Parsing Howard Nielson’s Sources: A Thesis Without Support

Image: Committee chairman Sen. Chuck Grassley (R-IA) speaks with ranking member Sen. Dianne Feinstein (D-CA) before the start of a Senate Judiciary Committee hearing on Capitol Hill, July 27, 2017 in Washington, DC. (Drew Angerer/Getty Images)

In anticipation of Howard Nielson’s hearing this week (noticed for January 10th), I have closely reviewed the primary citations provided in support of Nielson’s flawed position on the geographic reach of the Fourth Geneva Convention in the introduction to the memorandum “to the file” he wrote while at the DOJ’s Office of Legal Counsel.  None of these sources provides convincing support for his thesis. Besides a few snippets of scholarship taken out of context, other passages within the works cited reinforce my point about the essentially humanitarian nature of the Fourth Geneva Convention and its broad scope of protection to civilians who, at any time and anywhere, find themselves “in the hands of” the enemy during an international armed conflict.

As I have previously argued, Nielson’s memorandum also reveals a complete misunderstanding of the origins, functioning, and object and purpose of the law of armed conflict.  This is where the fact that Nielson’s memo was written “to the file” becomes significant. Normally, legal research within the U.S. government that meaningfully touches upon international law or the interpretation of treaties gets cleared through an interagency process that includes the lawyers of the State Department’s Legal Adviser’s Office (“L”)—the government’s experts on international law.  I understand on good authority that this memorandum was not formally shared with “L” at the time—and that it would not have survived any clearance process if it had been.  This perhaps explains the curious fact that the memo was written “to the file” in the absence of any live legal question. (The armed conflicts in Afghanistan and Iraq were non-international armed conflicts at the time and so were no longer governed by the Geneva Conventions other than Article 3, common to all four Geneva Conventions, which is dedicated to such conflicts).

Under the first term of Bush Administration, the Office of Legal Counsel—controversially—would draft legal memoranda without submitting them through this customary interagency clearance process; it seems this memo was part of that shiftiness.  When this all later came to light, the State Department lawyers demanded an end to this practice.

Beyond these points of substance, the treatment in the memo of many of these original sources further emphasizes the meta-point of my original Just Security piece – rather than being an effort to provide rigorous, candid, and objective legal advice, the memorandum is actually an exercise in shoddy, results-oriented advocacy poorly masked as legal analysis.

Below, I trot through each of the sources that Nielson cites in his introductory paragraphs and demonstrate how they fail to support his thesis and, in fact, point the other direction. I situate this analysis within a discussion of the history of the Fourth Geneva Convention and the role it plays in the law of armed conflict.

By way of background, the Geneva Conventions were drafted in the wake of World War II.  Prior to this point, the law of war mainly regulated means and methods of warfare and the treatment of combatants, but provided few protections to civilians qua civilians. The most important sources of law at the time were a suite of treaties and declarations promulgated in The Hague at the turn of the 20th century that regulated such war-time phenomena as the use of submarine mines, the opening of hostilities, bombardments by naval forces, etc. In addition, the 1929 Geneva Convention on Prisoners of War provided comprehensive protections for combatants taken prisoner by the enemy.

When it came to civilian protections, besides the ancient customary international law principle of distinction—which requires belligerents to direct military operations to military objectives rather than civilians and civilian objects—what treaty provisions existed were generally limited to situations of formal occupation (as in the Fourth Hague Convention Respecting the Laws and Customs of War on Land and its annexed Regulations). There was no treaty that provided comprehensive protections to civilians who came in contact with the enemy other than during such periods of occupation.  The law-of-war is inherently reactive, and these early treaties were very much creatures of their era—a time when hostilities were generally confined to a “front” located away from civilian areas.  They were not designed to regulate the “total war” occasioned by World War II, which exposed entire civilian populations to the horrors of war and in which civilians regularly came in contact with invading armies well before an occupation could be established.

This was the gap in the law that the Fourth Geneva Convention was designed to fill. Indeed, the U.S. Congressional Record at the time of ratification (cited by Nielson) emphasizes:

The history of war years since the 1929 conventions were formulated is a tragic testimonial to their value and to the importance of improving their provisions in ways dictated by the cold and cruel logic of belligerent experience. In the same way, the mistreatment of American civilians abroad in World War II has demonstrated that such civilians, particularly if they are interned, need the general benefits of the protection secured to prisoners of war.

The Fourth Geneva Convention thus marked an important and long-overdue development in the law of war.

The key innovation in the Geneva Conventions is the concept of the “protected person.” Each of the Geneva Conventions protects a different class of persons; the Fourth Geneva Convention is devoted primarily to protecting persons who

at a given moment and in any manner whatsoever, find themselves, in the case of a conflict or occupation, in the hands of a Party to the conflict or Occupying power of which they are not nationals” (Article 4).

Indeed, elsewhere in the Congressional record, Senator William Knowland (R-Calif.) remarked:

I hope that it will never be necessary to invoke the provisions of the pending four conventions which relate to the protection of war victims. But in the event there should ever be another war, it is only commonsense to take action which will make available to us some devices to protect those of our Armed Forces and those American civilians who may fall into the hands of the enemy. That is the purpose of these conventions—to give nations at war some basis for the treatment and protection of the sick and wounded, for the protection of prisoners of war, and for the protection of civilians in the hands of the enemy.

Nielson cites Jean Pictet’s official commentary to the Geneva Conventions for the proposition that “there are two main classes of protected person: (1) enemy nationals within the national territory of each of the Parties to the conflict and (2) the whole population of occupied territories (excluding nationals of the Occupying Power).”  It is of course, true that the treaty contains provisions dedicated to those two class of civilians. Indeed, the Fourth Geneva Convention built upon, and supplemented, the rules on occupation contained within the Hague Convention (Part III, Section III). However, other sections of the treaties apply to civilians more broadly.

As explained by another article cited by Nielson and written by the late Frits Kalshoven, certain portions of the Fourth Geneva Convention (Part III) apply only to civilians who meet the definition of “protected persons” in Article 4 (reproduced above). Other provisions, Parts I (“General Provisions”) and II (“General Protection of Populations Against Certain Consequences of War”), apply more broadly.  Indeed, Part II’s articles

cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war (Article 13).

Within Part III, which concerns the “Status and Treatment of Protected Persons,” the treaty first sets out basic protections for all protected persons (Section I), including the imperative of humane treatment (Article 27), and the prohibitions on coercion (Article 31), torture (Article 32), and collective punishments (Article 33).  It then goes on to set forth special rules governing two classes of protected persons: (1) Aliens in the territory of a party to the conflict (Section II) and (2) civilians within occupied territory (Section III).  It is these latter provisions that apply to the High Contracting Party’s own territory or territory under occupation.  As such, they concern the type of obligations that could only be logically effectuated on territory under a sovereign’s control (such as regulating labor, internment, the receipt of humanitarian relief, and repatriation). By focusing in on these two sub-parts within the treaty, Nielson completely disregards other sections that apply more broadly.

If Nielson had been true to Pictet’s commentary, he would made note of these passages, which reinforce how broadly the concept of “civilian” is to be applied:

The definition [of civilian] has been put in a negative form; as it is intended to cover anyone who is ‘not’ a national of the Party to the conflict or Occupying Power in whose hands he is. The Convention thus remains faithful to a recognized principle of international law: it does not interfere in a State’s relations with its own nationals. … The words “at a given moment and in any manner whatsoever” [in Article 4], were intended to ensure that all situations and cases were covered.

Indeed the Taft memorandum, also cited by Nielson and reproduced here, itself makes reference to background materials prepared by the United States and concerning the reach of what would become the Fourth Geneva Convention. The source cited by Taft notes:

The terrible suffering undergone by the peaceful population during World War II pointed to the need for a treaty which would spell out with particularity the rights and privileges of the populations of occupied areas, civilians who had been interned (who had previously been assimilated in a rather rough and ready way to prisoners of war), and to the peaceful population generally, wherever they might be” (emphasis added).

For context, the passage cited in the Taft memorandum is not about limiting the reach of the Fourth Geneva Convention vis-à-vis different categories of civilians but rather is addressed to the argument that the Fourth Geneva Convention might apply to detainees on Guantanamo. Taft concludes that the treaty does not for a range of reasons. For one, most of these individuals were nationals of countries with which the United States had normal diplomatic relations at the time, so they would fall outside the definition of “protected person.”

Most disingenuous, Nielson cites p. 52 of Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War (International Committee of the Red Cross 2001) for the proposition that the Fourth Geneva Convention “is not designed to protect civilians from the dangers of warfare ‘to which they may be exposed in their own territory.’” And yet, this snippet Nielson puts in single quotes is taken entirely out of context and important explanatory material is deleted.

Here is the full sentence from the book (emphasis added):

In spite of its sweeping title, [GC IV] is neither intended to protect civilians from the dangers of warfare – such as aerial bombardment – to which they may be exposed in their own territory nor does it offer them protection against the acts of their own state of nationality. The protection extends essentially to civilians in the power of the adversary.

What Kalshoven and Zegfeld are saying is that many of the provisions of the Fourth Geneva Convention are activated as soon as civilians are “in the hands of” a party of which they are not nationals; the treaty is not aimed at protecting civilians from all the violence occasioned by war such as “aerial bombardment” (or other lawful or unlawful belligerent conduct occurring around them in a theater of war).

As mentioned above, the Geneva Conventions are concerned primarily (but not exclusively, see Part II of the treaty) with persons who “at a given moment and in any manner whatsoever, find themselves, in the case of a conflict or occupation, in the hands of a Party to the conflict or Occupying power of which they are not nationals.” Other law-of-war treaties—such as the 1907 Hague Conventions’ Regulations and later the Additional Protocol I to the Geneva Conventions—more fully regulate the means and methods of war and contain targeting and use-of-force rules that govern the conduct of hostilities, such as when aerial bombardment is lawful or not. As is well known, the laws of war do not prohibit (or penalize for that matter) all civilian deaths; they only prohibit those civilian deaths that are the result of (among other prohibited conduct): civilians being directly targeted, the use of indiscriminate weaponry (i.e., weapons that cannot distinguish between civilians and combatants), or the launching of an attack when the risk to incidental civilian harm is disproportionate to the military advantage to be gained.

Elsewhere in the book—a comprehensive handbook produced under the aegis of the International Committee of the Red Cross (ICRC)—Kalshoven and Zegfeld demonstrate that it is the Hague Convention of 1907 and Additional Protocol I that protect civilians from direct, indiscriminate and disproportionate attacks, including via aerial bombardment, in contradistinction to the Fourth Geneva Convention, which applies whenever a civilian is “in the power of the adversary” regardless of where this occurs.

Nielson cites another article by Kalshoven for the principle that the Fourth Geneva Convention does not confer “protected person” benefits to “enemy aliens in non-occupied enemy territory.”  It is true that the Convention does not confer protected person benefits to all enemy aliens in non-occupied enemy territory.  If those enemy aliens are, however, “in the hands of” a party to which they are not nationals, then they enjoy certain treaty protections.

I cannot help but note that this is an odd article to cite in this context.  As its title suggests, this article concerns the status of guerilla fighters (in the sense of irregular combatants) under international humanitarian law and, in particular, the circumstances under which they should be given prisoner-of-war status.  Kalshoven explores situations in which such irregular fighters may fall within the protections afforded by the Third Geneva Convention, addressed to prisoners of war, versus the Fourth, which may apply in the event that the Third does not. Elsewhere in the article, Kalshoven avers that guerilla fighters who are not entitled to prisoner-of-war status are not without any protection.  He writes:

While certain of the rules laid down in Convention No. IV can in reason be applied only in the relative calm of the domestic or occupied enemy territory, certain other of those rules—first of all the principle of humane treatment—can equally well find application in the turmoil of the operations zone. The principles and rules of the latter category, it is submitted, are applicable at least by analogy in the situation of non-occupation envisaged here, to all those who, in the words of Article 4, “find themselves, in case of a conflict … in the hands of a Party to the conflict … of which they are not nationals.” To my mind, the strongest argument in favour of this thesis lies precisely in the element of their foreign nationality and, hence, allegiance to the opposite Party from the one which holds them in its power.

Kalshoven also insists that even if a guerilla fighter is not entitled to the full protections of the Fourth Geneva Convention, he would still benefit from common Article 3, which sets forth a set of minimum prohibitions that apply to anyone taking no active part in hostilities. (Article 3, surprisingly and perhaps tellingly, gets no mention in Nielson’s memorandum).

The Baxter snippet Nielson cites is similarly taken out of context. That passage is also devoted to discussing the legal regime governing irregular combatants; he mentions the protections enjoyed by civilians in contradistinction to what irregular combatants must be accorded. When Baxter does turn to the protections afforded to civilians, he focuses not on custodial practices but rather aerial bombardment and the development of rules of distinction, precaution, and proportionality that eventually find expression in Additional Protocol I to the Geneva Conventions.

All told, nothing in the primary sources cited by Nielson in his introduction provides adequate support for the argument he was peddling.

Here are fuller excerpts from the Kalshoven/Zegfeld text in cases readers are interested or want even more context:

Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War (International Committee of the Red Cross 2001)

The law of Geneva serves to provide protection for all those who, as a consequence of an armed conflict, have fallen into the hands of the adversary. The protection envisaged is, hence, not protection against the violence of war itself, but against the arbitrary power which one party acquires in the course of an armed conflict over persons belonging to the other party. … The Fourth Convention protects certain categories of civilians (in addition to those mentioned a moment ago). Article 4 defines the protected persons as ‘those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals’. …

A number of points deserve to be highlighted here. The first is the limited scope of the Civilians Convention. In spite of its sweeping title, it is neither intended to protect civilians from the dangers of warfare – such as aerial bombardment – to which they may be exposed in their own territory nor does it offer them protection against the acts of their own state of nationality. The protection extends essentially to civilians in the power of the adversary. (We shall see hereafter that one Part of the Convention does apply to the whole of the populations of the countries in conflict.) …

The system of protection of the Geneva Conventions rests on the fundamental principle that protected persons must be respected and protected in all circumstances, and must be treated humanely, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. ‘Respect’ and ‘protection’ are complementary notions. ‘Respect’, a passive element, indicates an obligation not to harm, not to expose to suffering and not to kill a protected person; ‘protection’, as the active element, signifies a duty to ward off dangers and prevent harm. The third element involved in the principle, that of ‘humane’ treatment, relates to the attitude which should govern all aspects of the treatment of protected persons; this attitude should aim to ensure to these persons an existence worthy of human beings, in spite of – and with full recognition of – the harsh circumstances of their present situation. (pp. 51-54).

Part III [Status and Treatment of Protected Persons] of the Fourth Convention deals with protected persons in a strict sense: i.e., those civilians who find themselves ‘in the hands of a Party to the conflict or Occupying Power of which they are not nationals’. … The common provisions of Section I [of Part III] deal with respect of fundamental rights of the human person, and of women in particular (specifically prohibiting ‘rape, enforced prostitution, or any form of indecent assault’) (Articles 27), 28); the responsibility of a party to the conflict for the treatment of protected persons in its hands (Article 29); and the right of protected persons to apply to supervisory bodies and relief organisations (Article 30). Prohibited forms of ill-treatment include ‘physical or moral coercion … in particular to obtain information’ (Article 31), as well as ‘any measure of such a character as to cause the physical suffering or extermination of protected persons’. Measures in the latter category include notably ‘murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person’, and ‘any other measures of brutality whether applied by civilian or military agents’ (Article 32). (p. 64).

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).