Archive for
January, 2007

John Yoo, Neo-Medievalist

by Peter Spiro

Opinio Juris Joins Library of Congress Webcapture Program

by Peggy McGuinness

The ICC, Lubanga, and the Tricky Mens Rea of Conscripting Child Soldiers (Updated)

by Kevin Jon Heller

Sweden Opens Second Life Embassy

by Kevin Jon Heller

Law Professor Amicus Briefs

by Roger Alford

International Law Weekend West at Santa Clara

by Roger Alford

Greenburg Presents “Supreme Conflict”

by Roger Alford

The ICTR Enters the Fourth Quarter Down by Two Touchdowns

by Julian Ku

U.N. General Assembly Condemns Holocaust Denials

by Julian Ku

ICC Refers First Case to Trial

by Julian Ku

Remembering Father Robert Drinan

by Chris Borgen

Sincere Appreciations to John Bellinger

by Roger Alford

Bidding John Bellinger Adieu

by Duncan Hollis

Wrap Up Discussion II

by John Bellinger

This post marks the end of my stint as guest-blogger. Although I have a few bruises to show for it, I have nonetheless appreciated the opportunity to have an in-depth dialogue with all of you regarding what I believe are very difficult legal issues, and hope that this dialogue will continue on this forum and others over the weeks and months to come. Today, I will try to address a number of the points raised in the essays and comments that have responded to my previous posts; I hope readers will forgive me for not being able to respond to every question.

If one thing is clear from the numerous posts and comments on the detention and treatment of international terrorists detained outside of a country’s territory, I think it is that the wide and inconsistent range of views we’ve read illustrate just how complex and unclear this area of the law remains. As Legal Adviser, I am, of course, acutely aware that many people disagree with U.S. policies or interpretation of the law relating to detainees. This is one reason why I have wanted to engage in greater public discussion of these issues. But if the proper legal framework were as clear as some critics think, we wouldn’t have, five years after September 11, so many international law experts still disagreeing — not just with us, but with each other — about what the applicable rules ought to be. Some, like Manfred Nowak, the UN’s Rapporteur on Torture, have applied human rights law and have asserted that detainees in Guantanamo must be prosecuted for crimes or released. Many others agree that it has been appropriate for the U.S. and coalition forces to detain members of the Taliban and al Qaida under the laws of war but argue that the U.S. has applied the laws of war improperly by failing to give the detainees POW status or providing Article 5 tribunals. It is especially striking to me that so many continue to express views that seem to be inconsistent with the Supreme Court’s decision in the Hamdan case, which should have settled much of the dispute over the international law applicable to the U.S. conflict with al Qaida.

There is a growing international acceptance that the legal framework applicable to international terrorism is complex and unclear. Earlier this week, the Foreign Affairs Committee of the UK’s House of Commons issued a report on Guantanamo in which it concluded that “the Geneva Conventions are failing to provide necessary protections because they lack clarity and are out of date.” The Committee recommended that the British Government work to update the Conventions “in a way that deals more satisfactorily with asymmetric warfare, with international terrorism, with the status of irregular combatants, and with the treatment of detainees.”

The Committee’s comments echo previous conclusions by UK Defence Minister John Reid and by the OSCE Special Rapporteur on Guantanamo, Anne-Marie Lizin. In an April 2006 speech, Reid called on the international community to re-examine whether the Geneva Conventions are appropriate to deal with the conflict with international terrorists capable of operating on a global scale. “If we do not,’ he said, “we risk continuing to fight a 21st Century conflict with 20th Century rules.” Madame Lizin, in her July 2006 report on Guantanamo, concluded that there is “incontestably some legal haziness” regarding the legal framework applicable to “international terrorist organisations.” Madame Lizin called for an “international commission of legal experts” to examine “whether additional instruments are necessary in future in order to counter or to prevent these new threats to international peace and security, including the international status of the prisoners of these new conflicts, in light of the current legal and practical haziness.” Although I think it is premature to attempt to negotiate a new Geneva Convention – especially in light of the strides that we have made in developing the specific rules and regulations governing the detention, interrogation and trial of unlawful enemy combatants in the Military Commissions Act and recent DOD directives — I do agree that further work needs to be done to examine how to deal with the problem of international terrorists who may be beyond the reach of our criminal laws and yet who are not part of the armed forces of a party to the Geneva Conventions.

Much of the discussion over this past week has veered back and forth between law and policy. Tobias Thienel objected to my use of a “political point” as having “no legal value whatsoever.” Many of the arguments made by contributors to this blog, though couched in legal terms, have actually expressed opinions of what the law “ought” to be, or of progressive developments they would like to see in the law. The truth is that many differences of opinion that are described as legal differences, are in fact policy differences stemming from different legal traditions and cultures, different nations’ experiences in World War II, and different approaches to problem-solving. I addressed some of these differences in greater depth in my remarks to the Duke Law School Center for International and Comparative Law this past November, and I would encourage those interested to read those remarks.

I wanted to begin my substantive comments by addressing some of the points raised by Deborah Pearlstein. Ms. Pearlstein’s remarks were in many ways a comprehensive critique of the Administration’s detention policies from the perspective of the human rights community, so I think it’s important to address her major points. She states that she agrees that we were, and probably still are, in an armed conflict in Afghanistan that entitles us to seize and detain prisoners. Given this critical shared starting assumption, I wanted to address several of her specific points.

First, Ms. Pearlstein asserts that the reason the United States did not initially conclude that the conflict with al Qaida fell within the ambit of Common Article 3 was that the Administration was trying to avoid treating detainees humanely. But as I explained last week, most legal scholars believed prior to Hamdan that Common Article 3, which applies to armed conflicts “not of an international character,” covered internal armed conflicts, or civil wars, that took place within a single state. Pictet’s commentary to the Geneva Conventions directly supports this legal position – his commentary to the Third Convention indicates, (on page 37) “it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities – conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.” Whatever can be said of our conflict with al Qaida, it was clear that it was not internal to one state, given the attacks against Western interests that had been perpetrated across the globe, including in the United States, Africa, and the Middle East. Thus, I think it was reasonable for the United States to conclude that Common Article 3 did not apply as a treaty matter to the conflict with al Qaida.

Second, Ms. Pearlstein suggests that even after Hamdan it is the position of the United States that Common Article 3 is too vague to require our forces to follow it. This is simply not true. The President has made clear that the entire U.S. Government will comply with Hamdan. Deputy Secretary of Defense Gordon England issued a directive following Hamdan mandating a top-to-bottom review of DoD policies related to detention of combatants in the conflict with al Qaida and the Taliban to ensure treatment was consistent with Common Article 3. The new DoD Detainee Directive and Army Field Manual prescribe detainee treatment and interrogation policies that are fully consistent with Common Article 3 as well. And the Military Commissions Act crafted new rules for military commissions that comply with Hamdan also. The MCA did define which violations of Common Article 3 are subject to criminal prosecution. But as others have pointed out on this blog, criminal trials based on offenses that are vague and undefined violate the most basic norm of due process. Consistent with this principle, the MCA gives guidance to prosecutors and potential defendants about what conduct will result in criminal sanction, while the more basic requirement that detainees be treated consistently with Common Article 3 remains in place.

Third, Ms. Pearlstein argued that the U.S. acted inconsistently with the Geneva Conventions in not providing Article 5 tribunals to “all detainees who question their status.” In fact, as Geoffrey Corn and Matthew Gross pointed out, Article 5 requires a “competent tribunal” only “should any doubt arise” as to whether POW status is due. Thus, for example, if we catch Osama Bin Laden running from the battlefield, there would be no doubt that he is not entitled to POW protections and the Conventions would not mandate an Article 5 review. As I stated in my last post, in response to Ken Anderson, we have in any event provided those detained at Guantanamo more extensive procedural protections in the CSRT process than in a typical Article 5 tribunal, including the opportunity to be heard from, to present reasonably available evidence, to obtain the benefit of a personal representative, and see an unclassified summary of the information against the detainee. The government is also required to provide the CSRT any exculpatory information it may have. And under the Detainee Treatment Act and MCA, detainees are given the right to challenge their combatant determination in the federal courts. I understand fully that critics are still not satisfied with the CSRTs. But it is incontrovertible that the CSRTs provide far more procedural protections than a traditional Article 5 Tribunal convened by the U.S. military or any of our allies in any previous conflict. Thus, Ms. Pearlstein is correct in stating that “CSRTs are not the kind of hearing Geneva had in mind,” as the CSRTs in fact provide far greater protections than were envisioned for an Article 5 review.

Fourth, Ms. Pearlstein takes issue with the U.S. Government’s not according POW status to the Taliban. As I mentioned last week, we acknowledge that this is a difficult question over which there has been much debate. But the U.S. Government has disagreed with her statement that the Taliban was “the armed force of Afghanistan.” The Taliban was among a patchwork of rival militias – indeed, they were the most powerful of these rival groups — at the time of the U.S. invasion, but it is not clear that they ever rose to the level of the official armed forces of Afghanistan, as the conflict with the Northern Alliance persisted to the day Coalition forces began operations there. In any event, they clearly failed to meet the requirements of Article 4 of the Third Geneva Convention. Contrary to Ms. Pearlstein’s suggestion, the black turbans were far from a uniform characteristic of the Taliban. Kanal Matinuddin’s book, The Taliban Phenomenon: Afghanistan 1994-97, provides detailed photographs showing Taliban soldiers wearing turbans of different colors and styles, many of which appear to closely resemble the turbans worn by non-military Taliban and other civilians.

Fifth, Ms. Pearlstein repeats a charge frequently leveled at the United States: failure to accord the Taliban or al Qaida POW status somehow fails to provide them the protections of the law of war while imposing on them the requirements of that law. I disagree with this description. To begin with, it can’t credibly be argued that any category of combatants, least of which unprivileged belligerents such as Taliban and al Qaida, should be freed from a requirement to follow the laws and customs of war that require protection of the civilian population, such as distinction of civilian targets and the prohibition from targeting civilians and civilian objects as such. We believe that they have failed to meet these obligations, and committed war crimes in the process, and they must be held accountable. At the same time, it can’t credibly be argued that al Qaida has met the criteria for POW status. As Geoff Corn observed, the categories of individuals entitled to POW status is exclusive: private citizens captured while engaged in combatant acts are not entitled to prisoner of war status. If captured while taking a direct part in hostilities, they could be classified as unlawful combatants or spies, prosecuted under the capturing government’s law, and/or held for the duration of the hostilities. This is also an unsustainable position in the wake of the Hamdan decision, which found that a different status under the Geneva Conventions applies. So I think the United States acts consistently with the Geneva Conventions and the law of war in denying these groups POW protections, while at the same time holding them accountable for their violations of the laws of war.

I also want to address here the related claim suggested by some of the responses to my post on Unlawful Enemy Combatants and Ken Anderson’s response that holding and prosecuting members of the Taliban and al Qaida under the laws of war somehow legitimizes their actions and will require us to confer upon them combatant immunity for their attacks against military targets. Experts in international humanitarian law will confirm that this is certainly not true. The U.S. Supreme Court also addressed this point in Ex parte Quirin when it ruled that eight German saboteurs were unlawful combatants who were subject to trial in military tribunals for violations of the laws of war. The Court held that the law of war makes a distinction between lawful and unlawful combatants. The unlawful combatants, like lawful combatants, are subject to capture and detention, “but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” The Court went on to discuss “familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals” Members of al Qaida such as Khalid Shaykh Mohammed had no legal right to attack the Pentagon. As a result, they are not entitled to combatant immunity. But they may be prosecuted under the laws of war for their violations of that law, as the German saboteurs were prosecuted in Quirin. Thus it is that a lawful combatant, upon being captured, may not be prosecuted for murder because he is entitled to combatant immunity, though he may be prosecuted for committing war crimes. The unlawful combatant, however, who is not protected by the mantle of combatant immunity, may be prosecuted for both war crimes and for other acts (such as killing a lawful combatant) for which those entitled to combatant immunity could not be prosecuted.

Finally, Ms. Pearlstein describes Guantanamo Bay as “inconsistent with IHL” and “a bad mistake.” In the first instance she appears to focus on what she asserts were “various forms of detainee abuse” that took place there. To be clear the U.S. Government does not countenance abuse of detainees, and those transgressions that have taken place have been investigated, and where appropriate, punished. But her larger point seems to be part of continuing calls to close Guantanamo. The President has stated that he would like to move to the day that Guantanamo can be closed. But, as I have stated in a previous post, continuing condemnation of Guantanamo, without more, will not help close it any faster. Here, I would like to quote again from the recent report of the House of Commons Foreign Affairs Committee, in which the Committee concludes that “many of those detained present a real threat to public safety and that all states are under an obligation to protect their citizens and those of other countries from that threat. At present, that obligation is being discharged by the United States alone, in ways that have attracted strong criticism, but we conclude that the international community as a whole needs to shoulder its responsibility in finding a longer-term solution.” I appreciate that a number of human rights organizations have tried to help with the resettlement of some of the detainees in Guantanamo who have been approved for release, and I urge other countries and groups to do the same.

Turning to other issues, my first wrap-up post also generated strong reactions regarding the U.S. view that the International Covenant on Civil and Political Rights (ICCPR) does not apply outside the territory of the United States. As I noted earlier, this is a longstanding U.S. position that is based on the plain text of Article 2 of the ICCPR (the Covenant applies to “. . . all individuals within its territory and subject to its jurisdiction . . . ”) and supported by the negotiating history. . Indeed, the draft text of Article 2 under consideration by the Commission on Human Rights in 1950 would have required that states ensure ICCPR rights to everyone “within its jurisdiction.” The United States, however, proposed the addition of the requirement that the individual also be “within its territory.” Eleanor Roosevelt, the U.S. representative and then-Chairman of the Commission emphasized that the United States was “particularly anxious” that it not assume any extra-territorial obligations.

She explained that “[t]he purpose of the proposed addition [is] to make it clear that the draft Covenant would apply only to persons within the territory and subject to the jurisdiction of the contracting states. The United States [is] afraid that without such an addition the draft Covenant might be construed as obliging the contracting states to enact legislation concerning persons, who although outside its territory were technically within its jurisdiction for certain purposes. An illustration would be the occupied territories of Germany, Austria and Japan: persons within those countries were subject to the jurisdiction of the occupying states in certain respects, but were outside the scope of legislation of those states.” Eleanor Roosevelt also specifically referred to “leased territories” during her explanation of the United States change in the text of Article 2.

Although some delegations spoke against the U.S. amendment, the U.S. proposal ultimately was adopted at the 1950 negotiating session at the Human Rights Commission by a vote of 8-2 with 5 abstentions. Subsequently, after similar debates, the United States and others defeated French proposals to delete the phrase “within its territory” at both the 1952 session of the Commission and the 1963 session of the General Assembly. More information about our interpretation can be found here.

Jan challenged the longstanding U.S. interpretation, arguing that we need to look at the “purpose” of human rights treaties. Although the text of a treaty is certainly the starting place for interpretation, I don’t disagree that the purpose behind the treaty is relevant as well. As a matter of longstanding treaty law, as reflected in the Vienna Convention on the Law of Treaties, a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Resort to this fundamental rule of interpretation led the U.S. government over an extended period of time to conclude that the obligations assumed by a State Party to the International Covenant on Civil and Political Rights (ICCPR) apply only within the territory of the State Party.

This interpretation of the ICCPR is not contrary to the purpose of the ICCPR; rather, it’s consistent with the terms of the treaty, which require states to guarantee rights to persons within their territory and subject to their jurisdiction. Further, it is important to note that the non-extraterritorial application of a treaty does not mean that an individual has no legal protections outside of the United States. On this point, I must correct the misconception, expressed by Jan, that by taking detainees “a few miles off the coast” we can engage in torture. To be clear, torture by U.S. personnel of anyone, anywhere is prohibited by criminal law, and those that violate this absolute prohibition will be held accountable.

Francisco argued that the U.S. interpretation of the ICCPR was invalid because the U.N. Human Rights Committee found the treaty to apply extraterritorially, pursuant to its “jurisdiction to settle such conflicting state-party interpretations.” However, Article 40 of the ICCPR does not give the Committee the authority to alter treaty obligations or to issue authoritative interpretations of the treaty. States could have chosen to give the Committee this authority, but they did not. The practice of the Committee is to issue “general comments” on the interpretation of the treaty, which are not legally binding. Over the years there have been utterances in general comments and in country recommendations with which the United States and other States Parties disagree. These are honest differences of opinion.

Several writers expressed concern that in implementing Article 3 of the Convention Against Torture, which obligates a Party not to “expel, return (‘refouler’) or extradite a person to another State” if there are substantial grounds for believing a person would be tortured, the United States has adopted as its standard whether “it is more likely than not” that the person would be tortured. These writers argued that the United States should adopt a lower standard that would prohibit transfers upon a finding that there was a smaller risk of torture. This is another area where issues of legal obligation and desirable policy can be confused. As a matter of treaty law, the “more likely than not standard” is fully consistent with U.S. treaty obligations under the Convention. Indeed the U.S. Senate gave its advice and consent to ratification of the Convention Against Torture in 1994 subject to the formal written understanding, “[t]hat the United States understands the phrase, ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture,’ as used in article 3 of the Convention, to mean ‘if it is more likely than not that he would be tortured’”. As the United States government included this understanding in its instrument of ratification at the time it became a State Party to the Convention, the understanding describes the obligation the United States assumed under Article 3. It’s worth noting that no state party to the treaty raised an objection to this understanding.

The reason for adopting that understanding was explained in the May 10, 1988 letter of submittal from the Department of State:

“Under current U.S. law, an individual may not normally be expelled or returned where his ‘life or freedom would be threatened . . . on account of race, religion, nationality membership in a particular social group or political opinion.’ 8 U.S.C 1253(h)(1). The U.S. Supreme Court has interpreted this provision to mean that a person entitled to its protections may not be deported to a country where it is more likely than not that he would be persecuted. INS v. Stevic, 467 U.S. 407 (1984). To clarify that Article 3 is not intended to alter this standard, the following understanding is recommended.”


That understanding is the one that was adopted by the Senate and contained in the U.S. instrument of ratification.

Before I leave the legal issues related to the conflict with al Qaida and the Taliban, I wanted to commend Ken Anderson and Charles Garraway for their comments on a “middle way” for approaching counterterrorism issues moving forward. As I have emphasized in previous posts, as well as in my remarks to the London School of Economics, military force and the laws of war are not the only appropriate or legal approach to confront international terrorism generally, or al Qaida in particular. We recognize that other countries, like the UK, Germany, and Spain, may be able to continue to use their criminal laws to prosecute members of al Qaida. Indeed, the United States itself continues to use its criminal laws to prosecute members of al Qaida, like Zacharias Moussaoui. The point here is that we recognize there is no one-size-fits-all approach that works for all counterterrorism efforts, and we will continue to employ a flexible array of tools, including military force, law enforcement, diplomacy, intelligence operations, and financial sanctions to confront the threat.

I also have a few reactions to the various comments on my post on immunities. Although this subject did not elicit as many reactions as my law of war postings, I appreciated the questions and comments, particularly Tobias Thienel’s taking the time to write about the House of Lords decision in Jones, the U.S. Chuidian line of cases, and the overall issue of state responsibility.

The U.S. Government discussed state responsibility in its ILC’s 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10, Art. 4 (2001).

The U.S. Government also explained in the Dichter Statement of Interest why practice regarding international criminal law and tribunals is not probative of whether a government official enjoys civil immunity for official acts in the domestic courts of another country. If you are interested, take a look at the discussion starting on page 29. You will also see that we observed that the lack of an immunity exception for civil suits alleging jus cogens violations does not mean that such violations, when they actually occur, will necessarily be beyond the reach of the courts (e.g., if there is a waiver) or escape other kinds of remedies, such as appropriate criminal proceedings or sanctions and other forms of diplomatic pressure.

As for U.S. practice regarding criminal immunity of heads of state, the Legal Adviser’s office is not aware of any criminal charges having been brought against a sitting head of state by United States federal or state prosecutors. No U.S. court has squarely addressed the immunity from criminal charges of a former head of state in the face of an assertion of immunity by the relevant state, but we have had at least one case in which a prosecution proceeded after a waiver: Pavel Lazarenko, former Ukrainian Prime Minister and Member of Parliament, was prosecuted successfully by the United States for violations of various U.S. laws after the Ukrainian parliament voted to remove his immunity.

Finally, in response to those who asked about employment in the Legal Adviser’s Office, we always welcome expressions of interest or applications from qualified candidates, although at this point we do not anticipate any vacancies before October 2007. We have a summer internship program for second year law students and an externship program for second and third year law students. We hire new lawyers and laterals. You can find information about the Office and the application process here.

Thank you all for joining me in this discussion.

Separation of Powers and Troop Build-Up in Iraq

by Roger Alford

Noriega To Be Released in September

by Kevin Jon Heller

Appellate Jurisdiction Over Political Questions

by Roger Alford

Davos v. Anti-Davos: Guess Who Wins?

by Peter Spiro

Spring International Law Workshops Series

by Peter Spiro

A Response from the Human Rights Community

by Deborah Pearlstein

[Opinio Juris welcomes Deborah Pearlstein as a guest respondent. She will spend the coming year as an Associate Research Scholar at the Woodrow Wilson School for Public and International Affairs at Princeton University. For the past three years, she has directed the Law and Security Program at Human Rights First.]

With thanks to Opinio Juris for inviting me to engage in this interesting discussion, I wanted to offer a few remarks on Mr. Bellinger’s thoughtful posts. I should also thank Mr. Bellinger for his detailed and public engagement with these important issues.

There are several points on which Mr. Bellinger and I agree. Most generally, many of the legal issues surrounding the detention and trial of terrorist suspects are indeed complex. And it is also true in this area of law and policy, as all others, that it is far easier to criticize than to propose affirmative solutions. On our particular subject matter, Mr. Bellinger is right that the war in Afghanistan beginning in 2001 was an armed conflict within the meaning of the law of war (international humanitarian law or IHL), and that in the course of that conflict, the United States was entitled to seize and detain prisoners. I also think – and here I perhaps differ from some of my colleagues in the human rights community – that there is a reasonable argument to be made there is still an armed conflict governed by IHL, among other laws, under way in Afghanistan.

That said, there a number of points on which Mr. Bellinger and I appear to disagree. In the interest of space, I’ll address just a few of these. And I’ll hope for an opportunity for further discussions.

I should note at the outset that Mr. Bellinger’s arguments are limited in their persuasiveness not only by several specific errors, but also by the reality that there are certain aspects of the law respecting detention, treatment and trial that do not present complex questions – aspects that the current administration has violated nonetheless. From the prohibition against torture and cruel treatment, to the simple requirement that all detainees seized in the course of armed conflict are entitled to a so-called Article 5 hearing to determine whether they are entitled to prisoner-of-war protections (codified in existing U.S. Army regulations), the administration has devoted much of the past five years arguing even these (I would have once thought) inarguable points.

Take for example the principle that the prohibition against torture and cruel treatment – contained in Common Article 3 of the Geneva Conventions – applies to all those detained by the United States in the course of armed conflict. As the International Committee of the Red Cross, the body designated by the Geneva treaties as primarily responsible for treaty interpretation, has long held, all those caught up in the course of armed conflict are governed by one of the Geneva Conventions—either as lawful combatants under Geneva III, or as civilians (whether engaged unlawfully in combat or not) under Geneva IV. (Take a look at International Committee of the Red Cross, International Humanitarian Law and Terrorism: Questions and Answers (May 5, 2004).) Contrary to positions the administration took for years, right up until it lost this argument when the Supreme Court decided Hamdan last year, Common Article 3 applies no matter the detainee’s status as “prisoner of war,” “unprivileged belligerent,” civilian, or anything else.

Let me unpack this example a bit, because this understanding of the applicability of Common Article 3 I think goes to the core of complaints about the administration’s use of the term “enemy combatant” these past years. Contrary to Mr. Bellinger’s suggestion, I would not argue that the primary problem with this designation is that it denies to Al Qaeda members the special status of “prisoner of war.” Indeed, I don’t know anyone who argues that Al Qaeda fighters are entitled to POW protection. Rather, I objected vigorously to the administration’s efforts to use the “enemy combatant” label because, among other things, it was used as a way of skirting otherwise applicable laws, particularly to deny to a large swath of detainees the protection of Common Article 3. (See, for instance, former Defense Secretary Rumsfeld’s comments at a press briefing in 2002 “[T]echnically, unlawful combatants do not have any rights under the Geneva Conventions.”). Under IHL, however, the key difference between a “prisoner of war” and anyone else engaged in combat is not what level of cruelty one can subject them to during interrogation. Rather, it is whether they enjoy the so-called combatants privilege: in brief, if you’re a lawful combatant (such as the uniformed military of a state party to the Geneva Conventions) and you shoot someone in the course of armed conflict, you can’t be charged with murder for doing it. In contrast, if you’re not lawfully engaged in combat (as in the case of a civilian committing murder in the course of armed conflict), you can be prosecuted for shooting someone, and you’re not entitled to the very special protections afforded privileged “prisoners of war.” If individuals (including Al Qaeda members) not part of a state army or other legitimate organized military force engage directly in combat in the course of armed conflict, they can and should be prosecuted (criminally or through a lawfully constituted military tribunal). But whether you’re privileged to kill people during war or not – the lesson of Common Article 3 (in the prisoner of war Convention, Geneva III, or in the Convention for the protection of civilians, Geneva IV) is that everyone is entitled to that baseline humane treatment. That is one of the conclusions the administration was trying to avoid with the use of terms like “enemy combatant.” And that is what Hamdan rejected.

(An aside to respond to the argument Mr. Bellinger touches upon that Common Article 3 is too vague a standard to hold our troops to observe. I’m deeply skeptical of this claim. Our police officers daily apply the very general standard “probable cause”; our troops can likewise well apply the standards “cruel treatment” and “outrages upon personal dignity” within the meaning of Geneva. In any case, if there were any doubt, the administration and Congress could quite simply resolve it in favor of greater clarity, and greater criminal liability. (In the Military Commissions Act, the “clarity” objection was resolved by specifying particular violations, but by generally narrowing liability under the War Crimes Act.) For what it’s worth, the standard I’d recommend for understanding what Common Article 3 prohibits: if we’d be outraged if someone did it to our troops, it’s an outrage if we do it to someone else. The standard may not be perfect, but I suspect it might help us avoid in the future some of the conduct we’ve seen in recent years – forcing detainees to remain naked, in freezing cells, standing until their legs cramp in excruciating pain, denying them access to a bathroom when they need it and depriving them of virtually all human contact for months on end.)

None of this is to suggest that the abusive treatment afforded some “enemy combatants” these past years is the only problem with the administration’s use of the term. There are many problems with it. To take just a few others that came up in recent posts: Mr. Bellinger is wrong to suggest that sets of fighters (including the Taliban) in the Afghanistan war could be categorically labeled unlawful enemy combatants and across the board denied POW protection. Excluding a whole class from protection of the Geneva Conventions (according to the doctrine of Rumsfeld and other senior administration officials whose views were expressed in early internal memos) is inconsistent with the individualized hearings contemplated by Geneva III, Article 5. Indeed, all detainees who question their status are entitled to an Article 5 hearing upon capture – not, as the CSRTs ultimately provided, hearings several years and several thousands of miles removed from the field of conflict when witnesses to the capture and evidence of innocence are all but impossible to come by. And as has now been extensively documented, beyond their failings of temporal and geographic proximity to the point of capture, the CSRTs have fallen badly short of fairly and accurately determining whether detainees were rightly captured in the first instance. (Tim Golden’s December 31, 2006 piece in the New York Times on the flaws of the CSRTs was quite powerful on this point.) The CSRTs are not the kind of hearing Geneva had in mind.

Mr. Bellinger’s argument as to why Taliban soldiers are not entitled to POW protection is particularly problematic. As the armed force of Afghanistan, a state party to the Geneva Conventions, Taliban fighters held by the United States would appear to be quintessential prisoners of war. But according to Mr. Bellinger, because the Taliban wore no distinctive uniform and because they unlawfully attacked civilian targets, they are not entitled to enjoy POW protection. Mr. Bellinger is right to acknowledge the text of Geneva III does not clearly require that the armed force of a state party wear uniforms; being a member of the state’s armed forces is status enough to qualify for POW protection. In any case, on the facts, Mr. Bellinger is too facile – Taliban often wore black turbans that distinguished them from the rest of the population. Beyond that, American forces in Afghanistan could themselves be found out of uniform for various reasons. (See one photo of this in Human Rights First’s 2003 publication “Assessing the New Normal.”) If we insist on requiring that combatants be uniformed at all times to receive POW protections, we may well end up depriving our own troops of the POW protections we rightfully demand they receive. That can’t plausibly be an outcome we seek.

Perhaps most troubling in this line of argument, Mr. Bellinger asserts that the bargain the Geneva Conventions strike may be summarized as follows: “Ignore the laws of war, and you cannot seek the status given to lawful combatants.” Because the Taliban violated the law of war, they are not entitled to the protection of the law of war. This is something like a circular argument. The Taliban no doubt committed war crimes; accordingly they should be prosecuted for these violations under the law of war. If we reject the idea that the law of war applies to them, we jeopardize our ability to pursue their prosecution for war crimes under these very same laws. I do not believe the administration can seek to obtain the power benefits that come with IHL without accepting the rights burdens that also attach. The Hamdan Court embraced this principle in insisting military commissions set up to try prisoners for war crimes themselves comply with the law of war.

Let me conclude by returning to what I believe are two more fundamental disconnects between Mr. Bellinger’s arguments and the position of many administration critics. First, I am pleased that Mr. Bellinger believes that the “phrase ‘the global war on terror’ … is not intended to be a legal statement.” But where Mr. Bellinger may aim to draw a distinction between arguments the administration makes rhetorically or as a matter of policy, and arguments it makes expressly as a matter of law, that distinction is not one the administration’s litigators have hewed to in case after case in which it has resisted judicial review of any and all aspects of the global detention system the United States has operated for the past five years, and in which it has argued that because we are at war, the President enjoys authority, that he otherwise does not have, to surveil, detain, question, try individuals, and keep secret information. Calling it a “war” – rhetorically or not – figured centrally in the President’s legal arguments. That the “war” has shifted in its scope and description from brief to brief at a minimum calls into some question the justification for the broad swath of policies the administration has pursued in this conflict’s name.

Finally, I suspect Mr. Bellinger might agree that some of the actions taken in the first years following the attacks of September 11 were in fact inconsistent with IHL. Indeed, criticism of Guantanamo Bay and various forms of detainee abuse – both as a matter of law and policy – is by now so thoroughly bipartisan and international in nature, it is hard to see these policies as anything but a bad mistake. What is critical now, however, is not to compound that mistake by torquing our interpretation of IHL (and passing new legislation like the Military Commissions Act) in order to bolster an argument that these failed policies (and other past mistreatment of prisoners) were legally justified. The solution to Guantanamo and related policies now lies in treating them as limited to what they were – a flawed approach, legally erroneous but sui generis – not necessary to the broader policy challenge of combating the threat of terrorism. There is no doubt the United States needs to be able to detain some people to combat terrorism, and needs to be able to question people to elicit information. But in addressing these pressing demands, Congress and the administration should start from the basic security policy imperatives – not from the real but separate need to deal with, for example, the 300 some remaining detainees still subject to the Guantanamo mistake. Let’s not make law – as we did in the MCA – that purports to reinterpret U.S. and international law forevermore just to try to correct for the mistakes made in this particular case. Five-plus years after September 11, and with all the calm deliberation we can afford, we can pursue security policy with a view to ensuring that the protection of fundamental individual rights under U.S. and international law are at the core of U.S. actions against terrorism.

India and New York Will Square Off at US Supreme Court (Over Property Taxes)

by Julian Ku

Argentina and Uruguay Await ICJ Provisional Measures Judgment

by Julian Ku

Colonel Steele, the Bush Administration, and Chicken Little

by Kevin Jon Heller

Wrap Up Discussion I

by John Bellinger

As I look to wrap up what has been an energetic and stimulating dialogue on a host of international legal issues, I would like to post some responses now, and will conclude next week. Let me reiterate how much we appreciate the comments, especially from those who have provided detailed legal and historical analysis. For too long, the discourse on these complex and difficult issues has been at too high a level of generality, and these comments have been very helpful to us.

I want to begin by tackling perhaps the most fundamental issue underlying many of the threads this week: why the United States believes it is in an armed conflict with al Qaida. Marko, for example, has stated that he continues to disagree with the premise that the conflict with al Qaida is a global armed conflict, preferring to view the conflict as discrete wars in Afghanistan and Iraq. I have already discussed in depth why we view our conflict with al Qaida in global terms. The magnitudes of the attacks they have undertaken against us and our allies across the globe belie the comforting conclusion that the enemy is confined to discrete geographical locations. But regardless of whether one accepts that argument, it seems beyond controversy that our actions in Afghanistan in 2001 and 2002 constituted a war. U.S. and Coalition forces were engaged in military actions, not enforcement of criminal laws. And I think the continued casualties inflicted on Coalition troops in Afghanistan, and on civilian populations around the globe by al Qaida, confirm that this conflict is ongoing. Most critically though, whether one then views those detained in this conflict as detained in a global or territorially-discrete conflict does not change the central legal proposition that they are wartime detainees to whom the law of war applies.

What it means for individuals to be detained under the law of war has been the source of much consternation on this board as well. Many posts have suggested the view that everyone captured in the conflict with al Qaida and the Taliban is entitled to protection under either the Third or Fourth Convention. While I can understand an aspiration that there be no gaps in coverage between the two Conventions, I thought Geoffrey Corn’s reference to the final record of the drafting sessions helpfully clarified that the conventions were designed to protect certain specific types of individuals, not everyone.

For example, the Third Convention on prisoners of war describes with great precision the 6 categories of persons who are considered to be prisoners of war — including members of the armed forces of a party to the conflict, members of other militias and volunteer groups who meet four specific conditions, and persons who accompany the armed forces — and 2 categories of persons who are to be treated as prisoners of war. The Fourth Convention on civilians specifically excludes several categories of persons from its coverage, such as nationals of a state not bound by the convention and, in certain circumstances, nationals of a neutral state in the territory of a belligerent, and nationals of a co-belligerent state — as well as persons covered under the First, Second or Third Conventions. As Geoffrey Corn’s post makes clear, the Fourth Convention was designed to protect civilian victims of war, and was not intended to be a “safety net” to protect “illegitimate bearers of arms who could not expect full protection under rules of war to which they did not conform.”

Others took issue with how we’ve gone about determining whether a combatant is entitled to protection under the Third Convention. Ken Anderson’s observation that while as an international law matter the President was authorized to designate the Taliban and al Qaida as unlawful combatants, as a policy matter it would have made sense to use Article 5 Tribunals to do so, is also worthy of comment. The United States was not, and no country could have been, prepared to deal with the type of massive terrorist attacks and worldwide terrorist network that we confronted on September 11. There was no book on a shelf somewhere that contained a ready legal guide to combating armies of transnational terrorists. Article 5 of the Third Convention provides: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” In 2002, our government concluded that because, as a legal matter, al Qaida (because they were not a party to the Convention) and the Taliban (because of their actions) could not qualify under any circumstances as POWs, Article 5 Tribunals were not necessary or appropriate.

Since that time, U.S. policies and practices have had to evolve significantly.

The United States has now created additional processes to ensure that those detained at Guantanamo are the right people to detain and are not detained any longer than is necessary. To ensure that we are holding the right people, every detainee in Guantanamo has his case reviewed by a formal Combatant Status Review Tribunal, which determines whether a detainee is properly classified as an enemy combatant. The detainee has the assistance of a military officer, may present information, and may appeal the determination of the CSRT to our federal courts. It is simply not correct to say that detainees have not and will not have access to our federal courts to review their detention. Nearly 40 detainees have been released as a result of this process.

Detainees who the United States does not intend to prosecute by military commission also have their detention reviewed annually by an Administrative Review Board. This Board determines whether the detainee can be released or transferred without posing a serious threat to the United States or its allies. We are aware of concerns about the indefinite nature of the conflict with al Qaida and the resulting concerns about indefinite detention. ARBs attempt to address these concerns by balancing our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary. To date, more than 200 detainees have been released or transferred pursuant to the ARB process.

While I hope this addresses some of Katherine’s (and Nathaniel Nerode’s) concerns about the CSRT and ARB process, I do think she raises a good point about the difficulty of repatriating some detainees who have been designated as eligible for transfer or release. We have nearly 75 additional detainees that we would like to move off of Guantanamo, but have been unable to do so to date. In some instances, countries are not willing to take back their nationals, either because they cannot confirm their nationality or because they lack the will to accept back those that have been at Guantanamo. In other instances, countries have been unwilling or unable to take the steps needed to ensure that transferred detainees will not pose a threat to the United States or its allies. We are not in a position to transfer detainees to still other states because we have concerns about how those states will treat their nationals once returned. The State Department will continue to push countries to take back their nationals with appropriate security and humane treatment assurances. Similarly, we look to other countries in Europe and elsewhere help resettle those detainees who cannot be repatriated. Guantanamo is not going to be closed any faster by more breathless calls for its “immediate” closure, but foreign governments and NGOs can help reduce the number of detainees by urging countries to take responsibility for their nationals.

Katherine also wrote that she utterly disagreed with the contention that the Convention Against Torture does not apply to the war on terror. I want to clarify (again!) that this has never been our contention. We have never said that the Convention Against Torture (or the ICCPR for that matter) does not apply in times of war; frankly, this is one area where our position has repeatedly been mischaracterized, including by the Committee Against Torture and the Human Rights Committee.

What we have said is that from a legal perspective, whether a particular situation falls within the scope of any treaty requires a review of the specific conduct and the potentially relevant treaty provision(s) according to their terms. When dealing in situations of armed conflict, you also have to take into account that there is an entire body of law — the law of armed conflict or international humanitarian law — that provides specialized rules (the lex specialis) that govern. This does NOT mean that we think the CAT does not apply in a time of war. Of course it does. Our police are not free to ignore the CAT when they make arrests inside the United States. But when our troops are engaged in military operations, they follow the applicable laws of war, which provide specific rules (such as for the repatriation of prisoners) but which also include many analogous and often identical rules (such as the prohibition against torture).

As lawyers we believe that you have to read the treaties as they are, not as how some would like them to be. For example, we are often criticized for our long-standing position (dating from when Eleanor Roosevelt negotiated the Covenant) that the ICCPR does not apply extraterritorially. This view is based is based on the plain text of Article 2 of the ICCPR, which says that the Covenant applies only to individuals who are both within its territory and who are subject to its jurisdiction. This interpretation is supported by the plain text of the convention as well as its negotiating history (travaux preparatoire). You can read about our interpretation in detail here.

Another example — one Katherine mentioned — is Article 3 of the Convention Against Torture, which is a prohibition on transferring persons to another country where it is more likely than not that they will be tortured. One of the legal issues that has arisen in interpreting Article 3 has been whether it applies to transfers from outside the United States. Again, our legal conclusion, based on the plain text and Supreme Court interpretations of the term “refouler” (see Sale v. Haitian Centers Council, 509 U.S. 155 (1993)) as well as the negotiating history of the provision is that it does not. (More detail is on pages 32-37 of this document).

While we recognize that some might not agree with that legal analysis (the Committee Against Torture did not), we also believe that is based on a solid, good faith legal analysis of the text of the Convention, not on some results-driven attempt to evade the law.

Of course, we share the concern about not sending people to face torture. That’s why regardless of the legal analysis, in all cases the United States applies the standard the United States agreed to in Article 3 to detainees transferred from outside the United States (e.g., Guantanamo) as a matter of policy. We do not transfer people to countries where we believe it is more likely than not that they will be tortured. This policy applies to all components of the U.S. government and to individuals in U.S. custody or control wherever they might be detained.

Just as we must be careful about asserting what treaties mean, similarly we think people need to be more careful when making assertions about what constitutes “customary international law.” This has received attention in many posts, and some have cited to the recent study by the International Committee of the Red Cross (ICRC) on Customary International Humanitarian Law to support their arguments. There is general agreement that customary international law develops from a general and consistent practice of states followed by them out of a sense of legal obligation. Further, the law develops largely from the practice of specially affected states, not from commentators, statements by non-governmental organizations, or the practice of states with little history of participation in the activities in question. For that reason, the United States has concerns about the methodology of the ICRC study, and we have addressed those concerns directly with them. While we welcome the study’s discussion of this complex and important subject, and appreciate the major effort that the ICRC and the study’s authors have made, we are not in a position to accept without further analysis the study’s conclusions that particular rules related to the laws and customs of war in fact reflect customary international law.

A number of comments addressed the issue of proportionality, and correctly noted (Geoffrey Corn/Matthew Gross) that the concept is as much a part of state practice as it is based in treaty law. In addition to the Army Field Manual identified by Corn, the U.S. Navy’s Commander’s Handbook on the Law of Naval Operations provides that incidental injury or collateral damage must not be “excessive in light of the military advantage anticipated by the attack.” The concept of proportionality appears in somewhat different terms in Articles 51(5)(b) and 57(2)(a)(iii) of Additional Protocol I. Proportionality is at issue not only in battlefield applications, but in the strategic context as well, as reflected in Daniel Webster’s letter to Mr. Fox concerning the Caroline incident (noting that Her Majesty’s Government would have to show that the Canadian authorities did nothing “unreasonable or excessive”?) and in the advisory opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons (“the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law.”?)

Although time and space do not allow a complete discussion of the concept of proportionality as relates to all the questions raised by Benjamin Davis, Katharine and others, it is our position that the response to the attacks of 11 September 2001 has been as limited and as focused as possible to decisively counter the threat to the United States. The combat operations in both Afghanistan and Iraq were “swift and decisive” (as Matthew Gross referred to the war in Iraq). As relates to detainee operations and the unlawful enemy combatants at Guantanamo Bay, Cuba, it is instructive to recall that only about 700 of over 80,000 individuals who were detained in Afghanistan, Iraq and elsewhere were transferred to Guantanamo — the vast majority were screened and released.

Along those lines, several of the commentators repeated some of the allegations that have appeared in the press and in other fora about various U.S. actions. As I asked the U.N. Committee Against Torture, I would ask you not to believe every allegation that you have heard. Allegations about U.S. military or intelligence activities have become so hyperbolic as to be absurd. Critics will now accept virtually any speculation and rumor and circulate them as fact. The U.S. Government has attempted to address as many of these allegations as quickly and as fully as possible. And yet, as much as we would like to deny the numerous inaccurate charges made against our government, because many of the accusations relate to alleged intelligence activities, we have found that we cannot comment upon them except in a general way. So we ask that, when considering the “proportionality” of our actions in the global war on terror, everyone keep a sense of proportion and perspective about the relatively few actual cases of abuse and wrongdoing that have occurred. The United States is committed to the rule of law and has a well-functioning legal system to ensure criminal and civil accountability.

And speaking of criminal accountability, the comments to my post on The Meaning of Common Article Three reinforced in my mind the importance of clarity in criminal statutes and their implementing regulations. Katherine asks, “Doesn’t the U.S. Army court martial people for ‘conduct unbecoming an officer and a gentleman.'” Indeed, the Army does so, as do the other uniformed services. However, while the text of Article 133 of the Uniform Code of Military Justice (a federal law, enacted by Congress in 10 U.S.C. 47) proscribes “conduct unbecoming,” the Manual for Courts-Martial (prescribed by Executive Order 12473, April 13, 1984, to implement the U.C.M.J.) contains etailed explanations of the nature of the offense, the type of conduct that violates the article, and examples of specific offenses. As I noted in my post, the US government never prosecuted anyone under the War Crimes Act, perhaps because of the lack of clarity in the statute. I believe the amended Act goes a long way toward correcting that lack of clarity, particularly since it contemplates that the President may issue further interpretations of what constitutes violations of CA3. I concur with Non liquet, citing Marty Lederman, that simply because a provision is broad does not necessarily make it vague. But, as Alan Kaufman notes, people are “seriously divided” on many of these issues.

Finally, I do want to briefly touch on Eric Posner’s comments about the bargain theory of war. While I found his piece to be an interesting intellectual exploration of the theory underlying the law of war in general, and the Geneva Conventions in particular, I believe it was an oversimplification of the relevant considerations. Eric contends that there is a dichotomy between the bargain model, whereby one limits one’s war making ability to extract similar concessions from other states, and the universalist model, whereby individuals have certain basic rights that cannot be transgressed regardless of that individual’s conduct. But the truth is that the law of war and the Geneva Conventions have elements of both concepts. For example, as I’ve already explained the Third Convention does operate as a bargain of sorts, by for the most part reserving its protections for soldiers of States that have accepted its strictures. But Article 85 of that Convention explicitly maintains POW treatment for those who qualify even after conviction for a violation of the laws of war, an example of universalist thinking. At the end of the day, I think the United States acts true to its tradition and history in considering certain norms sacrosanct, such as the prohibition on torture, and therefore cannot be disregarded regardless of the behavior of the enemy. But I also think we act consistently with international law in denying the full protections accorded lawful combatants to terrorist groups like al Qaida.

The President’s Constitutional Authority over International Law: Some Further Thoughts

by Michael Ramsey

The excellent posts by Professors Ku, Golove and Sloss address a central constitutional issue in the law-of-war field: which branch of the U.S. government has the authority to decide what the laws of war require. Below are a few thoughts based on my assessment of the text’s original meaning (for what that may be worth).

1. Ultimate authority on the matter seems plainly vested in Congress, under its power to “define and punish” offenses against the law of nations (Article I, Section 8). The 1787 Convention consciously used the word “define” because it thought the law of nations was often too vague to provide a clear rule, and so needed a definitive interpreter; the text unambiguously places that power in Congress. Although the Bush administration seems to contest that power, at least as applied to some aspects of the military, as far as I know it’s never really explained how it gets around the define-and-punish power, and I’m not entirely sure what that argument would even look like. In any event, I’m not aware of any founding-era support for it.

2. Whether the President has constitutional power to violate the law of nations (assuming no statute defining and enforcing it) would seem to depend on the meaning of the take-care clause (Article II, Section 3), which says that the President must take care that the “laws be faithfully executed.” I think this obviously includes treaties, as the supreme law of the land (Article VI), again despite some Bush administration claims. The more difficult question arises from the unwritten “law of nations” – does it also fall under the take care clause? Despite what Professor Golove says, I think this is a very difficult historical question and the founding-era materials don’t have a lot directly on point. I would rest instead on the fact that the founding-era Americans thought the law of nations was part of the “laws” applicable in the United States, and the take care clause says “laws” without qualification, so it should include the law of nations unless there is good historical evidence that it doesn’t (and there isn’t). So I come out in the same place, albeit a bit more tentatively. (But it’s worth noting that this is not the view of modern courts, and isn’t a consensus in constitutional law scholarship).

3. Even if the President must faithfully execute the law of nations, that does not say anything about who decides what the law of nations requires. (Obviously if there is a defining statute, the President must follow the statutory definition, as the President must always follow Congress’ direction when Congress acts within its constitutional powers). Absent a statute, though, it seems that the President necessarily has the authority (as an initial matter) to decide what the law of nations requires of the executive branch – the executive branch could not function otherwise. So I think Professor Ku is surely right in his initial assessment – that the President has constitutional authority to decide how the laws of war apply to terrorists. (I would emphasize, though, that there is a difference between a good-faith interpretation, or re-interpretation, and violation or disregard). So it seems that the President would be constitutionally entitled (though perhaps mistaken in policy) to say, on behalf of the United States, that (for example) he does not see that any binding custom exists with respect to the treatment of international terrorists, either because the nature of terrorism has evolved or because no such custom ever existed. (I agree with Professor Golove that the current administration has not really made such public, good-faith case, but I could imagine it being done).

4. The critical question, then, is whether U.S. courts can override the President’s good-faith interpretations, as Professor Sloss seems to urge. Obviously Congress can override the President; and of course the President’s interpretation may not be persuasive to international actors or domestic commentators, with the accompanying reputational and other costs. But U.S. courts’ authority over the President in this regard is more difficult to pin down. There are evident practical problems with having the courts supervise the President’s conduct of war (which is really what the suggestion amounts to). Even aside from practical problems, though, one may ask where the courts would get their constitutional authority. In Marbury v. Madison, John Marshall declared the courts’ ability to make an independent judgment of the Constitution’s meaning (independent of Congress and, as he later confirmed, independent of the President as well). But Marshall, at least, did not think this same authority extended to the law of nations (or even treaties), and he thought the practice of the Washington administration confirmed his view, as he outlined in his famous speech to Congress of March 7, 1800. There he recounted the Washington administration’s handling of the British ships captured during the 1793 neutrality, and explained that the legal determination (that ships captured in U.S. waters should be restored) was made by the President, with the actual proceedings done through the courts to resolve factual disputes: “Ultimately it was settled,” he said, “that the fact[s] should be investigated in the courts, but the decision was regulated by the principles established in the executive department.” (Papers of John Marshall, Vol. 4, p. 101). Marshall then used this episode to argue that interpretation of the extradition provisions of the 1794 Jay Treaty was “a case for Executive and not judicial decision.” Marshall may have gone a bit far in applying this view to treaties (especially in the particular case), but given Marshall’s views and the lack of contrary founding-era practice (I’m not aware of any founding era-court decision overriding a formal executive determination of international law), it seems doubtful to extend the courts’ Marbury powers to international law. (To be clear, I am not saying that courts lack power to interpret international law; only that they may lack power to interpret the executive’s international law obligations differently from the executive).

I suspect that the core objection to the last conclusion is not anything found in the Constitution’s text or founding-era materials, but a sense that courts are necessary to check the President’s inevitable tendency to interpret international law to serve his own ends. But I think we (especially we lawyers) are often too quick to think the principal check can or should come from the courts. Congress, as I’ve said, has the ultimate authority and can overturn presidential interpretations (as it did in part in the McCain amendment). International opinion and domestic commentary can be important checks (as they have been in the present case), and ultimately the President (or his would-be successor) must justify his policies to the electorate. Marshall’s speech, mentioned above, came in the context of defending the supposed executive overreaching of the Adams administration; Marshall may have had a legal point, but Adams sustained heavily public criticism and shortly afterward lost his bid for re-election.

Illegal Combatants and Counter-terrorism — A Middle Way

by Charles Garraway

Like others, I have followed this week’s entries with fascination. From outside the United States, it is a pleasure to see such a spirited debate conducted in such a fine manner. It is a tribute to John Bellinger that the thoughtful tone that he set at the start has been continued.

I wish to take up two points. First, there is the issue of unlawful combatants/unprivileged belligerents. As I made plain in my earlier contribution, I agree in practice with much of what John says. However, in trying to get the message across to a European audience, it is necessary to realise the linguistic change that took place between 1907 with the Hague Regulations and 1977 with the Additional Protocols. In Hague, Chapter 1 is headed ‘The Qualifications of Belligerents’. There follow three articles dealing with the armed forces, ending with Article 3 which states ‘The armed forces of the belligerent parties may consist of combatants and non-combatants’. We tend to view that article through 21st century glasses and consider that non-combatants relate to medical and religious personnel but that was not how it was seen in 1907. Your status as a member of the armed forces was one of belligerent; your conduct decided whether or not you were a combatant. Thus logistic personnel – and even military lawyers! – would be considered as ‘non-combatants’ as they did not take a direct part in hostilities.

Although the vocabulary was already beginning to adapt prior to that date, 1977 and Additional Protocol I fundamentally changed the meaning of ‘combatant’. All members of the armed forces (other than medical and religious personnel) were now combatants by status, regardless of what they did. Everybody else was a ‘civilian’ though civilians would lose their protection as such by taking a direct part in hostilities. The word ‘belligerent’ has gone and with the change of meaning of the word ‘combatant’, there is no longer any agreed word to describe the person who takes a direct part in hostilities as a matter of conduct. In debates in the United States, he is referred to as a ‘combatant’, whether lawful or unlawful, in accordance with the Hague usage but to those brought up on a diet of Protocol I language, an ‘unlawful combatant’ has a completely different meaning. That is why I prefer to go back to the old Baxter term of ‘unprivileged belligerent’. If we have reversed the meaning of combatant, then maybe the only answer is to do the same with belligerent. Viewed in this way, much of the debate over unlawful combatancy dies away. As John Bellinger rightly says, the concept has an ancient lineage.

My second point is to agree in large measure with Ken Anderson. Counter-terrorism lies on the borderline of differing legal regimes and we need to use all the legal tools in out toolbox, not just to concentrate on one. There is indeed a place for the laws of armed conflict, as Afghanistan made clear, but there is also a place for criminal law, domestic, transnational and international, with the consequent impact of human rights law. At present, these regimes tend to rub against each other like tectonic plates with occasional earth tremors where they conflict, whether it is in the right to use force or the right to detain and prosecute. We need to work to try to produce a cohesive set of legal standards that apply across the spectrum of violence, not least so that our long suffering service personnel can know exactly where they stand. The soldier, sailor, marine or airman who is faced with the real life problems that we have been arguing over this week deserves nothing less.

More Guest Blogging By Bellinger

by Duncan Hollis

The President and the Interpretation of International Law– A Reply to Ku

by Bruce Ackerman and David Golove

[Opinio Juris welcomes Professor David Golove of New York University School of Law as a guest respondent. Professor Golove’s teaching and scholarship is focused on the foreign relations law of the United States and on constituional law.]

In his recent post, Julian asks whether the President has domestic constitutional authority to adopt a “new” interpretation of the laws of war. Even if Congress and the Judiciary have some countervailing authority in this respect, Julian suggests that the President should, at least, get a first crack at offering his own approach.

Of course, it couldn’t be more obvious that the President does have a first crack, at least as a practical matter, though he may be and indeed has been overruled by both Congress and the Judiciary from time to time (frequently in recent years). The President’s duty faithfully to execute the laws presumably gives him substantial authority, at least in the first instance, to adopt new good faith interpretations of customary international law. As Commander-in-Chief, he interprets the laws of war and makes those interpretations binding on U.S. military personnel by, inter alia, issuing military manuals. I can’t imagine why Julian thinks that this question is up for grabs.

Probably, though, Julian is contemplating a case where the President is actually violating the existing laws of war, offering not a good faith “interpretation” but a new (and presumably, from the President’s perspective, preferable) rule altogether. So, the real question is whether the President has domestic constitutional authority to violate existing customary international law. But Julian is actually not putting the question quite so broadly. Rather, he asks more narrowly whether the President can violate the laws of war in an effort to change the content of the law, which, of course, is an accepted method for changing customary international law. It seems that Julian thinks that the President should have this power. Julian may also believe that the judiciary ought to be bound by the President’s legislative choices and even, perhaps, that Congress ought to be as well (since the laws of war govern “the conduct of campaigns” in John Yoo’s expansive sense).

Of course, as anyone who has looked at the 18th and 19th century history on this point will easily recognize, Julian is wise to avoid making the broader claim that the President has constitutional authority simply to violate customary international law for any reason at all. That view would be radically out of step with original understandings and with constitutional developments over most of U.S. history. For those who think original understandings and/or historical practice are to be given great weight, this stubborn fact seems to present a large obstacle to embracing such a view.

Julian’s narrower claim, however, is more complicated. As an initial matter, it is worth noting that in recent years the President has not generally acted in a way designed to change “customary international law.” The process of customary international law formation, at a minimum, requires some degree of transparency and public justification. The Bush Administration has often preferred to act on the basis of secret legal memoranda and to offer persistent denials and obfuscation about the conduct in which it is engaging and which, if we take Julian seriously, the President is seeking to legitimize from a legal point of view. If the Administration is unwilling to acknowledge its behavior and justify its actions publicly and forthrightly, then the President is not genuinely seeking to change the law. He is just flouting it.

But returning to Julian’s main claim, it would seem that the most plausible basis for his view which he doesn’t really seek to justify only to suggest builds from the substantial role that the President actually and inevitably plays in the development of customary international law principles. If the President may play such a role when existing law is uncertain or legitimately contested, why shouldn’t he have authority simply to violate the laws of war altogether, at least if he is seeking to establish a new rule in its place?

The reason, I believe, is that this argument, instead of seeking to make a virtue out of a vice, seeks to make a bigger vice out of a smaller one. One of the most problematic aspects of the international legal system is the “democracy deficit” it creates by enhancing the law-making role played by executive officers. This feature of international relations is at the core of many critiques of international law, used as a ground for opposing, for example, expansive conceptions of the treaty power and the permissibility of international delegations. Although the problem is indeed pervasive, it is also, I believe, to a some extent inevitable. That is hardly a reason, however, to push executive power to its logical limit. Rather, doing the opposite makes far more sense. We ought to try to find ways to limit the damage to democratic values that this anomaly produces. Placing the power to violate the law in order to change it in the hands of the executive will further reduce transparency, democratic deliberation, and accountability on issues of great public importance. If the President believes that we need a new paradigm for the laws of war suited to the circumstances of international terrorism, he can bring forward a proposal to Congress, which in turn will deliberate upon it against the backdrop of a wider public debate. Why isn’t that a superior approach from a democratic point of view? Indeed, from every point of view?

Counterterrorism Going Forward

by Kenneth Anderson

My thanks to Opinio Juris for organizing this remarkable discussion, and to John and all the guest respondents and those commenting for taking part. Opinio Juris is one of the most refreshing blogs around because its bloggers have a wide range of political views, eclectic interests, and strongly held opinion – and yet its discussions are always unfailingly polite, friendly, while still erudite and scholarly. It’s always a pleasure to read. So thank you for the opportunity to be a guest here and thanks to John for being willing to address a global public in this very public way.

In this short post I want to go beyond the discussion that John has put on the table regarding the characterization of actors under the law of war in counterterrorism. I want to think in a very forward looking way about US counterterrorism policy – conceptually more than legally, and looking forward to what counterterrorism policy should be rather than looking back to justify past or ongoing practices. Clearly, for anyone who knows my writings, I tend to John’s views on many of the laws of war issues. I want to set all that aside, however, and for a moment think looking forward.

Viewed as a strategic question, counterterrorism conducted against transnational terrorist networks with transcendental religious motivations, on the one hand, but the tools and technology of globalization, has something like the following list of strategic tools:

Tools of law enforcement. These include traditional domestic law enforcement, seeking to trace the threads of terrorist cells and plots, and ordinary prosecution, trial, conviction processes in US courts. In addition, it includes cooperation with non-US police agencies – the ‘global government networks’ of police agencies. The problems with this approach include that it is post-hoc and reactive, rather than forward-looking and anticipatory; Judge Posner details the many problems in his recent books on domestic counterterrorism; in any case, it was the failed strategy up to 9-11.

Tools of war and armed conflict. By war and armed conflict, I mean the full weight of military forces against some target. Sometimes those targets will be actual terrorists – in Afghanistan, for example – and the military will be engaged in war with the terrorists. But mostly “real” war will be directed against states, at least in the first place – because that is what our military assets are largely about. The aftermath of a war directly against a state, as in Iraq, may produce a situation in which the military is fighting against insurgencies and militias, etc., including foreign jihadist fighters – and over time it might develop tools both tactical and technological for dealing with such fighting. But most of the time it seems doubtful that it will be fighting transnational terrorist groups as such. The military will mostly be about going after states (and whatever fighting with nonstate actors after the regimes falls) – either states (including failed states) that serve as safe haven for transnational terrorists or else states that threaten to supply catastrophic WMD to terrorists. The range of situations calling for ordinary war going forward, at least about transnational terrorism, is pretty limited at this point.

Tools of counterterrorism that are neither war nor law enforcement. I don’t have a good name for this category, but it seems to me that much, if not most of the action, against transnational terrorists will fall into a category that is neither of the above. It ranges from intelligence gathering activities to uses of force premised on that intelligence – uses of force that might still fall short, however, of the legal definition of armed conflict. It differs from law enforcement in that its intent is not post-hoc reaction but anticipatory and preventive. It differs from war in that although some of the actors might be military and parts of it blur with war, uses of force would tend to be more limited and not rise to the legal definition of armed conflict. Some of the activities would include surveillance and other forms of intelligence gathering, cooperation and coordinated action with non-US intelligence agencies, detention of terrorist suspects, interrogation of suspects, monitoring and action against terrorist financing networks, targeted abduction, targeted assassination, destruction of terrorist bases, equipment, and material infrastructure. This is a highly heterogeneous list.

The term ‘global war on terrorism’ describes, for the United States, both a strategic and legal position with respect to al-Qaeda as a transnational terrorist network. The United States is not at war with terrorist groups everywhere in the world, not even with all the transnational terrorist groups, but instead with al-Qaeda. Of course, al-Qaeda itself is a network, so the definition of the enemy in the global war on terror is itself porous – groups that share its aims but not its command, etc. Lots of people will have lots of views on the strategic utility of war as a prism through which to see the global struggle, but in my view is that it is very powerful and is the proper starting place. It is not the only lens through which to understand how to formulate a counterterrorism strategy, but it has the virtue, to start, of understanding things as our enemies do – as war, and as directed against us. It is no less useful as a strategic concept than conceptualizing the Cold War as a war in an important, although not exclusive, strategic sense. One may opt for some mix of offensive or defensive strategies, but the analytic power of seeing it as war in the first place seems to me plain, although I recognize that others will disagree.

Seeing the strategic struggle as war, however, does not necessarily correspond to the legal definition of war and the invocation of the law of war. The Cold War was understood as war in many strategic and analytic senses – as a matter of law, however, the entire Cold War and all its many encounters, across law enforcement, intelligence, covert action, and so on, was not considered a single gigantic, global, decades long war in the formal legal sense. The Cold War as such was not a war in the sense of the laws of war, even though there moments and places in which particular situations rose to that level – Vietnam, etc. The times and places in which the law of war formally applied were limited to situations that met the legal definition of armed conflict – and encounters between spies, intelligence gathering, even assassinations and activities by the KGB and CIA did not meet those standards.

The same is true of the global war on terror. It is a mistake, in my view, to go forward with a conception of the global war on terror in which our strategic vision of war forces us to the conclusion that the whole global war on terror is in fact war as a matter of law. The legal definition of armed conflict is narrower than the strategic application of the concept of war, and we should accept that. In that case, there are two US wars ongoing today (leaving aside what has and might happen in Somalia) – Afghanistan and Iraq. Those are the two places to which the formal law of war should be applicable. If that is the case, and if it further the case that the US intends to pursue al-Qaeda with the full range of tools described above, the question becomes, what bodies of law regulate those activities? In the case of regular law enforcement, the answer is plain and well worked out. In the case of war – ordinary war, not applying it to global counterterrorism, but the situation on the ground in the two armed conflicts, Afghanistan and Iraq, the rules of war are mostly worked out. There are questions of categorization, yes, under Geneva 3 and 4 – and it is also true that numbers of the Guantanamo detainees were picked up in Afghanistan fighting in what counts indisputably as a genuine armed conflict in which fighting is active and ongoing. The US has no obligation to release those detainees to rejoin the fight – on the most traditional definition of when a war is a legal war and when it ends – and leaving aside any existential questions about when the war on terror ends. But if the “war” is considered in the usual definition, then the rules are fairly well worked out.

The same cannot be said of the third set of tools – the heterogeneous tools of intelligence gathering and uses of force acting on that intelligence that fall short of the legal definition of war. There is some US domestic law, in national security law, much of it dating back to the Cold War – and some of it badly outdated, premised on the superpower struggle, a bipolar world, not very applicable to the new circumstances. But there are enormous and unacceptable gaps in the law in most of those areas – gaps in the law and gaps in oversight. Since much of counterterrorism seems likely to take place within those areas, those gaps and legal lacunae within US law seem to me a very bad idea. In part these gaps are a bad idea because the substantive matters – interrogation, assassination, surveillance, etc. – raise basic questions of values – it is not simply a technocratic, means-end calculation, but tradeoffs of fundamental moral goods, and the support of the American people, and sense that the decisions reflect the basic legislative process seems to me essential – just as it was in the Cold War – for sustaining the will for a long struggle.

Of course, one can simply say that much of this falls within the prerogatives of the president. In part that is probably true. That still does not seem to me the basis for a long term policy and, in any case, the Bush administration’s intractability on the issue of executive power seems to me ill-suited for a struggle which it has itself characterized as a long struggle, one that will go on over many years, over multiple presidential administrations. In the case of a long struggle that involves fundamental questions of the balance of security and liberties, of fundamental values of the American people, over a long period and not simply a short term emergency, then these questions have to be taken up by the Congress as well as the president. Hamdan said as much – parts of Hamdan seem to suggest that the Court is checking the president because Congress seems unwilling to do so, and it invites Congress to get back in the game. I think it should (and I do not say this simply as a Democrat, because I’m not one, and I fundamentally support the Bush administration’s on-offense approach) because, in a democracy, questions of such long term import finally have to be addressed by the legislature.

In any case, if the Bush administration cares about having an impact on long term counterterrorism policy – if it cares, which seemingly it often does not, more about the substance of counterterrorism policy than a knee-jerk insistence on executive power – it should recall that what lives by executive discretion also dies by executive discretion. Policies in which this administration believes fervently but which it has failed to get enacted through legislation looking to the long view, and relying instead on presidential discretion, may disappear in a flash in a new administration.

In any case, this seems to be the direction of US law and policy in any case. The Military Commissions Act is not fundamentally premised on the law of war – it is fundamentally premised on definitions of crimes and actors taken from anti-terrorism domestic laws. Material support, conspiracy – the concepts of liability in the MCA are not drawn from the laws of war, but are the beginnings of an attempt to define this third area. It does not make sense to try and shoehorn counterterrorism in this third category into either of the two existing categories – law enforcement or law of war – the attempt will not give us an adequate regulation of this third category and risks badly warping the legal terms of those two. There is also an important question, which Anthony Dworkin raises, about the interaction of US domestic law with international human rights law; I will leave that aside here given the length of this post. But I do think counterterrorism regulation should be taken up by Congress in a comprehensive way, and I think that the administration should recognize that its best chance for impacting the long term struggle against terrorism is by working to secure long term institutions that embrace, so far as possible, its strategic vision – but then, I’m an academic and can dream on. Plainly executive discretion is not – is no longer – enough.

Judicial Review and the War on Terror

by David Sloss

[Opinio Juris welcomes Professor David Sloss as a guest respondent. Professor Sloss is an expert on foreign relations law (among other areas) and he teaches at Saint Louis University School of Law. His recent articles can be found here.]

I want to thank John Bellinger for his recent posts on this blog. He has presented a very thoughtful and articulate legal defense of the government’s policies in the war on terror. Much of his legal analysis is persuasive. Even so, I am not wholly convinced. Rather than focusing on the details of particular legal arguments, though, I’d like to approach these issues from a slightly different perspective.

One reason for skepticism about some of the government’s legal claims is that the government has consistently attempted to insulate its legal arguments from judicial review. Numerous petitioners have brought a variety of claims in U.S. courts, challenging various aspects of the government’s policies on the grounds that those policies are inconsistent with U.S. obligations under international law. The government has consistently tried to prevent the courts from adjudicating the merits of these claims, both by introducing legislation to limit the jurisdiction of federal courts (the Detainee Treatment Act and the Military Commission Act) and by raising various jurisdictional and procedural objections in concrete cases. If the government really believes in the merits of its own legal positions, why is it afraid to subject its policies to legal scrutiny in a judicial forum? Indeed, if the government wants to persuade the rest of the world that the United States is genuinely committed to complying with its international legal obligations, it should welcome the opportunity to submit its policies to judicial scrutiny.

No doubt, some readers will object that it is unrealistic to expect the government willingly to subject its policies to judicial scrutiny. In fact, though, historical materials demonstrate that there was a time when the U.S. government invited judicial scrutiny of its wartime foreign policies. In the period between 1793 and 1796, France was at war with England, Spain and other European powers. The United States adopted a declared policy of neutrality. But the United States had previously entered into treaties with France that obligated the U.S. to adopt a pro-French tilt in certain respects. During this period, numerous private claimants filed claims in U.S. courts that presented tensions between the United States’ treaty commitments to France and its legal obligations as a neutral state. The claims generally centered around the activities of French privateers who had captured British and Spanish merchant ships. In the typical case, a British or Spanish ship owner (or a consular official representing the owner’s interests) would file suit against a French privateer, seeking restitution of a captured vessel, and alleging that the privateer had infringed U.S. neutrality. In response, the French privateer would invoke the 1778 treaty between the U.S. and France as a defense.

These cases from the 1790s are similar to modern war on terror cases in one key respect – in both sets of cases, questions of private rights are intimately bound up with questions of international law and U.S. foreign policy. In the 1790s, the British and French Ambassadors filed repeated diplomatic protests with the Secretary of State related to these cases. The French complained that the U.S. was not honoring its treaty commitments. The British complained that U.S. actions contravened its declared neutrality policy and its obligations as a neutral state. Surprisingly, the executive branch responded to these diplomatic protests by telling the French and British ambassadors that these were judicial questions to be resolved by litigation in U.S. federal courts. In effect, the executive branch willingly delegated to the judicial branch the responsibility for balancing the competing demands of U.S. treaty commitments to France and U.S. neutrality policy.

It is not entirely clear why the executive branch referred foreign ambassadors to U.S. courts, but let me suggest the following explanation. I believe that the Washington Administration wanted to persuade other countries that the United States took its international legal obligations seriously. Administration officials recognized that if the executive branch tried to resolve the disputes between French privateers and British ship owners — which is basically what the French and British Ambassadors asked the government to do — the British would protest if we ruled in favor of the French, and the French would protest if we ruled in favor of the British. By referring both sides to the courts, the executive could plausibly claim that it was simply trying to ensure that the relevant law would be applied in an evenhanded manner by a neutral adjudicator. This approach was quite successful: the Washington Administration was able to persuade both sides in a heated war that the United States was committed to complying with its international legal obligations.

Obviously, the current situation differs in significant respects from the problems confronted by the Washington Administration. Even so, there is an important lesson to be learned here. If the government wants to persuade the rest of the world that the United States is committed to complying with its international legal obligations, it can promote that objective by inviting judicial scrutiny of U.S. policies in the war on terror – at least in cases where those policies are intimately bound up with issues of private rights and international law. In contrast, continued resistance to judicial oversight reinforces the suspicion that the government is not persuaded by its own legal arguments.

Immunities and the Development of International Law

by Eric Posner

John Bellinger’s latest post raises two interesting questions, the first about the function of immunities and the other about the role of the executive branch (specifically, the State Department) in litigation against foreign interests.

The immunities rules straightforwardly recognize that what we traditionally regard as core features of judicial competence do not extend, at least not fully, to foreigners. We don’t usually want American courts adjudicating disputes between Chinese citizens and the Chinese government, or between American citizens and the Chinese government, even when it is clear that the Chinese government has injured the citizen in question, in a manner that violates American law or international law. There are, of course, exceptions, but the immunity rules remain generous.

Well, why, anyway? The answer is usually put in terms of fear of offending foreign sovereigns, but governments offend foreign governments all the time, and a general concern about offending foreign sovereigns is too broad to explain why there are exceptions to the immunities rules. Another standard answer is that courts should avoid becoming “entangled” in foreign relations, but again courts become entangled in foreign relations, at least potentially, whenever a foreign citizen is involved in litigation, in whatever capacity, and no one thinks that courts should refrain from taking jurisdiction in all cases that involve foreigners, or that could touch on foreign interests—indeed, courts have an obligation to take jurisdiction when foreigners are plaintiffs and they have a valid claim under American law.

The answer, as it so often does in international law, lies in the notion of reciprocity. The United States sees advantages in subjecting foreign governments (officials, instrumentalities, etc.) to American law and American judicial process in many situations, but also prefers that the American government (officials, instrumentalities, etc.) be immune from foreign law and foreign judicial process in many situations. The trick has been to determine areas of overlapping interest, where reciprocal acquiescence in foreign judicial process is in the joint interest of the states in question. Commercial activity turns out to be an obvious such area: commercial norms (these days) are relatively uniform, and foreign corporations would have trouble entering contracts if they were not subject to local judicial process. But in all the areas where governments disagree as a matter of policy, the infliction of judicial process on a foreign leader because he violates domestic norms embodied in domestic law, is conceptually no different from applying economic sanctions, diplomatic pressure, and so forth, against states whose behavior we do not like—subtle and difficult tasks for which the courts, applying general domestic law, are unsuited.

An implication of this is that, to the extent that domestic litigation implicates foreign interests, courts should be highly sensitive to the expressed views of the executive branch, which can take account of—as John notes—the risk to American interests if the foreign state retaliates either in kind, by subjecting Americans to judicial process who would formerly have been immune, or along some other dimension of international cooperation. This is true, regardless of whether the FSIA or some other immunity rule applies, and even regardless of whether there is a foreign defendant. It needs to be acknowledged that this weakens the rule of law. If the executive branch has a large role in litigation that affects foreign interests, outcomes will reflect policy and political considerations to a greater extent then if it does not. But this is the price one needs to pay in order to conduct foreign relations in a sensible manner. Courts have no ability to evaluate whether taking jurisdiction over a foreign sovereign or foreign official in a given case is likely to make Americans more or less vulnerable abroad.

I should note parenthetically that the ways in which the U.S. government and foreign governments, over the years, have intervened in order to control the way that courts take jurisdiction when foreign interests are involved is a clear example of how executive action contributes to the development of international law. So I think Julian Ku’s earlier post is right on the mark. This is, of course, not to deny that if foreign states reject the U.S. executive branch’s assertions (always advanced as “interpretations”) about the proper rules governing immunities, those assertions will not in the end affect international law. This process is no less important when treaties are involved, and so the interesting question is whether over the next years—as China and Russia and other countries struggle with terrorism—foreign states will acquiesce in the current American interpretation of the Geneva Conventions, or reject it. The United States presumably is prepared for future cases where Americans who join al Qaida and other terrorist groups are subjected to Guantanamo Bay-like treatment by foreign states, and will presumably not object when those foreign states say that they are merely adopting the American interpretation of the laws of war. The laws of war will “develop,” as they should, so as to be more appropriate for types of threats and conditions not anticipated by earlier generations (as Ken Anderson notes), and at the hands of governments as well as courts, domestic bodies as well as international bodies.

For an academic argument that judicial deference to the executive branch in foreign relations litigation can be derived from the policies underlying Chevron (written with Cass Sunstein), see here. For a critique of this argument by Derek Jinks and Neal Katyal, see here.

Immunities

by John Bellinger

Since readers have no doubt tired of the law of war by now, I would like to change topics and address some of the immunity issues that confront L on a regular basis. Most of you are familiar with the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1330, 1602 et seq., which codified the restrictive theory of the immunity of states and established procedures for bringing suits and enforcing judgments against foreign states (including their political subdivisions and agencies and instrumentalities). A principal purpose of the FSIA was to provide courts with the tools to determine when immunity would apply in suits against foreign states, obviating the need for the Executive Branch to file suggestions of immunity on behalf of foreign states. But L, in conjunction with the Department of Justice, continues to play an important role in providing guidance to our courts on the various immunity issues they confront.

The immunity of foreign government officials is one example. The FSIA does not by its express terms address the immunity of such officials. Several Executive Branch officials who worked on the formulation of the FSIA wrote that it did not deal with such officials when they published a review of pre-FSIA sovereign immunity decisions in the Department of State’s 1977 Digest of international practice. And, the House Report on the FSIA stated that it would have no effect on diplomatic or consular immunity. Nevertheless, in Chuidian v. Philippine National Bank, 912 F.2d 1095 (1990), the Ninth Circuit concluded that the FSIA should apply to foreign government officials as “agencies,” so as to prevent an “end run” around state immunity. In that case, this approach produced the same result — immunity — advocated by the Executive Branch, but on a theory — applicability of the FSIA — that the Executive Branch did not advance. The point is not academic, because the FSIA treats “agencies” differently than other components of a state and would not, for example, accord immunity to officials for commercial activities undertaken while merely carrying out normal governmental functions. Since 1990, some other circuits have adopted the Chuidian reading of the FSIA, such as the D.C. Circuit in El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668 (1996) and the 6th Circuit in Keller v. Cent. Bank of Nigeria, 277 F.3d 811 (2002). Just this past November, at the request of Judge Pauley of the Southern District of New York, the Executive Branch reiterated the position it advanced in Chuidian – that the immunities of foreign government officials generally derive from federal common law as informed by international custom, rather than the FSIA, in a Statement of Interest filed in Matar v. Dichter, S.D.N.Y. 05 Civ. 10270 (WHP). This approach avoids some of the obvious problems of the Chuidian approach and is more consistent with the position taken by the United States on behalf of its own officials when they are sued abroad.

In addition, certain categories of foreign officials are accorded immunity by more specific legal regimes. Diplomatic and consular officers enjoy immunities under the Vienna Conventions on Diplomatic and on Consular Relations, respectively, bilateral treaties with certain countries, and in some instances customary international law. These sources reflect some of the oldest principles of international law, which recognize the importance of facilitating a sovereign state’s unimpeded representation within each other’s jurisdictions. The Executive Branch does not necessarily play a role in cases involving the immunities of such officers, because we expect the states or officers involved to retain private counsel for the officers’ representation. The State Department does, however, certify the status of diplomatic and consular officers and may work with the Department of Justice to file a statement of interest addressing issues in a case. For example, we have filed to address whether a particular type of action by a consular officer should be regarded as performance of a consular function falling within the scope of a consular officer’s immunity for official acts. We also, when necessary, advise arresting officers and prosecutors of the applicable criminal immunities of diplomatic and consular officers. This advisory practice significantly reduces the need for criminal immunity issues to be litigated in court.

Another basis for foreign government officials’ immunity that is independent of the FSIA is the doctrine of head-of-state immunity. When applicable, it entails full personal immunity from the jurisdiction of U.S. courts. The Executive Branch has a longstanding practice of affirmatively “suggesting” head-of-state immunity to our courts when a person who enjoys the immunity has been served with judicial process. The practice dates at least to the mid-1960s, when such suggestions were made with respect to the South Korean Foreign Minister (1963) and King Faisal of Saudi Arabia (1965). Since then, we have suggested head-of-state immunity in some thirty cases which have dealt with heads of state, heads of government, the spouse of a head of state, and foreign ministers. The doctrine of head-of-state immunity recognizes the unique role played by government leaders and the special sensitivities of exposing them to civil litigation in foreign courts, particularly while they are still in office.

Another immunity that may be accorded to foreign officials is special mission immunity, which is also grounded in customary international law and federal common law (Like most countries, the United States has not joined the Special Missions Convention.). The doctrine of special mission immunity, like diplomatic immunity, is necessary to facilitate high level contacts between governments through invitational visits. The Executive Branch has made suggestions of special mission immunity in cases such as one filed against Prince Charles in 1978 while he was here on an official visit. Kilroy v. Charles Windsor, Prince of Wales, Civ. No. C-78-291 (N.D. Ohio, 1978). This past summer, in response to a request for views by the federal district court for the D.C. Circuit, the Executive Branch submitted a suggestion of special mission immunity on behalf of a Chinese Minister of Commerce who was served while attending bilateral trade talks hosted by the United States, in Li Weixum v. Bo Xilai, D.C.C.Civ. No. 04-0649 (RJL).

Our suggestions of immunity normally respond to requests from a foreign government made after its official has been served with a complaint in a civil action. We usually ask that the request be conveyed through a diplomatic note, with all relevant information and documents, including of course the summons and complaint. If we agree that a suggestion of immunity should be filed, the Justice Department submits one to the court on behalf of the Executive Branch. These filings are typically very short because, once we have determined that an official enjoys immunity, we expect the court to defer to that decision, in accordance with well-established judicial doctrines tracing back to The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).

Our immunity practice also encompasses international organizations (IOs). Here the governing standard is usually the International Organizations Immunities Act (IOIA) rather than the FSIA. If IOs are sued in our courts we normally expect them, like foreign governments, to appear in court to assert their own immunity. The United Nations is an exception, however. Under Section 2 of the UN Convention on Privileges and Immunities, the UN has complete immunity from suit in the US, including “from every form of legal process.” Officials of IOs generally have official acts immunity, but a small number of officials of the UN and the Organization of American States have full diplomatic immunity pursuant to our headquarters agreements with them.

Finally, back to the FSIA. While it ended the Department of State’s practice of suggesting immunity on behalf of sovereign states, it by no means ended the Department’s participation in litigation against foreign states. Along with the Department of Justice, L works to ensure that the FSIA is interpreted and applied properly, bearing in mind its purpose and the reciprocity and foreign policy issues that could arise from the decisions of our courts. We do not keep track of all of the many cases in our courts that involve FSIA issues, but we participate as amicus when our views are requested by the courts and occasionally on our own initiative or in response to a request by parties to the litigation. Most recently, for example, in response to a Supreme Court request for views with respect to two petitions for certiorari (Nos. 05-85 and 05-584), the Executive Branch argued that the Court should address two 9th Circuit decisions involving whether a Canadian entity — Powerex Corporation — is an “organ” of British Columbia and, therefore, an “agency or instrumentality” of a foreign state under the FSIA.

The sovereign and official immunity rules the United States applies domestically have important implications for how the United States and its officials are treated abroad. Thus immunity outcomes in our courts are relevant not merely because of the potential immediate foreign policy consequences of U.S. exercises of jurisdiction. In cases in which immunity precludes litigation, whether in the United States against foreign states and their officials or abroad against the United States and its officials, we may also — in appropriate cases — look for other ways to help resolve the underlying dispute. In addressing immunity questions we carry out research and analysis of treaties and international practice with the goal of establishing principles that will benefit all countries. Recent developments that we have followed with particular interest have included the February 2002 decision of the International Court of Justice (ICJ) in the “Arrest Warrant” or “Yerodia” case (Democratic Republic of The Congo v. Belgium),
in which the ICJ ordered Belgium to cancel a warrant for the arrest of the DRC’s Foreign Minister after concluding that the Foreign Minister enjoyed absolute criminal immunity and inviolability under international law when abroad. Another case we have examined is the U.K. House of Lords’ decision in the civil action Jones v. Ministry of Interior (of Saudi Arabia), in which their Lordships discussed The Arrest Warrant Case at considerable length as part of a comprehensive examination of the immunity of foreign government officials generally.

As you can see, we have a robust litigation practice involving the immunities of foreign states and international organizations and their respective officials. It is a rich and intellectually rewarding area of work, and I welcome your comments on it.

Can the President Change the Laws of War?

by Julian Ku

Unprivileged Belligerents (Or Illegal Combatants)

by Kenneth Anderson

[Opinio Juris welcomes Professor Ken Anderson as a guest respondent. Professor Anderson teaches at American University’s Washington College of Law. He also is a Research Fellow at the Hoover Institution at Stanford University. He regularly blogs at his Ken Anderson’s Law of War blog]

I am in agreement with John’s characterization of the legal and historical-legal status of the category of unprivileged belligerency. I would add just a couple of points on that issue and then use it as a springboard to a slightly broader comment on what appears to be the evolution of the administration’s position on how legally to regard detainees taken in counterterrorism operations.

I confess that I was quite astonished the first time I heard challenges made following 9-11 to the very idea of the legal category of illegal combatant or unprivileged belligerent. It is so long grounded in the laws and customs of war that it was very puzzling to me how anyone could raise a question about the existence of the category, save as a purely strategic attack on holding detainees. As I read further into these arguments, I understood that in part this arose from journalists, lawyers unfamiliar with the law of war, and others who mistakenly believed that the law of war existed in total in the four Geneva Conventions, and perhaps Protocol I. So, for example, an editorial in the Economist a couple of years back announced breathlessly, if ill advisedly, that the terms “unprivileged belligerent” or “illegal combatant” were nowhere to be found in the four Geneva Conventions: well, neither are the term “war criminal” or “war crime,” but of course they have an ancient legal meaning.

The idea in particular that if one flunks the test of the Third Convention, one is thereby a civilian protected under the Fourth Convention makes no sense either historically or as a matter of legal incentives. One has a status if one flunks the test of legal combatancy under Geneva Three. A person who takes active or direct part in hostilities is not a civilian, the person is a combatant. Having flunked the test for legal combatancy under Geneva Three, article 4, the person remains a combatant – but an illegal one. The charge is sometimes made that if the person who flunks Geneva Three is not a civilian under Geneva Four, then that would mean that a person lacked a status altogether. On the contrary, the person who flunks Geneva Three has a very particular status – the status of unprivileged belligerent. It surprises me particularly that the argument would now be raised that illegal combatants are actually civilians under the Fourth Geneva Convention when, as I recall discussions among friends and acquaintances in the prosecutor’s office in the Yugoslavia Tribunal in the mid-90s, such an argument must surely be unavailing in the case of defendants in that tribunal because it would increase incentives to violate the laws of war.

The fundamental reason why these kinds of ungrounded legal arguments have gained much ground in the past couple of years is, however, not simply a lack of knowledge, as in the case of journalists or lawyers not expert in the laws of war. It stemmed from a wrong assertion by the administration that the Geneva Conventions did not apply to the war on terror. This was untenable from the beginning – to announce that the war on terror was a war, but then to announce that the laws of war did not apply. The administration was forced to backtrack – but by then the damage was essentially done, with the result that not just the Bush administration, but the US government, including its military lawyers and others in government, had essentially lost “ownership” of the laws of war. Given the opening of this error, it allowed a wide variety of parties to assert less legally grounded reinterpretations of the laws of war and have them be taken credibly. By the time the administration moved to admit it was wrong, momentum in declaring the meaning of the laws of war had moved outside any precinct of the US government.

Nonetheless, the basic assertion of unprivileged belligerency is correct, insofar as the situation is one of war. The question is not the category of unprivileged belligerency, but instead who is entitled to make such a legal determination and what it means. Again, much criticism has been leveled at the US government for stating that the president or secretary of defense could make such a determination. As a policy matter, I have always agreed that the proper way to resolve these status issues was in accordance with the quick, confined process that the US military had established in its 1990s regulations, calling for a three officer panel in cases of doubt – and at the time, I never had any impression that any human rights group or the ICRC had any doubts as to the validity of those regulations as meeting the obligations of Article 5 of the Third Geneva Convention – certainly those regulations went beyond what the British did in the First Gulf War in holding Article 5 hearings, and I am unaware of any criticism at the time of those hearings. I believe the administration was wrong as a matter of policy not to follow those regulations and instead proceed by designation. Nonetheless, as a strictly legal matter, a literal reading of Article 5 does not require a hearing by a tribunal in every case to determine status – but only in cases of doubt, and it does not, on a strict reading, require that the matter of doubt be determined by a tribunal, either. To say that the administration violated Article 5 as a legal matter was, and is, simply wrong as a matter of the legal text.

If one proceeds by the law of war route in dealing with Al Qaeda detainees, then one ought to proceed as follows: Detainees would be designated as illegal combatants by a hearing and detained; the terms of detention, including interrogation, would be governed by Common Article Three; trial for crimes committed as an unprivileged belligerent would be conducted under Common Article Three in accordance with the customary law minimum procedures found under Article 75 of Protocol I, which article has been acknowledged by the United States as customary law despite its non-acceptance (correct, in my view) of Protocol I – but which is far more minimal in its trial requirements than what the US has put in place in the form of military commissions.

Where things are moving under the Military Commissions Act is different, however, and that Act seems to reflect a general sense that the paradigm is not always war, either practically or legally. The MCA does not use the traditional definition of a combatant – one who takes active or direct part in hostilities – as its fundamental touchstone for liability. It is not especially focused upon combat as such. Rather, the MCA uses definitions of terrorism and terrorist often taken out of domestic anti-terror laws – in particular, concepts such as “material support” of terrorism, and related concepts that, while making much sense as a matter of domestic criminal law, are not grounded in the laws of war. They are getting at quite different forms of conduct that those of combatants, legal or illegal.

The reason for this, quite simply, is that we are collectively coming to understand that much of what we call counterterrorism is not and will not be war. The concepts of the laws of war – grounded in combatancy, legal or not – will not apply very effectively to activities which will often be about conspiracy, material support, financing, sheltering, and so on. At the same time, there is a wide recognition – I hope – that counterterrorism will be as ineffective as it was up until 9-11 if it flips back into the law enforcement-only mode of reactive, post-hoc enforcement. There will be parts of counterterrorism which will be real war, on real battlefields – but it will only sometimes be directed against terrorists as such, and more often, as real warfare, directed against states that harbor terrorists or states that threaten to supply them with weapons of mass destruction. There will also be parts of counterterrorism which will be about genuine law enforcement, Miranda warnings, charges filed, prosecutions in regular courts. But there will also be – and this is what we are struggling to figure out – a broad middle ground of counterterrorism activity which is neither law enforcement (we are not looking to arrest people, but to kill them), nor war (the use of violence does not rise to the legal definition of armed conflict). It includes our questions about surveillance, detention, abduction, targeted assassination, destruction of terrorist property, interrogation, and ultimate release, and many other things. We do not have a worked out body of law to govern this area, either domestically or internationally. This is, however, where some of the most important matters of counterterrorism policy in the future are likely to take place.

I started this post in quite a different place – the longstanding legal category of unprivileged belligerency. I have wound up calling for a new body of domestic counterterrorism law, to address the questions that are not well addressed by the law of war, because, as we are gradually recognizing, forcing the legal paradigm of the laws of war to cover situations that are often not really war does not finally work. The MCA in part begins to recognize this, but in a passive, unstated way – in its definitions of status such as material support, for example. The laws of war work pretty well when applied to actual war (leaving aside the monumental problem that John and Eric have both addressed, which is what happens when you decide that the laws of war are not really reciprocal, and only one side really has to follow them) but they do not work especially well when applied to counterterrorism that is not really war, but something else. It is a mistake to try and reshape the laws of war to fit that something else, and it would be a far better idea to establish something new.

Some Questions About Unlawful Combatants

by Michael Ramsey

[Opinio Juris welcomes Professor Michael Ramsey as a guest respondent. He is a professor of law at San Diego School of Law and an expert in foreign relations law.]

My thanks to Opinio Juris for setting up this fascinating exchange and for inviting me to participate, and to John Bellinger for taking time to provide such thoughtful posts. As somewhat of an outsider to this area (my principal field is the constitutional law of foreign affairs), I find that I have more questions than answers.

Let’s assume there is a category of people who take active part in combat but are not covered by the Third Geneva Convention (because they fail the test of its Article 4) or by Common Article 3 (because the conflict is “of an international character”). It seems fairly inescapable that there is such a category (whether or not Taliban or al-Qaeda fighters are in it). Unless they are covered by the Fourth Geneva Convention, fighters in this category aren’t protected by the text of the Geneva framework. It also seems inescapable that, prior to Geneva, the extensive protections contained in the Fourth Convention did not apply to irregular fighters (that is, those who would fail the Article 4 test). The Fourth Convention’s text seems unclear on whether it covers such persons, since it covers “civilians” (which might or might not include irregular fighters). Do commentators critical of the U.S. position contend that the Fourth Convention’s signatories in 1949 intended to extend its elaborate protections to irregular fighters, contrary to traditional practice? Is that how the Fourth Convention was interpreted immediately after it was ratified? If not, what theory of interpretation allows us to be so certain of today’s meaning? (And for that matter, even if the intent was clear in 1949, are we certain that treaties’ meanings can’t evolve to adapt to new circumstances, as is often said of the Constitution?) These aren’t meant as rhetorical questions, as I haven’t studied the history of Geneva, but I have also not seen much reliance upon it.

On the other hand, for Mr. Bellinger’s side, if the Fourth Convention does not cover persons in this category, doesn’t that create a strange asymmetry: irregular forces in a civil war have the protections of Common Article 3, but (if the U.S. position is right) irregular forces have no protection at all in an international conflict? Is there any evidence that Geneva’s signatories wanted to give more protection to irregulars in civil wars than otherwise? Is it even plausible that they could have had this intent – what could possibly motivate it? Isn’t the asymmetry better explained either by saying that the Fourth Convention applies to irregulars (which you don’t want) or that the Common Article 3 protections were already understood by Geneva’s drafters to apply in international conflicts as a matter of customary law? If the latter explanation is true, though (and I must say, off the top of my head, it seems pretty plausible), then the Taliban and al Qaeda necessarily have at least the Common Article 3 protections, whether or not that Article itself technically applies to them. And if that is right, didn’t the Supreme Court get it basically right in Hamdan, whether or not it was correct on the “not of an international character” characterization of the al Qaeda conflict? Of course, it may matter for U.S. domestic law whether the protections come from the treaty itself or from customary law, but it should not matter to the United States for international purposes. So I guess I’m puzzled as to how the U.S. can maintain that the Taliban lack the protections of the Fourth Convention without acknowledging a customary law amounting to the substance of Common Article 3 for all fighters (including al Qaeda) in international conflicts.

In sum, for both sides: isn’t it plausible that Geneva’s drafters envisioned a middle ground between your claims – all fighters would get the substance of Common Article 3 protections, in international conflicts from pre-Geneva customary law and in non-international conflicts because Common Article 3 extended it to them; and fighters who complied with the requirements of Article 4 of the Third Convention would get that Convention’s additional protections?

The Bargain Theory of War

by Eric Posner

John’s most recent post raises the question of the nature of the “bargain” theory, as he puts it, of the Geneva Conventions:

In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore the laws of war, and you cannot seek the status given to lawful combatants. POW status is perhaps best seen then as an incentive to follow the rules in armed conflict.


I like this theory, but it is worth pointing out that many people do not like it, as it is in tension with the universalistic aspirations of human rights law, and perhaps of the laws of war themselves. It is worth considering whether the bargain theory is really sustainable.

The implicit premise of the bargain theory is that belligerents (including non-state actors) on both sides of a conflict are worse off if they use the most aggressive tactics and weapons at their disposal, than if they engage in mutual restraint. Consider the tactic of dressing like civilians. A military force, especially a guerilla group, can gain much from engaging in this tactic. The soldiers, by disguising themselves as civilians, might avoid being detected until they have obtained a tactical advantage. They also might induce the other side to kill civilians, which may reduce its support among the local population. Also, of course, an impoverished guerilla group saves the costs of purchasing and maintaining uniforms. I believe that the German army, during the Battle of the Bulge, adopted this tactic in order to penetrate allied lines. But regular armies tend to prefer to wear uniforms for a variety of practical reasons, and so dressing like civilians is mainly a tactic of insurgencies and guerillas.

If soldiers on one side only can use the tactic of disguising soldiers as civilians, then that side gains a militarily advantage. So predictably soldiers on the other side would adopt this or similar tactics in return. The result is that neither side will gain an advantage, while the war will be generally more destructive, with more civilians killed as a result of the confusion about who is a combatant and who is not. The laws of war thus prohibit soldiers from disguising themselves as civilians, an effort to give both sides an incentive to choose less destructive rather than more destructive military tactics. This logic can be extended to many of the other rules in the Geneva and Hague Conventions, as well as the general principles of the laws of war.

But if this is true, it necessarily follows that when one side breaks the rules, the other side must respond in kind. In the current conflict, the United States retaliates against al Qaida, and on John’s theory, the Taliban, for their violations of the laws of war, by depriving captured combatants of POW status—which seems more reasonable and effective than responding in kind by dressing American soldiers in civilian clothes, which in any event is prohibited (as well as pointless). The lack of command structure, if that is the case, is also a key point: if there is no command structure, then American forces cannot expect the enemy to reciprocate America’s own self-restraint, as required by the laws of war. So, again, under the bargain theory, there is no reason for the U.S. to extend POW protections to enemy combatants.

The logic extends farther than the position of the American government, however. The bargain theory, as described by John, gives the victim of law-of-war violations (the United States, here) only one, rather weak tool, for retaliation—elimination of POW status, plus the right to punish war criminals if they are captured. Yet the logic of the bargain theory implies that if this tool is too weak, the United States ought to be allowed to do much more. Put differently, if al Qaida and the Taliban have violated their side of the “bargain,” why should the United States comply with its side of the bargain? Why should the United States feel bound by any of the laws of war in the conflict in Afghanistan, including common Article 3 and, for that matter, the traditional law-of-war principles of proportionality and necessity? If the United States—and other countries, too—made clear that they would retaliate against law-breaking states and non-state entities, by refusing to extend any of the protections of the Geneva Conventions to the law-breakers, wouldn’t this threat in the long run reduce, rather than increase, the costs of war, by more effectively deterring belligerents from breaking the laws of war? This is what the bargain theory implies.

Of course, the Geneva Conventions do not permit such reprisals. They give the bargain theory only limited play by restricting the ways that a belligerent can retaliate for law-breaking on the other side. History, on the other hand, shows that tit-for-tat retaliation for violations of the laws of war has been common. If the bargain theory is accepted, the Geneva Conventions are open to criticism, for excessively restricting reprisals, and the effort to interpret them aggressively as reflecting the bargain theory to a greater extent than they explicitly do, can be defended as bringing them into line with historical practice and the moral logic of the bargain theory.

This is, I think, the source of the uneasiness that many people feel about the bargain theory in general, as well as the type of argument that John has made. It also explains why so many people reject the bargain theory and argue that a belligerent must comply with certain constraints regardless of how the other side acts. This kind of thinking makes no sense from the perspective of the bargain theory because it simply gives the other side a license to do whatever it wants, so that civilians will be worse off in the long run. On the other hand, no government seems willing to explicitly endorse the bargain theory all the way down, suggesting that the bargain theory, at some level, is not politically sustainable.

The reason, then, that some advocate treating all captured belligerents as POWs, and the like, is that they implicitly reject the bargain theory and embrace instead a universalistic interpretation of the laws of war, according to which people have certain basic rights regardless of whether they take the bargain. Ironically, John does not reject this universalistic view: he simply argues that those basic rights are more limited than his critics say they are. But, if this is right, then the argument should be about the scope of the bargain theory, and the location of the floor—those rights that one cannot give up no matter how bad one’s conduct—and John cannot expect his critics to accept the bargain theory without further defense.

Consider again the quotation with which I started. The quotation above sounds reasonable (and I believe it is reasonable) but the choice made by, say, a Taliban soldier is either to obey his commander or not obey his commander, which I suspect is not a choice at all. An ordinary soldier cannot be expected to decide to purchase a uniform and wear it in defiance of the orders of his superior, and while his comrades continue to wear civilian clothes. (And what uniform would he buy, anyway?) So it is the Taliban leadership that decides whether to accept the bargain, while the low-level soldiers bear the consequences of the leadership’s choice. Such is always the case in war, but this is another reason why many readers will reject the bargain theory in the hope that, somehow, the universalistic view can be made to stick.

Unlawful Enemy Combatants

by John Bellinger

In this post I would like to take issue with the suggestion that the United States invented the concept of “unlawful enemy combatants” to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I fear that this has become conventional wisdom among critics of U.S. policy. In fact, the distinction between lawful and unlawful enemy combatants (also referred to as “unprivileged belligerents”) has deep roots in international humanitarian law, preceding even the 1949 Geneva Conventions. The Hague Regulations of 1899 and 1907 contemplated distinctions between lawful and unlawful combatants, and this distinction remains to this day. As Professor Adam Roberts told the Brookings Speakers Forum in March 2002, “There is a long record of certain people coming into the category of unlawful combatants— pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists.”

I frequently hear the question, “Why not consider all captured belligerents, lawful or unlawful, ‘prisoners of war’?” It is not immediately clear why some advocate such a move. Prisoners of war can be held until the cessation of hostilities, and, ironically, many of those advocating for POW status for Taliban and al Qaida forces object to that basic principle. Moreover, I question whether those who insist that the Taliban and al Qaida be treated as POWs have thought through the practical consequences. Do proponents of POW status for al Qaida detainees expect them to be provided with all the benefits accorded to POWs under the Third Convention, despite their failing to follow the laws and customs of war?

More critically, though, the drafters of the Third Geneva Convention were aware that they were not drafting the treaty in a way that would ensure that everyone who took up weapons on a battlefield would receive POW status. To begin with, Common Article 2 of the Conventions limits the application of the vast majority of provisions, including protections to be provided to POWs, to armed conflicts between two or more High Contracting Parties. Thus, POW status is limited to belligerents engaged in international armed conflict. The U.S. Supreme Court has decided that the U.S. conflict with al Qaida is governed by Common Article 3. Because the Court has found that the conflict with al Qaida is not one between nations, but instead a Common Article 3 conflict, al Qaida detainees are not entitled to POW protections under the Third Convention. This point has been recognized by posters earlier this week, such as Marko.

Moreover, Article 4 of the Third Convention affirms the long-standing distinction between lawful and unlawful combatants because it limits “prisoner of war” status to lawful combatants, such as members of the regular armed forces of a Party to the Convention. The underlying concept here is simple –unlawful combatants should not be provided combatant immunity during wartime, and should be held criminally accountable for their acts of war. By contrast, AU Professor Robert Goldman explains that lawful combatants have combatants’ privilege, which “immunizes members of armed forces from criminal prosecution by their captors for violent acts that do not transgress the laws of war, but might otherwise be crimes under domestic law.”

An examination of the nature of al Qaida and its members results in the conclusion that they are not entitled to POW status under Article 4. Al Qaida members are not members of the armed forces of a party to the Geneva Conventions, meaning that they are not entitled to protection under Article 4(A)(1). Al Qaida has also failed to adhere even to the most fundamental tenets of the laws of war—including the critical need to maintain distinction between civilian objects and military objectives—and have blended into the general population, deliberately choosing not to wear fixed distinctive signs or carry arms openly. Under such circumstances, the United States is correct in denying al Qaida fighters the protections owed prisoners of war.

Although most international legal scholars agree that al Qaida detainees are not entitled to POW status, I recognize there is more debate regarding the status of the Taliban detainees. The Taliban did not display the indicia of regular “armed forces of a party” for purposes of Article 4(A)(1). The armed forces of Afghanistan ceased to exist as such with the dissolution of former President Mohammad Najibullah’s armed forces in the mid-nineties, and were replaced by a patchwork of rival armies. Although the Taliban were the most powerful of these rival armies at the time of the U.S. invasion, it is does not appear that they ever rose to the level of the official armed forces of Afghanistan. Nor were they “regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power,” entitled to POW protection under Article 4(A)(3). The Taliban do not possess the attributes of regular armed forces, as they do not distinguish themselves from the general population, or conduct their operations in accordance with the laws and customs of war.

The Taliban is better conceptualized as a militia belonging to a Party to the conflict, which would be eligible for POW protection under Article 4(A)(2) if they used a command hierarchy; wore a uniform or distinctive sign; carried arms openly; and observed the laws and customs of war. The Taliban, however, fail to meet at least two of these conditions: specifically, the Taliban do not distinguish themselves from the general population, nor do they obey the laws and customs of war. Contemporary news reports from the Allied invasion of Afghanistan indicate that the Taliban dressed like civilians, and in fact used this similar dress to blend into the civilian population to evade capture. Worse still, they have targeted and continue to target civilians as such in violation of the laws of war, having adopted suicide bombing techniques similar to those used by al Qaida. These types of transgressions explain why the United States believes that Taliban detainees do not enjoy POW status under the Third Convention.

Assuming that the Taliban were the armed forces of Afghanistan, however, they still do not qualify for POW status because they fail to meet many of the fundamental criteria for POW status under the Third Convention; specifically, the Taliban lacked the command structure, distinctive uniforms, and compliance with the laws and customs of war which characterize regular military forces. Some have argued that these additional factors would not preclude POW status under Article 4(A) (1) because that provision omits the list of requirements found in Article 4(A) (2). This is a difficult question, but as Jean Pictet’s commentary on the Third Convention explains, it seems the drafters of the Convention had an expectation that the armed forces of a party would generally meet the requirements contained in Article 4(A)(2), and it’s unlikely they envisioned granting POW status to groups that openly flout these requirements.

In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore the laws of war, and you cannot seek the status given to lawful combatants. POW status is perhaps best seen then as an incentive to follow the rules in armed conflict. It also is a way to protect civilians more effectively: when combatants masquerade as civilians to mislead the enemy and avoid detection, civilian suffering increases as a tragic consequence of the failure of these combatants to adhere to the fundamental law of war principle of distinction between combatants and the civilian population.

Long before the war against al Qaida began, the United States forcefully insisted that this incentive to follow the rules remain strong by limiting these extensive treatment protections to those who generally follow the rules of warfare. President Reagan decided not to submit Additional Protocol I of the Geneva Conventions to the Senate for ratification in part because he feared that the treaty contained a disincentive to follow the laws of war by extending combatant status in certain cases to those who do not follow the rules. As former Department of State Legal Adviser Abe Sofaer explained, “Inevitably, regular forces would treat civilians more harshly and with less restraint if they believed that their opponents were free to pose as civilians while retaining their right to act as combatants and their POW status if captured.”

I believe that the bargain of the Third Convention works: follow the laws of war to gain their robust protections and privileges. Those who believe in the rules should insist that incentives to follow those rules not be weakened.

I wanted to add a final thought about the recent Israeli Supreme Court decision in Public Committee against Torture in Israel v. Israel, where it has been reported that the Court concluded there was no category of individuals labeled unlawful enemy combatants. That is not quite what the court held. Instead, the Court held that combatants not in regular armies or militias meeting the requirements of Article 4(A)(2) of the Third Convention were in fact civilians, who lost their comprehensive protections against attacks, “for such time as they take a direct part in hostilities.”

To begin with, it’s important to stress that the Israeli Court largely agreed with our views regarding treatment of terror groups like al Qaida. We agree with the Court that these types of combatants were not entitled to protection from attack regardless of their categorization, nor were they entitled to prisoner of war status if detained. The Court did conclude that Article 51(3) of Additional Protocol I was customary international law, which limited the circumstances in which a “civilian combatant” could be considered a legitimate military target. While we agree that there is a general principle of international law that civilians lose their immunity from attack when they engage in hostilities, we disagree with the contention that the provision as drafted in AP I is customary international law. In fact, the Israeli Court’s opinion appears to recognize that point inadvertently by highlighting the lack of international consensus regarding the meaning of both “for such time” and “direct part in hostilities.”

More centrally, though, most of the sources cited by the Court support our contention that “unlawful enemy combatant” is a category of combatant, distinct from civilians, recognized under international law. Kenneth Watkin, Richard Baxter, Jason Callen, Robert K. Goldman , and Michael Hoffman, all of whom the Court cites, agree that unlawful combatants exist as a legal category, although they may disagree somewhat with us and each other about who qualifies for membership in such a group, and what the legal consequences are, such as whether unlawful combatants are entitled to protection under the Fourth Convention. My point here is that even those that disagree with us as to the legal framework for detaining al Qaida and Taliban detainees should acknowledge that we are on legally firm ground in using this construct as the basis for our framework.

In closing, my sense is that the insistent opposition to our use of the term “unlawful combatant,” despite its clear lineage in international law, is motivated by a fear that acknowledging this category might place the detainees in a legal black hole. While it certainly could be the subject of a policy debate whether we should grant POW status to detainees not legally entitled to it, saying that the Taliban and al Qaida detainees are not criminals on the one hand, nor POWs or protected persons on the other does not mean they do not have significant legal protections. Following the Supreme Court’s decision in Hamdan, all detainees in the conflict against al Qaida and the Taliban must be treated in accordance with Common Article 3 of the Geneva Conventions. They are also protected by the blanket prohibitions on torture and cruel, inhuman or degrading treatment or punishment found in U.S. law. And the Department of Defense recently promulgated a new directive on detention operations and a field manual governing interrogation that provide clear direction to the U.S. Armed Forces regarding compliance with these important norms. Nevertheless, critics prefer to strain to force the detainees to fit into the more traditional legal categories of common criminals or POWs. I am more inclined to agree with the conclusions of the OSCE Rapporteur on Guantanamo, Anne-Marie Lizin, the President of the Belgian Senate, that there is “incontestably some legal haziness” regarding the legal status of individuals captured in the course of military operations against international terrorists and that further legal work needs to be done to clarify the status of these kinds of combatants.

Armed Conflict With Al Qaida: A Response

by John Bellinger

Let me first say thanks to all that have taken the time to respond to my first posting. I had originally planned to wait until Friday to provide a comprehensive response to the various issues raised, but I have been so impressed by the quality of the dialogue so far that I’ve decided to post this interim response tonight. I apologize that I can’t provide responses in real time and that I can’t respond to all of the questions, but my government responsibilities prevent me from doing that. I should also note that I have addressed many of the points in my post from this morning on Common Article 3, or will address them in my next post tomorrow on unlawful enemy combatants. I will keep my responses here to those comments most directly responding to yesterday’s entry.

I’ll begin by thanking Charles Garraway and Eric Posner for taking the time to respond in depth to my comments. With regard to Charles’ comments, I appreciate that he agrees with us that it is possible to be at war with a non-state actor, that we can hold combatants in that war until the end of the conflict, and that at the least, we can agree that the conflict in Afghanistan, in which the vast majority of our detainees were picked up, continues.

Charles does seem to suggest that criminal law should be used to prosecute al Qaida operatives found outside Afghanistan (Marko also raised a similar point). As I have noted, we have used criminal law to prosecute some al Qaida operatives found in the United States, such as Zacharias Moussaoui, but I would ask you to consider—in addition to the legal arguments underpinning wartime detention—the practical difficulties of prosecuting an al Qaida member not found in the United States. To begin with, our criminal courts simply do not have extraterritorial jurisdiction over many of these individuals or many of their activities. Some of them had never set foot in the United States or planned specific criminal acts in violation of our federal criminal statutes. One thing that all of our countries have learned since September 11th is that we are facing a different kind of terrorism than we used to face, and we have to expand the reach of our criminal laws. There has been a flurry of activity in the United States and other countries to do just that. But the current effort to expand our criminal laws cannot be made retroactive. Therefore, in many cases there would have been no legal basis to try al Qaida operatives in our courts for violations of our domestic criminal laws. Moreover, in many instances the evidence against these operatives was obtained on the battlefield, even where the detainees themselves were captured elsewhere. Our federal courts require a chain of custody to be presented for all evidence introduced at trial, and this could pose a great deal of difficulty for our forces. Ultimately, we think we are not legally obligated to try al Qaida combatants under the laws of war, but have set up military commissions to prosecute those who have committed the most serious violations of the laws of war.

Eric Posner invites me to say what is as stake in the argument about the applicability of international law to the conflict with al Qaida. Fundamentally, what is at stake is the reputation of the United States as a nation that takes international law seriously and that does not bend the law to meet our immediate needs. It is true that when novel situations present themselves, governments have some flexibility in how they adapt traditional rules to new realities. But United States cannot regard international law as something to be completely redone whenever a new challenge presents itself, and must care about the implications down the road of the positions that it decides to defend today. A reputation for consistency and reasonableness in its approach to its international obligations is valuable to the United States. Without that, other countries will be less willing to cooperate with us and live up to their own international law commitments. Even though international law constraints are sometimes limited, they are nevertheless real and substantive and we cannot maintain that we are a nation that abides by law if we say we have the choice of disregarding international law. As lawyers, we must take into account not just the texts and decisions that make up the building blocks of international law, but also the quality and integrity of the arguments we make and the analogies we draw in framing our positions on international law. It is in the broader interests of the United States not to let these arguments become merely a matter of convenience.

Turning now to some of the other posts, “Non liquet” asks how we will know when the war with al Qaida is over. This is an important question. Of course, in any war, you don’t know how long the war is going to go on. There have been wars that have gone on for five years, ten years, thirty years, one hundred years. But the fact that a particular conflict with an enemy may go on indefinitely does not mean we should simply release all members of the enemy we are holding so long as that conflict is continuing. There is a reason that under customary principles of international law, you may hold the people until the end of a conflict, and that is to keep dangerous people off the battlefield.

Nevertheless, we recognize that the conflict with al Qaida is not a traditional conflict that will end with an armistice agreement on a battleship. We could reach the point where we have so decimated al Qaida that there may be so few operatives left that we don’t think they are actually engaged in a major war with us. But as a practical matter, with respect to the people we are holding in Guantánamo, we have added an annual administrative review process to determine whether an individual detainee continues to pose a threat to the United States or its allies. In a sense, we ask if the war is over with respect to that person. Even if al Qaida continues to be fighting us, if an individual can credibly say, “I want to stop fighting, I want to just go back and join my community,” and in fact the community will credibly commit, “We will take responsibility for this person, and make sure that he doesn’t go back to fighting,” then we will release people. We have released or agreed to release, subject to their countries taking them back, more than one hundred people pursuant to that process. Thus, the ARBs balance our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary.

Marko asks how the United States interprets the Supreme Court’s decision in Hamdan. As I described in depth this morning, the Supreme Court has held that the armed conflict with al Qaida is not a conflict between states, and that the conflict is governed by Common Article 3 of the Geneva Conventions. As Marty Lederman accurately anticipated, the Administration reads the Hamdan decision to accept that the U.S. is in an armed conflict – and therefore that the laws of war are appropriate to apply – but that the armed conflict is not of an international character. If the Supreme Court had thought that we were in a state of armed conflict with al Qaida, it is hard to see how the Court could have applied the Geneva Conventions or Common Article 3 at all. Marko further suggests that if the Geneva Conventions don’t apply to an armed conflict, it cannot be considered one under international law. I agree with Marty Lederman’s on point critique of this argument.

Marko also argued that “the vast majority of legal scholars” believe that a state cannot be in an armed conflict with a non-state actor. While I recognize there is some disagreement among international lawyers on this point, there are certainly numerous lawyers and academics who believe that the better legal position is that a state of armed conflict may exist between a state and a non-state actor. As my previous entry describes, over a century of state practice supports the conclusion that a state may respond with military force in self defense to attacks by a non-state actor from outside the state’s territory, at least where the harboring state is unwilling or unable to take action to quell the attacks, and law of war treaties that govern the treatment of detainees in armed conflict, including Additional Protocol 1 of the Geneva Conventions, contemplate conflicts between state and non-state actors across national borders. I have already cited Thomas Franck’s article “Terrorism and the Right of Self-Defense, available here. I would also refer readers to Roy Schondorf’s excellent recent article analyzing the legal regime applicable to conflicts between states and non-state actors: “Extra-State Armed Conflicts: Is There A Need for A New Legal Regime?” available here.

But I take Marko’s larger point to be an expression of frustration with what he considers to be the inadequate protections provided enemy combatants by Common Article 3. But to be clear, this is a dispute on policy, not law. As I will explain in more depth tomorrow, there are good policy reasons why the United States is not treating the al Qaida detainees as POWs even though they are not legally entitled to that status. But it’s important to identify this as a policy, not legal, disagreement.

Katherine’s questions seem to go to the concern I mentioned in yesterday’s post, that to say that we are in an armed conflict with al Qaida is to give the United States a blank check to act as it pleases in combating the threat. To pick up on some of her particular points, however, one finds that in fact in war there are specific legal protections to address the concerns she raises. First, she suggests that because we are in an armed conflict the Convention Against Torture does not apply. While the law of armed conflict is the lex specialis governing the detainee operations in our conflict with al Qaida, torture is clearly and categorically prohibited under the law of armed conflict, as well as under the CAT. Obligations to prevent cruel, inhuman, or degrading treatment are similarly found in both bodies of law.

Second, she suggests that detainees in this war get inadequate review before being detained. Admittedly, identifying members of the Taliban and al Qaida is difficult, because—among other things—unlike in a traditional war, the Taliban and al Qaida do not wear uniforms and insignia. Nevertheless, our forces worked hard to detain only those individuals who were part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. To ensure that we are holding the right people, every detainee in Guantanamo has his case reviewed by a formal Combatant Status Review Tribunal, which determines whether a detainee is properly classified as an enemy combatant. The detainee has the assistance of a military officer, may present evidence, and may appeal the determination of the CSRT to our federal courts. Nearly 40 detainees have been released as a result of this process. It is simply not correct to say that detainees do not have meaningful review of their detention.

Finally, on Kashi’s comments about my discussion of the Caroline case—that case involved private persons on the American side of the US-Canadian border supporting insurrectionist efforts in Canada, then retreating back to sanctuaries on the American side of the border in upstate New York, where they were attacked by the British. The case involved two issues relevant here: first, whether acts by private actors (as opposed to acts by state militaries) could trigger a right of self-defense where the government of the host state was unable or unwilling to take action; and, second, whether the threat posed by those private actors satisfied the conditions of necessity, proportionality and immediacy so that the British action would be justified. But there was no question that the acts of private actors could trigger the right of self-defense where the host government was unable or unwilling to deal with the situation. Secretary Webster may not have accepted that the facts were right to legally justify the use of force in the Caroline case, but the British and Americans both accepted the underlying principle.

With respect to immediacy, or what is usually referred to as imminence, the longstanding US view has been that a state need not wait until it is actually attacked before using force in self-defense, and that view has been more strongly embraced than ever in recent years, including for example by the UN Secretary-General in his In Larger Freedom report in 2005. The US continues to accept the importance of the distinction between imminent and non-imminent threats, but—in the face of the threats now posed by terrorism and proliferation of weapons of mass destruction—the principles of self-defense must be understood and applied in the security environment in which the US and other states now find themselves. But it is also important to note that, insofar as the conflict with al-Qaida is concerned, imminence is not a “live” issue, as the United States has been subject to actual—as opposed to anticipated—attack.

I look forward to continuing this discussion over the rest of the week.

The State Department and the War on Terror – Another View

by Duncan Hollis

The Role of the State Department: Response to Posner

by Peggy McGuinness

The State Department and the War on Terror

by Eric Posner

Some of the commenters have been trying to prod John Bellinger to discuss the administration’s internal arguments about the legal approach to the war on terror. Of course, he cannot comment on these matters, but we should not let that stop us from discussing them.

Media reports about the debates about international law within the administration appear to reveal three camps. The OLC took the most extreme pro-executive position, arguing that international law (and domestic law!) placed few or no constraints on the president’s authority. The State Department took the moderate position, arguing that international does constrain the U.S. government, including the Geneva Conventions and related customary international law. The Defense Department, if I remember correctly, seemed mainly concerned about ensuring that the Geneva Conventions apply, but seemed unconcerned about other aspects of international law. But I want to focus on the OLC-State conflict.

The dominant view among academics is that OLC was the villain and the State Department’s “L” was the hero. The OLC misunderstood or unreasonably discounted international law, while the State Department advanced a reasonable interpretation of it, or at least appeared to take it seriously. The OLC was staffed by ideologues or fools, while the State Department was staffed with professionals.

But this seems simple-minded, and it ignores everything we know about how bureaucracies work. Bureaucracies, whatever their virtues and flaws, take their missions seriously, and the personnel of a particular agency tend to internalize these missions. This leads elected officials and political appointees to be suspicious about the bureaucracy’s advice—does it advance the public’s interest or the bureaucracy’s interest?—and to discount the advice of bureaucracies whose mission is in tension with the elected officials’ own political aims. This put the State Department in a weak position for the Bush administration, and it needed to take that into account.

The State Department’s job is to ensure that America’s relations with foreign states remain as harmonious as possible. The State Department always takes dovish positions, urging the president to negotiate rather than fight. It also wants the president to comply with international law because otherwise trouble will ensue—a foreign state will object, international bodies will complain, and State Department diplomats will need to be deployed to smooth ruffled feathers and State Department lawyers to address legal complaints.

The OLC’s job is to protect the president against Congress and the courts—or, if you want, to advance the president’s authority vis-à-vis these institutions. Now this job does not, by itself, imply anything special about what OLC’s position on international law would be. But, in practice, international law tends to be a nuisance for the executive branch, because treaties were entered in the past when conditions were different, and now interfere with current goals. As this problem often arises in domestic litigation, perhaps the OLC has come to see international law as an instrument used by courts to frustrate the executive, and no doubt it blames Congress as well, whose members will, when politically advantageous, pummel the executive for violating international obligations. So one suspects that over time OLC has come to see international law as a device that Congress or the courts use to ensnare the president, and this has generated a skeptical attitude toward international law that is in tension with that of the State Department, which needs to be able to see international law through the eyes of the foreign officials with whom it constantly must deal.

The executive is a “they,” not an “it”; and so the different legal institutions that compose it will have more or less influence on the president’s official legal position at any given time, based on internal bureaucratic politics, the clash of personalities, and other factors that people have to ignore when they are debating the finer points of international law. I wonder whether future historians will reveal that what drove the administration to discount international law after 9/11 was not contempt or indifference for international obligations and foreign countries per se, or even bad legal reasoning, but the assumption that international law is an instrument of Congress and the courts for constraining the executive. This gibes with the view, often attributed to Cheney, that the executive needs to regain power that it lost to Congress and the courts in the 1970s.

To the extent this is right, this institutional agenda would incline the president to heed the OLC rather than the State Department, which would need to work that much harder to make its views felt. To the extent that the narrow interpretations of international obligations adopted by the administration to handle the war on terror turn out to be unwise, the responsibility will lie at least partly with the State Department (its chief, not its lawyers) for having failed to make clear to the president the political costs of being perceived to violate international law, whatever the right interpretation. With respect to the OLC, if its positions had put the president in an untenable position with respect to Congress and the courts, it would have served him poorly, but this does not seem to be the case—so far. Many of the legal positions of the administration have been rejected but others have been sustained, and all in all the administration’s legal approach to the war on terror today is not much different from what it was immediately after 9/11. But if these positions get the U.S. in trouble internationally, that is something for the State Department to have made clear to the president. And what would have gotten the president’s attention was not a treatise on international law but a clear picture of the negative consequences of taking a position on international law that other states did not agree with.

In fact, Colin Powell tried to do this—he argued that American soldiers would be mistreated in future wars if the U.S. violates (that is, “narrowly interprets”) the Geneva Conventions today. But perhaps he did not argue forcefully enough—perhaps he should have threatened to resign. Or perhaps this argument was just not persuasive.

The Meaning of Common Article Three

by John Bellinger

Today I’d like to offer thoughts on a few aspects of Common Article 3 (CA3) of the Geneva Conventions.



I’ve heard lots of questions and concerns about why the President wanted to define in greater detail the terms of CA3. Some say, “The military has been able to train to the standards of CA3 for years. How can it be vague?” Others suggest that efforts to define the terms of the article are simply an effort by the Administration to walk back from its binding treaty obligations.



Let me say several things in response to those concerns. First, the U.S. military trains to standards higher than the minimum standards of CA3; it trains to the standards that apply to the detention and treatment of prisoners of war. Thus, it has not had to grapple with precisely what CA3 requires.



Second, some of CA3’s terms are not sufficiently clear about which acts are prohibited and which are permitted. Murder, hostage taking, and torture are quite clear. But which acts constitute “outrages upon personal dignity, in particular humiliating and degrading treatment”? Pictet’s Commentary on CA3 states that the drafters intended to capture only those acts that “world public opinion finds particularly revolting.” Reasonable people can and do differ about what behavior that phrase captures. While this ambiguity may be understandable given the purposes of CA3, a clear definition of what conduct is prohibited was particularly important to us after the Hamdan decision concluded that CA3 applied to the conflict with al Qaida. Because Congress had criminalized violations of CA3 in its 1999 amendments to the War Crimes Act, it was essential that what was criminally sanctionable under federal law be carefully delineated, to provide clarity to both prosecutors and potential defendants as to what conduct was criminal. Thus, the Administration chose to ask Congress to criminalize certain acts that it believed clearly fell within the CA3 prohibitions– such as rape and sexual assault. The Military Commissions Act, which emerged from the Administration’s draft bill, now provides clear guidance on which violations of CA3 are criminal offenses.



Incidentally, the Administration and Congress are not the only entities to have determined that terms in CA3 are vague. The International Criminal Tribunal for the Former Yugoslavia acquitted defendant Mitar Vasiljevic, who was accused of killing five Muslim men, of the offense of “violence to life and person” because the term lacked a sufficiently precise definition under international law.



Some have argued that we are undercutting or violating our international law obligations by not criminalizing each provision in CA3. But the Geneva Conventions do not require High Contracting Parties to criminalize all such violations. Instead, they require Parties to criminalize all violations listed in the Conventions as “grave breaches” (such as those violations in Article 130 of the Third Convention and Article 147 of the Fourth) when committed against “persons or property protected by” that Convention. And, of course, the United States has complied with this obligation. Pictet’s Commentary makes clear that the reference to “persons protected by” in Article 130 and 147 means those individuals defined in Article 4 of the Third and Fourth Conventions, respectively (prisoners of war and protected persons).



The U.S. Government took a different approach in 1995 in its amicus brief in the Tadic appeal in the ICTY, arguing in favor of the view that “grave breaches” of the Geneva Convention should be interpreted broadly to include acts committed in internal conflicts covered by CA3. But the ICTY expressly rejected this argument, noting that “State parties to the 1949 Geneva Conventions did not want to give other States jurisdiction over serious violations of international humanitarian law committed in their internal armed conflicts – at least not the mandatory universal jurisdiction involved in the grave breaches system.” The panel concluded that the grave breach provisions such as those found in Article 130 of the Third Convention “do not include persons or property coming within the purview of CA3 of the four Geneva Conventions.”



We believe the approach reflected in the new legislation – criminalizing as serious violations of CA3 those acts committed during internal armed conflict that represent serious violations of that provision – reflects a good faith interpretation of our obligations under the Geneva Conventions that is consistent with approaches taken by others in the international community. The Article on its face does not require us to criminalize any of its prohibitions; nothing in the negotiating history suggests that the provision was intended to create such an obligation. Even the ICC statute does not criminalize all violations of CA3, but rather criminalizes what it calls “serious violations” of CA3. In this context, we thought it was important and appropriate to be as clear and specific as possible about what prohibited acts trigger criminal liability.



It is true that, before this new law, the War Crimes Act criminalized any conduct that constituted a violation of CA3. But the statute never defined the specific conduct that would have constituted a criminal act, and was arguably, therefore, overly vague. Our review of CA3 led us to the view that certain of the Article’s prohibitions – including the vague prohibition against “outrages upon personal dignity” – were simply too poorly defined and understood to provide a basis for prosecution. Indeed, it is difficult to imagine Congress enacting a federal offense to make it a crime to subject a federal inmate to an “outrage on personal dignity” – but the War Crimes Act, before its amendment, had a comparable effect in armed conflict scenarios. Perhaps because of the absence of clarity, the U.S. government never prosecuted anyone under that statute, even those who committed war crimes against U.S. forces. By providing clear definitions of criminal conduct, we have made the War Crimes Act a more effective tool for prosecuting war crimes in the future.



Of course, any activity that violates CA3, including “outrages upon personal dignity” and the prohibition against the passing of a sentence without previous judgment pronounced by a regularly constituted court, even if not a war crime, still is prohibited, may violate other criminal laws, and would be subject to administrative or other penalties. The Military Commissions Act confirms that cruel, inhuman, and degrading treatment is a violation of CA3, which is absolutely prohibited under U.S. law, and contemplates that the President may issue further interpretations of what constitutes violations of that provision. The Act therefore does not alter our treaty obligations in any way.



Finally, just a word about the Supreme Court’s decision in Hamdan as it relates to CA3. I think the Court’s decision took a number of international lawyers by surprise in holding that CA3 applied to the conflict with al Qaida as a matter of treaty law. Had the Court concluded that CA3 applied as a matter of customary international law, it might have been less surprising, as many commentators have reached this conclusion (although, such a finding probably would not have been dispositive in the Hamdan litigation itself). But given the text of the Article, it was reasonable for the President to have determined in February 2002 that, as a treaty law matter, CA3, which applies to armed conflict “not of an international character” occurring “in the territory of one of the High Contracting Parties,” applied only to armed conflicts that occurred in the territory of a single state. Indeed, the Israeli Supreme Court has just concluded in the Public Committee against Torture case that Israel’s conflict with terrorist organizations – that is, a conflict that is not literally between nations – nevertheless is an international armed conflict, not a conflict to which CA3 applies. Pictet too describes the conflicts referred to in CA3 as armed conflicts that are “in many respects similar to an international war, but take place within the confines of a single country.” The conflict with al Qaida, which has taken place both inside and outside the United States, does not meet that description. The United States, of course, has complied and will continue to comply with the Supreme Court’s decision in Hamdan, but I raise this simply to note that, before that decision, many believed that CA3 applied as a treaty law matter only to internal armed conflicts.


Armed Conflict With Al Qaida: A Reply

by Eric Posner

[Opinio Juris welcomes Professor Eric Posner as a guest respondent. Professor Posner is Kirkland and Ellis Professor of Law at the University of Chicago.]

Thanks to Roger for asking me to write a reply to John Bellinger’s post.

I’m going to ask—even though I suspect that John will decline to answer—what is at stake in this argument. The Bush administration wants maximum flexibility in dealing with al Qaida, and understandably. What are the possible constraints? They are all familiar—the U.S. Constitution, Congress, domestic public opinion, foreign public opinion, foreign governments, and so forth. Everyone understands how these factors constrain and shape the American response to al Qaida. Another such constraint is international law. International law is spongy material, however, and it can be interpreted narrowly or broadly. The critics advance broad interpretations, interpretations that would require the U.S. government to grant rights to members of al Qaida that could interfere with anti-terror operations. The U.S. government, consistent with its goal of maximizing its flexibility, prefers the narrowest possible interpretation. As John takes pains to suggest, this does not mean that the U.S. will necessarily use the most aggressive measures available; but it does mean that those measures will always be an option.

The narrowest possible interpretation is, of course, that international law does not apply at all: the U.S. can do what it wants. Members of the Bush administration apparently considered this possibility at one time but the U.S. government has not officially adopted it. Let’s call this the “null position.” It could, for example, have argued that the international laws of war developed prior to al-Qaida-style international attacks, and cannot be considered applicable to them. We can imagine that if the Bush administration had adopted the null position, this would have provoked outrage and concern around the world. But perhaps this outrage and concern would have been worth incurring, because the advantages of being unconstrained greatly exceeded the costs. The outrage and concern would have died out as they always do, but the security benefits would have remained.

There are various possible broad interpretations. One is that the United States simply cannot treat al Qaida as a belligerent. Another is that members of al Qaida are belligerents but they are entitled to broad protections embodied in the Geneva Conventions and customary international law. Suppose (very counterfactually) that the United States had adopted a broad interpretation. Would the rest of the world have applauded? Would they have been more cooperative (perhaps by joining the invasion of Iraq or refraining from pressuring the United States to join the Kyoto treaty or the ICC)? Are there subtle types of anti-terror operations going on right now that are being hampered because foreign states refuse to cooperate with the United States as much as they would if the United States had adopted (and complied with) a broad interpretation?

The U.S. has adopted a narrow interpretation a hair’s breadth away from the null interpretation. John says, “A state acting in self-defense must comply with the UN Charter and fundamental law of war principles.” On the American position, the U.S. is complying with the UN Charter because that document allows it to go to war, in self-defense, against a non-state entity; so no constraint there. As for these “fundamental” law of war principles, well, what are these anyway? Perhaps rules like the principle of proportionality, but no one thinks that even under the null interpretation the United States would blow up a city in order to kill a handful of al Qaida members. So the narrow interpretation advanced by John is, I suspect, roughly the same (as a practical matter) as the null interpretation.

This, then, brings me to the question. If the U.S. gets all the benefits of the null interpretation, why not candidly adopt it? What is the advantage of adopting the narrow interpretation instead? I see three possibilities:

1. Despite what I said above, the narrow interpretation differs from the null interpretation: it constrains the U.S. a little bit. In return for this self-constraint, the world cooperates with the U.S. more than it would otherwise—but, correlatively, only a little bit.

2. Despite what I said above, the narrow interpretation differs from the null interpretation: it constrains the U.S. a little bit. However, the U.S. gains nothing from this self-constraint, or very little, because the rest of the world does not distinguish the null and narrow interpretations—they are equally bad. In this case, the U.S. has erred and should adopt the null interpretation.

3. The world does not care so much about the substance of U.S. actions but it cares deeply about the U.S. lording it over other states, making them feel less than sovereign. Indeed, perhaps many or most foreign governments want the U.S. to exercise no self-constraint. What good does it do them? The narrow interpretation, then, is like diplomatic protocol: substantively empty but nonetheless important as a way of confirming the formal equality of states.

One concrete question that arises from all this is this: Have foreign states retaliated against the United States because it has adopted the narrow rather than the broad position? Would foreign states have retaliated more against the United States if it had adopted the null position? I do not mean “retaliation” literally but as a stand-in for a decline in cooperation of all sorts, including failure to abide by existing international law that benefits the United States.

Armed Conflict With Al Qaeda: A Riposte

by Charles Garraway

[Opinio Juris welcomes Professor Charles Garraway as a guest respondent. Professor Garraway is a Visiting Professor of Law at King’s College, London, an Associate Fellow at Chatham House, and a Visiting Fellow at the Human Rights Centre, University of Essex. He is a former Stockton Professor at the United States Naval War College, Newport, Rhode Island.]

There is an old Irish saying about the foreigner who when asking an Irishman for directions to the nearest town received the reply ‘I wouldn’t start from here!’. Eloquent though John Bellinger is, I feel he is somewhat like that foreigner! However, as he fairly points out, he has no choice but to start from ‘here’, even if the ‘here’ is not of his choosing.

I agree with much of what John Bellinger says. The United States was fully justified in taking action in self defence following the attacks of 9/11. I also accept that both Common Article 3 and both Additional Protocols recognize that it is possible to have an armed conflict against a non-state actor. Indeed, I would go further and say that it is possible to have an armed conflict involving only non-state actors. This is not uncommon in failed state scenarios. However, all these legal instruments envisage such conflicts as being limited to the territory of a single state. Even Additional Protocol I, with its controversial Art.1(4), cited by John Bellinger, merely applies the international law of armed conflict to an internal situation. In declaring a global war against Al Qaeda, the United States broke new ground. But was it necessary?

In so far as Afghanistan itself is concerned, there was clearly an international armed conflict between the Coalition (not just the United States!) and Afghanistan. The Taliban were the de facto Government of Afghanistan and as such represented the state. We would not describe the conflict as limited on our side to the Republican Party (or in United Kingdom terms, the Labour Party). That international armed conflict covered all the hostilities and those taking part in them. For those who actually have to do the fighting, to try to divide the conflict into two parts, one against ‘the Taliban’ and the other against ‘Al Qaeda’ is nonsensical. It was all the same conflict. The only distinction that might need to be made was as to the designation of captured personnel. Were they combatants who were either entitled to prisoner of war status or in some way had disqualified themselves from that entitlement? Alternatively, were they persons who had no right to call themselves combatants and who thus were what I will call ‘unprivileged belligerents’?

I agree with John Bellinger that the United States may detain those who commit belligerent acts against them during that conflict, either as combatants or as unprivileged belligerents, until the end of active hostilities in Afghanistan. This is a view supported by the Supreme Court. I also agree that there is a strong case for maintaining that active hostilities have not ceased in Afghanistan. Although some would argue that ‘unprivileged belligerents’ in the sense that I use the term, fall under the Fourth Geneva Convention and are thus entitled to extra reviews of their detention, I do not agree. An ‘unprivileged belligerent’ may be a ‘civilian’ in Protocol I language but to grant him the privileges of a civilian under the Fourth Convention is, in my view, an abuse. He has lost his protection from attack by taking a direct part in hostilities and whilst, again in Protocol I terms only, that does not make him a combatant, it cannot entitle him to greater privileges than the genuine combatant who can be detained until the end of active hostilities without review solely because of that status.

So far, whilst starting from a different point, my practical conclusions are thus no different. However, where I part company is in two areas. What happens if and when active hostilities cease and what happens to Al Qaeda operatives in other parts of the world?

For the first, I consider that under the laws of armed conflict, the detainees are entitled to release. However, that does not mean that they will necessarily be so released as different legal regimes may apply to prevent that. If any have been convicted of criminal offences, they must serve their sentences. Similarly, there are provisions under human rights law to allow for internment in situations of public emergency – and a post conflict situation usually remains that. The relationship between the laws of armed conflict and human rights law may be uneasy in this area but it is workable. Neither legal system is a suicide pact.

In so far as Al Qaeda operatives outside Afghanistan are concerned, as John Bellinger fairly points out, this would depend on the circumstances. In principle, they are criminals and would be dealt with under criminal law where that is possible. I am relieved that the United States does not ‘plan’ to shoot terrorists on the streets of London but that carefully phrased statement does not say whether the United States considers that it would be legally entitled to shoot terrorists on the streets of London! In my view, it would not, except in the most extreme circumstances. That those circumstances can exist, however, is illustrated by the shootings of the IRA terrorists in Gibraltar. Although the European Court of Human Rights ruled against the United Kingdom in that case, it so decided on narrow grounds and recognized that had the circumstances been slightly different, the shootings would have been justified. However, the justification was under domestic and human rights law, not under the laws of armed conflict.

What 9/11 and its aftermath have shown quite clearly is that, when tackling global terrorism, there needs to be a coherent legal strategy covering the whole spectrum. The answer to 9/11 is not to be found either in the laws of armed conflict or in criminal law but in a combination of both. It has been unfortunate that the advocates of each have tended to increase the divide rather than working towards a common solution where both legal regimes are used in combination, each in their respective areas, to combat the threat. The attempts to use both the laws of armed conflict and criminal law in areas for which they were not designed has damaged both.

Armed Conflict With Al Qaida?

by John Bellinger

My next three posts will cover issues relating to the law of war. I know that many people have objected passionately to some of the Administration’s policies and legal positions relating to detainees. I have heard many assertions that U.S. detainee policies violate international law, and I must say that I think many of the criticisms are based on an inaccurate understanding of applicable international law or on aspirational statements of international law as critics wish it were, rather than as it now exists. I am not going to try in this limited space to rebut or discuss every one of these criticisms. I want instead to describe in detail our legal thinking on three specific matters. My purpose is not to persuade readers to agree with Administration policies. But I would ask readers to engage in serious legal analysis. If you question our approach, I would ask you to consider whether a different approach is actually legally required or simply preferable as a matter of policy. Did a realistic alternative approach exist, and how would that approach have worked better in practice?



I want to begin by addressing two related issues that have come up frequently in my discussions with my European colleagues. The first issue is whether the law of war is an appropriate legal framework in which to respond to terrorist attacks. The second issue is whether a state can be in an armed conflict with a non-state actor outside that state’s territory.



The phrase “the global war on terror”—to which some have objected– is not intended to be a legal statement. The United States does not believe that it is engaged in a legal state of armed conflict at all times with every terrorist group in the world, regardless of the group’s reach or its aims, or even with all of the groups on the State Department’s list of Foreign Terrorist Organizations. Nor is military force the appropriate response in every situation across the globe. When we state that there is a “global war on terror,” we primarily mean that the scourge of terrorism is a global problem that the international community must recognize and work together to eliminate. Having said that, the United States does believe that it is in an armed conflict with al Qaida, the Taliban, and associated forces.



Let me start back in 2001. There was widespread recognition that the United States suffered an armed attack by al Qaida on September 11, and that, under the principle of self-defense, the United States was entitled to use force against al Qaida and Taliban forces in Afghanistan. No one in the international community suggested at that time that the United States was not entitled to use force to respond to those terrible attacks. (See here for a discussion about why law enforcement tools were not – and are not – sufficient on their own to stop future imminent attacks against the United States from al Qaida.)



Why did we have a right to use military force? We did so in self-defense against the Taliban because it had allowed al Qaida to use Afghanistan as an area from which to plot attacks and train in the use of weapons, and it was unwilling to prevent al Qaida from continuing to do so. After giving the Taliban an opportunity to surrender those it was harboring (an opportunity it refused), we took military action against its members.



We also were justified in using military force in self-defense against al Qaida, as an entity that planned and executed violent attacks with an international reach, magnitude, and sophistication that previously could be achieved only by nation states. Its leaders explicitly declared war against the United States, and al Qaida members attacked our embassies, our military vessels, our financial center, and our military headquarters, killing more than 3,000 people. Al Qaida also had a military command structure and world-wide affiliates. In our view, the United States was justified in responding in self-defense, just as we would have been if a nation had committed these acts against us. Indeed, the UN Security Council recognized our right of self-defense in resolution 1368 on September 12. And if the United States did not have the right to use force against al Qaida and the Taliban, we would have had no acceptable way to defend our citizens after the most devastating attack against the United States in history. Given the Taliban’s unwillingness to cooperate with the international community to bring the perpetrators of the September 11th attack to justice, one cannot reasonably argue that the only recourse the United States had against al Qaida was to file diplomatic protests or futile extradition requests to Mullah Omar.



So we found ourselves in an armed conflict in Afghanistan starting in October 2001. In the course of that conflict, we detained members of al Qaida and the Taliban, some of whom are now in Guantanamo. U.S. or allied forces captured the majority of these detainees in late 2001 or early 2002 in or near Afghanistan. One of the most basic precepts in the law of armed conflict is that states may detain enemy combatants until the cessation of hostilities. It cannot reasonably be argued that the United States and its allies had the right to use force in Afghanistan but did not have the right to detain individuals as an incident to the armed conflict that ensued, unless we planned to charge them with a crime. The Supreme Court explicitly has affirmed in Hamdi that the United States had the right to detain enemy combatants in the armed conflict that ensued after our decision to act in self-defense.



Some critics agree that we were in a war with the Taliban and al Qaida in Afghanistan in 2001-02, and that our detention of at least some of the detainees was justified under the law of war. But they argue that the conflict ended in June 2002 with the establishment of Afghanistan’s new government and that our legal basis for holding any detainees ended at that time. But this assertion is not consistent with the facts on the ground, because the Taliban continues to fight U.S. and coalition forces in Afghanistan. We see the Afghanistan conflict as a continuing conflict that began in 2001, and believe that the United States is not obligated to release any Taliban detainees we currently hold in Afghanistan or Guantanamo, only to see them return to kill U.S. and coalition forces. Anybody who questions whether this conflict continues should consider that combat operations over the past few months have resulted in the deaths of several hundred Taliban fighters and a number of U.S., European, and Canadian forces.



Equally important, however, we believe that the United States was and continues to be in an armed conflict with al Qaida, one that is conceptually and legally distinct from the conflict with the Taliban in Afghanistan. It cannot reasonably be argued that the conflict with al Qaida ended with the closure of al Qaida training camps and the assumption of power by a new government in Afghanistan. Al Qaida’s operations against the United States and its allies continue not only in and around Afghanistan but also in other parts of the world. And because we remain in a continued state of armed conflict with al Qaida, we are legally justified in continuing to detain al Qaida members captured in this conflict.



Let me respond to two arguments I often hear as to why it is not correct to characterize this conflict as a war. First, some argue that a legal state of armed conflict can only occur between two nation states and that a state may not use force against a non-state entity. This contention is incorrect. The international rules regarding the right to use force, including those reflected in Article 51 of the UN Charter, do not differentiate between an armed attack by a state and an armed attack by another entity. This makes logical sense: The principle of self-defense permits a state to take armed action to protect its citizens against external uses of force, regardless of the source. It is true that most past wars were between states, or existed within the territorial limits of a single state, but this is an historical fact, not a legal limitation on the concept of armed conflict.



Over a century of state practice supports the conclusion that a state may respond with military force in self defense to attacks by a non-state actor from outside the state’s territory, at least where the harboring state is unwilling or unable to take action to quell the attacks. This includes the famous 1837 case of the Caroline, in which British forces in Canada entered the United States and set fire to a vessel that had been used by private American citizens to provide support to Canadian rebels, killing two Americans in the process. Even law of war treaties that govern the treatment of detainees in armed conflict contemplate conflicts between state and non-state actors across national borders. Common Article 3 of the Geneva Conventions expressly contemplates armed conflicts between a state party and non-state actors. And any country that is party to Additional Protocol I of the Geneva Conventions, which contains additional rules applicable to international armed conflicts and also applies to certain conflicts with groups engaged in wars of national liberation, has acknowledged implicitly that a state may be in an international armed conflict with a non-state actor.



For an explanation of how U.N. Security Council resolutions and the U.N. Charter also contemplate States engaging in armed conflict with non-state actors, please see Thomas Franck’s article “Terrorism and the Right of Self Defense,” available here.



The second argument I hear is that the United States may have been justified in using force against, and detaining members of, al Qaida in Afghanistan, but it is not lawful for us to use military force against or detain members of al Qaida who were picked up outside Afghanistan. This argument seems more motivated by a fear of the implications about the possible scope of the conflict than by actual legal force or logic. We would all be better off if al Qaida limited itself to the territory of Afghanistan, but unfortunately, that is not the reality we face. No principle of international law limits to a single territory a state’s ability to act in self-defense, when the threat comes from areas outside that territory as well. This is not to suggest that, because the United States remains in a state of armed conflict with al Qaida, the United States will use military force against al Qaida in any state where an al Qaida terrorist may seek shelter. The U.S. military does not plan to shoot terrorists on the streets of London. As a practical matter, though, a state must prevent terrorists from using its territory as a base for launching attacks. As a legal matter, where a state is unwilling or unable to do so, it may be lawful for the targeted state to use military force in self-defense to address that threat.



One reason critics vigorously refuse to acknowledge that we have been and continue to be in a legal state of war with al Qaida is that they fear such an acknowledgement would give the United States a blank check to act as it pleases in combating al Qaida. However, recognizing a state’s right to take certain actions in self-defense is not to give a state carte blanche in responding to the terrorist threat. A state acting in self-defense must comply with the UN Charter and fundamental law of war principles. And whether a state legitimately may use force will necessarily require a careful review of the relevant law and specific facts, and will depend on a variety of factors, including the nature and capabilities of the non-state actor; the patterns of activity of that non-state actor; and the level of certainty a state has about the identity of those it plans to target. It also will depend on the state from which a non-state actor is launching attacks – specifically, whether that state consents to self-defense actions in its territory, or whether the state is willing and able to suppress future attacks. Rather than suggest that the use of force against al Qaida, including the detention of al Qaida operatives, is illegitimate, it makes more sense to examine the conditions under which force and detention may be used.



Let me close by emphasizing that I am not suggesting that military force and the laws of war are the ONLY appropriate or legal approach to dealing with international terrorism generally or al Qaida in particular. We recognize that other countries, like the UK, Germany, and Spain, may choose to use their criminal laws to prosecute members of al Qaida. Indeed, the United States itself continues to use its criminal laws to prosecute members of al Qaida, like Zacharias Moussaoui, who find their way inside our own territory in appropriate cases. But we do believe that it was – and continues to be – legally permissible to use military force and apply the laws of war, rather than rely on criminal laws, to deal with members of al Qaida in certain cases, such as those fighting or detained by U.S. military personnel outside the United States.


The Work of the Office of the Legal Adviser

by John Bellinger

I am grateful to Roger Alford and Duncan Hollis for inviting me to provide several blog entries on matters of particular interest to my office. Along with many of my colleagues in the Office of the Legal Adviser, I enjoy reading the blog and believe it provides a useful forum to discuss and debate important matters relating to international law.

Before making substantive comments, I’d like to provide a bit of context by explaining briefly what my colleagues and I do in the Office of the Legal Adviser, also known as “L.” We have approximately 160 lawyers who handle a wide range of interesting, often front page, issues. Our lawyers are exposed to many different substantive areas, as they typically rotate assignments within the Office after approximately two years. We also have lawyers stationed in New York, Geneva, The Hague and occasionally other posts abroad, including, at the moment, Baghdad. Our many alumni are in government, private practice and academia. White House Chief of Staff Josh Bolten worked in L early in his career, as did Judge Diane Wood of the Seventh Circuit.

L’s overall mission is to advise the Secretary of State and other State Department officials on the wide range of domestic and international legal matters that arise in the course of the Department’s work, including the work of the Foreign Service and U.S. diplomatic and consular posts abroad. L lawyers regularly draft, negotiate and interpret treaties, international agreements, UN Security Council and General Assembly resolutions, domestic statutes, Departmental regulations, Executive orders and other legal documents. We provide guidance to the Executive, Congress and the judiciary on questions of international and domestic law. We represent the United States in meetings of international organizations and in international negotiations on a wide range of subjects. We take part in domestic and foreign litigation affecting the Department’s interests. And we represent the United States before international tribunals, including the International Court of Justice. As we support Department personnel in the formulation and implementation of U.S. foreign policies, we seek to promote the development of international law and its institutions as a fundamental element of those policies.

L is involved in nearly all of the Department’s most significant activities. We have played a leading role over the past year in drafting landmark UN Security Council Resolutions on Iran, North Korea, and Lebanon. One of our attorney-advisers spent six weeks in Abuja, Nigeria last spring where she worked closely with senior policymakers, including former Deputy Secretary of State Robert Zoellick, to negotiate successfully a peace agreement between the Sudanese government and a faction of Darfur’s largest rebel group. Another has played a leading role for nearly twenty years in advancing U.S. efforts to promote peace in the Middle East. Others have worked intensively on nearly every important aspect of U.S. diplomatic efforts to resolve crisis in the Balkans, including most recently efforts to resolve the final status of Kosovo.

Our work is as varied as all of international law. One of our lawyers is just back from Antarctica where he provided advice to the U.S. team that is conducting a compliance inspection of other countries’ stations under the Antarctic Treaty. Another of our lawyers recently served as legal counsel to the U.S. delegation to a Plenipotentiary meeting in Antalya, Turkey, of the International Telecommunications Union. As Legal Adviser, I led the U.S. delegation to two international conferences in Geneva to enable the Israeli national society, the Magen David Adom, to join the International Movement of the Red Cross and Red Crescent. And I led a delegation of U.S. government officials, including other L lawyers, to Geneva to present our second periodic report to the UN Committee Against Torture.

L lawyers work especially hard on human rights and international criminal justice issues. We played a key role in helping establish the International Criminal Tribunals for Rwanda and for the former Yugoslavia and the Special Court for Sierra Leone, and we continue to work extensively on legal issues relating to these tribunals. One of my priorities has been to emphasize the support the U.S. Government provides to international criminal justice efforts around the world, and I meet regularly with the leaders of the international criminal tribunals. L lawyers also lead the work on law of war issues, and one of my deputies leads the U.S. delegation to meetings concerning conventional weapons that may cause unnecessary injury or be indiscriminate in their effects.

L also makes major contributions to the Department’s economic goals, especially in the areas of trade and investment. Among other things, we help negotiate bilateral debt and investment agreements, participate in WTO cases, represent the United States in the arbitration of NAFTA investor-state cases, and seek to resolve a variety of international claims and investment disputes, including serving as counsel for the U.S. Government at the Iran-U.S. Claims Tribunal. We advise the Department and the Committee on Foreign Investment in the United States in the negotiation and implementation of the U.S. Government’s civil aviation agreements.

As Secretary of State and a former professor of international relations, Secretary Rice recognizes the critical importance of international law to a well-ordered international system, and she regularly emphasizes the U.S. commitment to international law and the rule of law around the world. In January 2005, within days of becoming Secretary, she told a Department town hall meeting that international law is critical to our diplomacy and said “We are a country of laws. We will be a country of laws. We respect international obligations and treaty obligations and international law. And we’re going to continue to make that very clear to the world.” As most readers of Opinio Juris are aware, she also addressed both the 99th anniversary meeting of the American Society of International Law in April 2005 and its Centennial meeting in March 2006.

At Secretary Rice’s request, I have made it one of my top priorities as Legal Adviser to speak out publicly on international law issues both internationally and domestically, in order to emphasize the U.S. commitment to our international legal obligations, to explain our legal positions, and to respond to those who have questions about these positions, As part of this effort, I have traveled to many European cities to exchange views with legal advisers and other representatives from foreign ministries, the EU, and international organizations as well as to speak at universities and think-tanks. I have also tried to speak regularly to the international media, especially in the Muslim world, in order to reach larger audiences on issues of international law. For those who may be interested, transcripts of many of my remarks are available here.

I have tried especially to address questions about U.S. laws and policies relating to detainees. I am acutely aware of the concerns in the international community about U.S. policies relating to the detention, treatment, and prosecution of terrorist suspects. These are very difficult and complicated issues, as evidenced by the lack of agreement about the legal rules that should apply. I certainly do not expect that everyone will agree with our legal positions. But I do hope that we can demonstrate that our lawyers are prepared to listen to international concerns and to engage actively in discussion. I would also hope that, after listening to our analysis of the issues, readers would agree that, even if they are not comfortable with U.S. policies, there are not clear and easy legal answers.

Over the next few days, I will focus my postings on several issues relating to the law of war and will make another posting on issues relating to immunities. I look forward to discussing these issues with you over the coming days and, again, appreciate the opportunity to be a guest blogger on this site.

Remembering MLK 2007

by Chris Borgen

The Urge to Surge

by Chris Borgen

Schwarzenegger in ’08

by Roger Alford

Confusing “Access to Justice” with the “Axis of Evil”

by Chris Borgen

Venezuela Announces Massive Work Program for International Lawyers

by Chris Borgen

The Pitfalls of Being a Visiting (and Foreign) Professor in Georgia

by Peggy McGuinness

Practicing Climate Change

by Peter Spiro

Retailing Behemoths Agree on Code of Conduct

by Peter Spiro

Opinio Juris Welcomes State Department Legal Adviser John Bellinger

by Roger Alford

Opinio Juris is very pleased to announce that John Bellinger will be guest blogging with us for the week of January 15. As our readers well know, Bellinger is the State Department Legal Adviser, the top lawyer at the Department of State. In that capacity he is the principal adviser on all domestic and international law matters to the Department of State, the Foreign Service, and the diplomatic and consular posts abroad. Full details of his bio are available here.

The format will be as follows. Bellinger will post six posts over the course of next week. The discussion will begin on Monday morning with an introduction to the Legal Adviser’s office, and then turn to substantive discussions of the treatment of detainees, international humanitarian law, and sovereign immunity.

Bellinger has kindly agreed to permit open comments to all his posts. As is typical for this blog, we expect and anticipate that all comments will be substantive, responsive, and civil. The permanent contributors will moderate any comments that depart from this norm. We also have invited prominent scholars and commentators to post as guest respondents. Bellinger will conclude his stint as a guest blogger with a final post that responds to some of the more salient comments during the week.

We very much look forward to an exciting week of contributions from John Bellinger.

New Essay on the Crime of Aggression

by Kevin Jon Heller

Israel’s First Muslim Minister

by Kevin Jon Heller

Somalia and Self-Defense — “The Lawyers Always Ask For Details”

by Duncan Hollis

Proposal du Jour: A “Concert of Democracies”

by Peter Spiro

William Haynes Withdraws Nomination

by Kevin Jon Heller

Philippe Sands on Prosecuting Tony Blair

by Peter Spiro

Is Robert Mugabe Responsible for Genocide?

by Peggy McGuinness

War on Terrorism Conference

by Roger Alford

Re-Deploying Troops from Afghanistan to Iraq

by Kevin Jon Heller

Profiling International Child Abduction Suspects

by Roger Alford

Charges Dropped Against Saddam

by Kevin Jon Heller

Law as Theater: Theater as Law – UK Theater Will Put Tony Blair on Trial

by Julian Ku

The London Times Reports on Alleged Israeli Nuke Strike Plans Against Iran

by Chris Borgen

Toys “R” Us Citizenship Rules

by Peter Spiro

Thucydides, Iraq, and the Rule of Law

by Chris Borgen

Donald Donovan Receives Honors from the Government of Mexico and the Mexican Bar Association for his Work on Consular Relations Cases

by Chris Borgen

Editorials About Saddam’s Execution

by Kevin Jon Heller

Cheese-Loving Terrorists

by Peter Spiro

Bush’s (Pending) Appointment of Khalilzad

by Kevin Jon Heller

Khalilzad to be Bolton’s Replacement?

by Chris Borgen

Evidence, Surveillance, and the Optimism of Scientists

by Chris Borgen

Why Saddam’s Execution Was Unlawful

by Kevin Jon Heller

Negroponte to Become Deputy Secretary of State

by Chris Borgen

New ASIL Fellowship Program

by Chris Borgen

Ban Ki-Moon’s Leadership Team and Agenda

by Chris Borgen

Juan Cole on the Top 10 Ways the U.S. Supported Saddam

by Kevin Jon Heller

New Year; New EU

by Chris Borgen