiguities in a treaty\xe2\x80\x99s text). These sources suggest that the protections\nthat GC4 provides for some unlawful combatants in occupied territory were\n30\n\nProsecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgement \xc2\xb6 166 (July 15, 1999).\nId.; see also Theodor Meron, Editorial Comment, Classification of Armed Conflict in the Former\nYugoslavia: Nicaragua\xe2\x80\x99s Fallout, 92 Am. J. Int\xe2\x80\x99l. L. 236, 239 (1998) (\xe2\x80\x9cEnforcing [article 4\xe2\x80\x99s nationality-based criteria for \xe2\x80\x98protected person\xe2\x80\x99 status] literally in . . . conflicts involving the disintegration of\na state or political entity and the resulting struggle between peoples and ethnic groups, would be the\nheight of legalism. . . . In many contemporary conflicts, the disintegration of states and the establishment of new ones make nationality too messy a concept on which to base the application of international humanitarian law.\xe2\x80\x9d).\n31\n\n57\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nintended primarily to protect citizens and permanent residents who participate in\npopular resistance movements\xe2\x80\x94persons who as a general matter are not similarly\nsituated to members of an international terrorist organization engaged in global\narmed conflict against the occupying powers.\nPre-GC4 international law focused on the occupying power\xe2\x80\x99s duty to protect the\noccupied territory\xe2\x80\x99s citizens and inhabitants, as distinct from other groups. The\npreamble to the 1907 Hague Regulations (which GC4 expressly preserves, see\nGC4 art. 154) declared that \xe2\x80\x9cthe inhabitants\xe2\x80\x9d remained under the protection of the\n\xe2\x80\x9cprinciples of the law of nations as they result from the usages established among\ncivilized peoples, from the laws of humanity, and the dictates of the public\nconscience.\xe2\x80\x9d Hague Regulations pmbl. Subsequent international law retained this\ngeneral focus. For example, the London Charter for the Nuremberg Trials\nconsidered \xe2\x80\x9cdeportation\xe2\x80\x9d to be a war crime, and legal actions under that instrument\xe2\x80\x94including judgments of the International Military Tribunal at Nuremberg\xe2\x80\x94\nwere used to punish actions directed at the occupied country\xe2\x80\x99s citizens and\ninhabitants.32\nGC4 derives from this tradition. Article 65 of GC4 specifies that penal provisions enacted by the Occupying Power \xe2\x80\x9cshall not come into force before they have\nbeen published and brought to the knowledge of the inhabitants in their own\nlanguage.\xe2\x80\x9d In like manner, GC4 requires the Occupying Power to ensure the food\nand medical supplies \xe2\x80\x9cof the population\xe2\x80\x9d (art. 55), to ensure relief schemes if \xe2\x80\x9cthe\nwhole or part of the population of an occupied territory is inadequately supplied\xe2\x80\x9d\n(art. 59), and to \xe2\x80\x9cfacilitate the proper working of all institutions devoted to the care\nand education of children\xe2\x80\x9d (art. 50). Each of these provisions suggests obligations\nfocused on persons who constitute the permanent residents of the area.\nA similar focus underlies article 5\xe2\x80\x99s express protection for \xe2\x80\x9cspies,\xe2\x80\x9d \xe2\x80\x9csaboteurs,\xe2\x80\x9d\nand \xe2\x80\x9cperson[s] under definite suspicion of activity hostile to the security of the\nOccupying Power.\xe2\x80\x9d In the travaux pr\xc3\xa9paratoires, the GC4 drafters assumed that\nthe protections they conferred on certain unlawful combatants were for local\ncitizens or permanent residents who engaged in activities hostile to the occupying\npower. For example, in describing article 5, the Committee III Report said: \xe2\x80\x9cIn\noccupied territory, the fact that a national of the Occupied Power harbours\nresentment against the Occupying Power is likewise insufficient [to deny rights of\ncommunication under Article 5].\xe2\x80\x9d 2A Final Record at 815. Similarly, the Soviet\n32\nThe focus on protecting citizens and inhabitants was evident, for example, in the definitions of\nthe crime of \xe2\x80\x9cdeporting civilians\xe2\x80\x9d that emerged from United States v. Milch, 2 Trials of War Criminals\nBefore the Nuremberg Military Tribunals 353 (1946\xe2\x80\x931949) (trial of Field Marshal Erhard Milch). The\nindictment in Milch defined the crime of deportation to involve \xe2\x80\x9ccitizens,\xe2\x80\x9d the prosecutor described the\ncrime to involve \xe2\x80\x9cpeople who had been uprooted from their homes in occupied territories,\xe2\x80\x9d the threejudge tribunal convicted the defendant for the crime as charged, Judge Musmanno\xe2\x80\x99s concurring opinion\ndescribed the crime as extending to the occupied territory\xe2\x80\x99s \xe2\x80\x9cinhabitants,\xe2\x80\x9d and the concurring opinion of\nJudge Phillips described it as extending to the \xe2\x80\x9cpopulation\xe2\x80\x9d of occupied territory. Id. at 691\xe2\x80\x9393, 790,\n879, 866.\n\n58\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\ndelegate assumed that protected unlawful combatants in occupied territory were\n\xe2\x80\x9ccitizens\xe2\x80\x9d of the occupied country. See 2B Final Record at 379 (\xe2\x80\x9cI would like to\nask the originators of article 3A, and those who light-heartedly support it, whether\nthere is in the whole world a country whose citizens would be loyal to the Occupying Power.\xe2\x80\x9d).33\nThe protections for POWs in occupied territory conferred by GPW confirm the\nGeneva Conventions\xe2\x80\x99 focus on the citizens and permanent residents of occupied\nterritory, as opposed to international terrorists. GPW extended POW status for the\nfirst time to \xe2\x80\x9c[m]embers of . . . militias and members of other volunteer corps,\nincluding those of organized resistance movements, belonging to a Party to the\nconflict and operating in or outside their own territory, even if this territory is\noccupied,\xe2\x80\x9d provided that they satisfy the traditional criteria for lawful combatancy.\nGPW art. 4(A)(2) (emphasis added). The drafters of GPW included this provision\nto confer future protections on some (though not all) of the actions of resistance\nmovements like those that fought the Nazis in occupied territory in World War II.34\nIn article 4(A)(2)\xe2\x80\x99s negotiating history, the delegates understood and assumed that\nthe militia and volunteer corps entitled to protections in occupied territory were\nindigenous resistance movements comprised of citizens, or at the very least\npermanent residents, of the occupied countries.35 And in the debate over the GPW\nConvention, numerous participants expressed sympathy for combatants fighting\nthe occupying power for reasons of \xe2\x80\x9cpatriotism\xe2\x80\x9d\xe2\x80\x94a term that can only be assumed\n\n33\nCf. 2B Final Record at 379 (Mr. Morosov (Soviet Union)) (\xe2\x80\x9cNor has this stipulation any bearing\nwhatsoever on members of the civilian population of occupied territories suspected of activity hostile\nto the State\xe2\x80\x9d) (emphasis added); id. (\xe2\x80\x9cWhat has been said about alien nationals of an enemy Power who\nmay be in the territory of a belligerent is even more applicable to the civilian population of occupied\nterritories.\xe2\x80\x9d) (emphasis added).\n34\nSee 2A Final Record at 562 (Committee Report) (describing the protections accorded by article\n4A(2) as \xe2\x80\x9can important innovation . . . which has become necessary as a result of the experience of the\nSecond World War\xe2\x80\x9d); The Geneva Conventions of 12 August 1949, Commentary, III Geneva Convention Relative to the Treatment of Prisoners of War 58 (Jean S. Pictet ed., 1960) (\xe2\x80\x9c[T]he term \xe2\x80\x98resistance\xe2\x80\x99 . . . constitutes a clear reference to the events of the Second World War and to the resistance\nmovements which were active during that conflict.\xe2\x80\x9d); Levie, supra note 24, at 39 (\xe2\x80\x9cDuring World War\nII so-called resistance movements sprang up or were created within the territory of most of the\ncountries occupied by an enemy, whether the occupation was partial or total. It was with respect to the\nstatus of members of these types of resistance movements that the 1949 Diplomatic Conference was\nattempting to make provision.\xe2\x80\x9d) (emphasis added).\n35\nSee, e.g., 2A Final Record at 240 (Mr. Cohn (Denmark)) (\xe2\x80\x9cCivilians who took up arms in good\nfaith for the defence of their country against an invader should . . . have the benefit of the protection\naccorded to prisoners of war\xe2\x80\x9d) (emphasis added); id. at 241 (Mr. Larmale (France)) (\xe2\x80\x9crecall[ing] the\ndiscussions on the subject of the importance of resistance movements which had taken place at the\nConference of Government Experts\xe2\x80\x9d) (emphasis added); id. at 242 (Mr. Pesmazoglou (Greece)) (urging\nthat the term \xe2\x80\x9cmember of a resistance movement\xe2\x80\x9d be included in article 4(A) and not the term\n\xe2\x80\x9cpartisan\xe2\x80\x9d since \xe2\x80\x9cit was a question of national, and not political, movements\xe2\x80\x9d) (emphasis added); id. at\n426 (General Slavin (Soviet Union)) (\xe2\x80\x9cCivilians who took up arms in defence of the liberty of their\ncountry should be entitled to the same protection as members of armed forces\xe2\x80\x9d) (emphasis added).\n\n59\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nto refer to citizens.36 In short, both GPW and GC4 contemplate protections in\noccupied territory primarily for local citizens or permanent residents. When such\npersons fight on behalf of movements that respect the laws and customs of war,\nthey receive POW status, see GPW arts. 4(A)(2); 4(A)(6); those who do not respect the laws and customs of war receive \xe2\x80\x9cprotected person\xe2\x80\x9d status under GC4.\nIn sum, GC4\xe2\x80\x99s drafting history, read in context, shows that GC4 was designed\nto confer \xe2\x80\x9cprotected person\xe2\x80\x9d status primarily on citizens or permanent residents of\noccupied territory, whether unlawful combatants or not, but not on operatives of an\ninternational terrorist organization who are in occupied territory as part of a global\narmed conflict. It is natural to view citizens and permanent residents of occupied\nterritory as persons who \xe2\x80\x9cfind themselves\xe2\x80\x9d in the hands of the Occupying Power,\nand the resistance activities of citizens and permanent residents are most clearly\nwithin the contemplation of the Geneva Conventions.37 By contrast, with a caveat\nnoted directly below, members of an international terrorist organization in\noccupied territory to attack the occupying power are clearly outside the core\nconcern of GC4 and are difficult to characterize as persons who \xe2\x80\x9cfind themselves\xe2\x80\x9d\nin occupied territory, especially since the conferral on them of \xe2\x80\x9cprotected person\xe2\x80\x9d\nstatus would create tension with the Geneva Conventions\xe2\x80\x99 fundamental principle\nthat warring entities must accept the Conventions\xe2\x80\x99 burdens in order to claim their\nbenefits.\nD. Iraqi al Qaeda Captured in Occupied Iraq\nThe analysis thus far suggests that the ambiguity in article 4 should be resolved\nby excluding al Qaeda terrorist operatives found in occupied Iraq from \xe2\x80\x9cprotected\nperson\xe2\x80\x9d status. However, there is a sub-category of al Qaeda operatives\xe2\x80\x94those\nwho are Iraqi nationals or permanent residents\xe2\x80\x94for which the analysis differs.\nUnlike non-Iraqi terrorist operatives, citizens and permanent residents of Iraq\ncould be said to \xe2\x80\x9cfind themselves\xe2\x80\x9d there even under the narrow reading of article 4.\nSuch persons\xe2\x80\x99 presence in occupied Iraq could be attributed as much to their status\n\n36\nSee, e.g., 2A Final Record at 242 (General Sklyarov (Soviet Union)) (describing the militia and\nvolunteer corps as \xe2\x80\x9corganizations which had out of patriotism taken up arms to defend the honour and\nthe independence of their country\xe2\x80\x9d) (emphasis added); id. at 422 (Mr. Gardner (England)) (characterizing guerilla forces as those that \xe2\x80\x9cbegan by being groups of patriots and gradually established\ndiscipline\xe2\x80\x9d) (emphasis added).\n37\nWe note that stateless noncombatants might also be among the residents that the GC4 framers\nmeant to include within \xe2\x80\x9cprotected persons,\xe2\x80\x9d at least when they \xe2\x80\x9cfind themselves\xe2\x80\x9d in occupied territory\nat the time of occupation or as a result of having fled there after occupation as refugees of war. See,\ne.g., 2A Final Record at 621 (Mr. Castberg (Norway)) (\xe2\x80\x9cex-German Jews denationalized by the German Government, who found themselves in territories subsequently occupied by the German Army . . .\nshould be able to claim protection under the Convention\xe2\x80\x9d); see also ICRC Commentary on GC4, supra\nnote 4, at 47 (stating that article 4 was drafted to ensure that protections would not be withheld from\nrefugees who \xe2\x80\x9chad fled from their homeland and no longer considered themselves, or were no longer\nconsidered, to be nationals of that country\xe2\x80\x9d).\n\n60\n\n\x0c\xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth Geneva Convention\n\nas citizens or permanent residents who owe that country allegiance as to their\nstatus as agents of an international terrorist organization engaged in global armed\nconflict with the occupying powers. Furthermore, as explained above, the negotiating record makes clear that GC4 was primarily designed to protect citizens and\npermanent residents of occupied territory, including those who commit hostile acts\nagainst the occupying power. \xe2\x80\x9cProtected person\xe2\x80\x9d status under GC4 exists primarily\nfor the benefit of these persons even when they act as unlawful combatants. It is\ntrue that reading article 4 to protect anyone in Iraq who fights on behalf of an\nenemy force that does not assume the burdens of GC4 is in tension with GC4\xe2\x80\x99s\nbenefits-burden principle, described above. But in the context of citizens or\npermanent residents of Iraq, we conclude that the text of article 4 (which is less\nambiguous in this narrow context) and the negotiating record provide more\ncompelling interpretive guidance than the guidance we derive from the benefitburdens principle.\nIV. Conclusion\nWe conclude that the following persons, if captured in occupied Iraq, are not\n\xe2\x80\x9cprotected persons\xe2\x80\x9d within the meaning of GC4 article 4: U.S. nationals, nationals\nof a State not bound by the Convention, nationals of a co-belligerent State, and\noperatives of the al Qaeda terrorist organization who are not Iraqi nationals or\npermanent residents of Iraq.\nJACK L. GOLDSMITH III\nAssistant Attorney General\nOffice of Legal Counsel\n\n61\n\n\x0c'