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.


22 Responses

  1. Thank you again, Mr. Bellinger, for your response. Would it be possible for you to provide two additional clarifications, regarding two questions I had posed earlier:

    (1) Regardless of the applicability of GC IV, does your government now have a clear position on the fundamental guarantees in Article 75 of AP I, which it has always recognized as the most minimal guarantees which anyone participating in a conflict is entitled to. I ask this question because you have adopted an ambivalent position of “looking into” the question in an earlier interview with Anthony Dworkin, available on the Crimes of War website.

    (2) After Hamdan, do you realize that it is pointless to talk about lawful and unlawful combatancy, as these concepts are totally meaningless in a non-international armed conflict?

    Finally, I must say that am somewhat bemused by your government’s position on the applicability of human rights treaties to those detained in the war on terror. I don’t think that your conception of the lex specialis nature of IHL in relation to human rights law is a faithful interpretation of the ICJ’s Nuclear Weapons advisory opinion. Your position is that IHL simply displaces HR law in its entirety, even if the latter continues to apply formally. The idea behind the ICJ’s ruling is entirely different (para. 25):

    The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

    There are absolutely no rules of IHL restricting the human rights law prohibition on torture and inhuman treatment. If unlawful combatants are not entitled to any protections under IHL, not even humanitarian ones, as your government states, that in no way leads to the conclusion that the CAT’s prohibition on torture does not apply, or is somehow supplanted by an IHL lex specialis non-rule that there is no rule.

    Again, many thanks, your comments really are much appreciated.

  2. “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.””

    The fact remains that what Geneva 4 actually says is that anyone who is not protected by GC1, GC2, or GC3 is protected by GC4, and the only exceptions relate to the persons nationality, not their alleged activites. The Geneva Conventions were not intended to be a ‘safety net’ for any war criminal of any status, as the grave breech provisions make clear, while legitmate combatants equally have no protection under Geneva 4. So what?

    The language of GC4 art. 4 is unambiguous, and the provisions of GC3 are irrelevant to GC4 beyond disqualifying anyone who is protected by GC3. No one is proteced by both.

    This isn’t just Geneva either — the IMT Charter (1945) states the basics concisely in art. 6; Hague IV (1907) also applies, in particular the Martens clause and arts. 22 &23 of the regulations.

    If you’re taking questions, here’s a few quick ones:

    * You mentioned that these alleged “terrorists” had committed “crimes” which could not be prosecuted under US law as of 911. I’m not asking for details of cases, but could you be specific as to the particular elements of the crimes you were refering to?

    * Where is the line between conspiracy and guilt by association if any?

    * What can you tell us about the status, treatment, and whereabouts of Khalid Shiekh Mohammed’s wife and children?

  3. I just want to make one general comment. I have no doubts about the high legal quality and sophistication of U.S. position on all these issues. They all have been drafted with great skills and great knowledge of international law. However, I have got the impression that often, we are losing sight of the forest for the trees. This is especially sad when we are dealing with human rights law or humanitarian law (Geneva). I think it is important to be at all times aware what the point, the rationale of this law is. That is the protection of all humans, their lives and dignity.

    Let me just give one example. The U.S. position on the applicability of HR treaties. As Mr. Bellinger writes: „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).“ Yet, such a view ignores a broader context and in the end leads to absurd consequences. First of all, textual interpretation is not the only method of interpretation in international law, moreover historical (travaux) is just supplementary (article 31 and 32 of the Vienna Convention on the Law of treaties). So we must put this proposition into the context and also look at the purpose of HR treaties. Basically, what the U.S. position says is that if we have detainees in our custody on U.S. soil we cannot torture them. But let us just take them a few miles off the coast to the high seas and we are free, as a matter of international law, to torture them there. Many fundamental HR obligations could be evaded in this way, even though as a practical matter both for the victim and concerning the act of the state (attribution of the conduct to the state) there is absolutely no difference. Such a consequence runs contrary to the whole purpose of setting up HR treaty, which is that, in this example, noone should be tortured.

    So my point is just that before plunging into arguments about exact meaning of that provision or that phrase, we should ponder for a while about what is the whole point of it. There are two basic possibilities – either we want to protect human lives and human dignity of all or we want to pursue some interests of our own.

  4. I, too, disagree with the position of the US government on the extraterritorial (non-) applicability of human rights treaties.

    Indeed, the travaux preparatoires of Article 2(1) ICCPR also fail to support the American contention. The phrase on its territory’ was inserted at the request of the United States, and was intended – by the US representatives and those who accepted their proposal – as ruling out the application of positive obligations outside the national territory. The only relevant convern was that a State was in no position to guarantee a certain state of affairs in an area beyond its borders, and to that end to control the conduct of others. There was no suggestion that it would be impossible or in any sense undesirable for a State to control its own conduct abroad. Indeed, any such submission would be quite absurd, as Jan points out above.

    It is true, of course, that European authority on the meaning of the phrase ‘under its jurisdiction’ has given a somewhat more limited scope to the extraterritorial application of human rights obligations than the jurisprudence of the Human Rights Committee (with which the US government disagrees) has done. It might, in fact, be arguable that there is no ‘jurisdiction’ in this particular sense where a State only enjoys very limited influence over (the rights of) a person, such as might be the case where a NATO war plane has power of life and death over persons in its target area, but no facutal power to affect them in a way comparable to the comprehensive power of a State within its territory: see Bankovic et al. v. Belgium et al., at para. 75. (Mind you, this is in itself a highly contentious question).

    But this proposition does not begin to support the position of the US government. It does not nearly rule out the ‘jurisdiction’ of the US over places like Guantanamo Bay, or other parts of the world where US authorities (including, obviously, its armed forces) do exercise effective and comprehensive control. Indeed, it rather confirms that there is US ‘jurisdiction’ in all such cases. To give an example, such jurisdiction may therefore extend to US military installations in Iraq (particularly military prisons), but probably not to the whole part of Iraq where US forces are deployed: see R (Al-Skeini) v. Secretary of State for Defence (The Redress Trust intervening) [2005] EWCA Civ 1609, [2006] 3 WLR 508 (a decision of the English Court of Appeal, applying the European case-law).

    This means further that the obligation not to send people to places where there is a real risk that they will be tortured also applies extraterritorially. It follows, of course, not only from the CAT, but also from Article 7 ICCPR, so the prohibition of exposure to a real risk of ill-treatment applies whenever there is State ‘jurisdiction’ (Article 2(1) ICCPR again) over a person outside the territory of the relevant State. And, of course, such ‘jurisdiction’ will exist once agants of a State have a person within their actual control, for instance after having arrested that person abroad, possibly even in violation of the sovereignty of the State where the arrest took place: see Ocalan v. Turkey, at para. 91.

    So, if the non-refoulement rule applies extraterritorially under the ICCPR, there does not seem to be much sense in denying the same effect to Article 3 CAT. After all, this article was designed to reflect this human rights obligation, as it had been found to exist (at the time the CAT was adopted) by the European Commission on Human Rights (see Kirkwood v. United Kingdom, at pp. 182-3).

    (I have made these points earlier, with references: EJIL 17 (2006), pp. 349, 366-7)

    I note, of course, Mr Bellinger’s and the US government’s assurance that ‘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’ (Mr Bellinger, above). Insofar as this renounces any right to pursue the alleged programme of ‘extraordinary rendition’ (a euphemism if I ever heard one), this assertion is most welcome.

    But it does not go far enough. In particular, it does not meet ‘the standard the United States agreed to in Article 3’. As Mr Bellinger points out, the ‘matter of policy’ referred to arises only where it is ‘more likely than not’ that torture will ensue as a result of any removal from the jurisdiction. This, of course, coincides with the US interpretation of Article 3 CAT, as declared on ratification, but it is quite difficult to argue that this is a good interpretation of the article.

    The article itself speaks of ‘substantial grounds for believing’ that torture will ensue, and the Commitee has explained that such grounds must ‘go beyond mere theory or suspicion’ (General Comment No. 01, at para. 6). Like the article as a whole, this test would seem to be inspired by the jurisprudence of the European organs under Article 3 ECHR, under which the prohibition of removal applies ‘where substantial grounds have been shown for believing that the person concerned (…) faces a real risk of being subjected to torture or to inhuman or degrading treatment’ (Soering v. United Kingdom, at para. 91).

    This ‘real risk’ test is clearly less demanding than the test proposed by the US declaration, which is essentially a test of the preponderance of probabilities (whether this would apply under US law, given the importance of the right involved, may be open to question – see Addington v. Texas 441 US 418 (1979) – but this takes us nowhere). A ‘real risk’ of an occurrence may be present even if such occurrence is not probable: see the disagreement in the House of Lords, in a different context, between the Lords proposing a ‘real risk’ test, and those preferring the more conventional (civil) test of the balance of probabilities, in A and Others v. Secretary of State for the Home Department (No. 2) [2005] UKHL 71, [2006] 2 AC 221, at paras. 56, 59, 118.

    The assurance that the US will not act contrary to its own understanding of Article 3 CAT is therefore not entirely satisfactory. Indeed, an English court has recently noted as much, in assessing whether a person extradited to the US faced a risk of ‘extraordinary rendition’ to a foreign torture chamber: Ahmad v. The Government of the United States of America [2006] EWHC 2927 (Admin), at para. 86 (per Laws LJ) (the court there also set out much the same reasoning I have presented above).

    But enough of this. I have one final point, relating to Mr Bellinger’s protestations over the principle of proportionality. He asks critics of the administration to themselves maintain a sense of proportion, and to see that the US by and large complies with the law. This is fair enough, and I hope I have done so. But this also has precisely nothing to do with the principle of proportionality as a legal matter. It is a political point, and a good one, but it has no legal value whatsoever. Nowhere does the law require that the aggregate of the various actions of a State be proportionate to something or other; the requirement is far more specific than that. Thus, action in self-defence must be proportionate, and the proportionality of State interferences must be observed under any of a number of human rights provisions. Nowhere is it a defence against a charge of disproportionality in one, possibly quite limited, respect to show that other cases have been handled correctly, or that the overall policy is quite reasonable.

  5. The U.S. Supreme Court has held that “[w]here a treaty admits of two constructions, one restrictive as to the rights, that may be claimed under it, and the other liberal, the latter is to be preferred. . . . Such is the settled rule in this court. Hauenstein v. Lynham, 100 U.S. 483, 487 (1879); see also Jordan v. Tashiro, 278 U.S. 123, 127 (1928); Tucker v. Alexandroff, 183 U.S. 424, 437 (1902) (“As treaties are solemn engagements entered into between independent nations for the common advancement of their interests and the interests of civilization, and as their main object is, not only to avoid war and secure a lasting and perpetual peace, but to promote a friendly feeling between the people of the two countries, they should be interpreted in that broad and liberal spirit which is calculated to make for the existence of a perpetual amity, so far as it can be done without the sacrifice of individual rights or those principles of personal liberty which lie at the foundation of our jurisprudence.”); Geofroy v. Riggs, 133 U.S. at 271. The Bush Administration repeatedly has failed to construe the GCs and other IHR and IHL treaties liberally. For example, Mr. Bellinger claims that the ICCPR does not extend extraterritorially based on the purported plain text of the ICCPR and the travaux. Jan (above) is absolutely correct in his analysis of the ICCPR based on the Vienna Convention: the ICCPR must be interpreted to apply extraterritorially. Indeed, the UN Hum. Rts. Ctte. repeatedly has held so. States-parties to treaties will almost always dispute the meaning of treaties; therefore, the U.S. Supreme Court was wise enough to require that treaties be interpreted liberally. And, international tribunals or quasi tribunals (such as the UN Hum. Rts. Ctte.) have jurisdiction to settle such conflicting state-party interpretations. But, the Bush Administration continues to disregard such U.S. and international law.

  6. “Of course, we share the concern about not sending people to face torture. [..] We do not transfer people to countries where we believe it is more likely than not that they will be tortured.”

    Maybe as a matter of policy, the US should take a more restrictive view than their interpretion of art 3 CAT. Just reread the quote paragraph. How can you in the same paragraph say that you care about not sending people to face torturen and say at the same time that you will render if the is (a little) more likely that detainees won’t be tortured?

  7. While the critiques noted above make lawyerly arguments, IMHO, they do not demonstrate that the US position is either in bad faith or as untenable as political opponents suggest.

    Indeed, so long as the US is under attack by anyone, I am of the opinion that it is in our national interests to assert the most aggressive position possible, much as organized advocacy groups have argued in this country through the twentieth and twenty first centuries.

    I believe it is not the job of our Government’s lawyers to hew to conservatively “correct” positions, or to consider themselves bound to any concensus position. Rather they must take the positions they believe are going to protect the US in both the short and long run.

    As a litigator who has served as a Government lawyer in a combat zone, I believe folks in Mr. Bellinger’s position are taking the correct advocacy approach in the arena of International Law.

    There is. IMHO, nothing in his exposition of our nation’s position that is embarrassing or that would be subject to Rule 11 sanctions were that position being asserted in Civil Litigation in the US.

  8. Dear Jim, thank you for the post, which helps me to further clarify and expand my point I was trying to make above. Leaving aside now that some of the positions of the U.S government are legally wrong as so many here in the past day have argued there is the fundamental issue of what is the whole point of it. As you say, it is most probably that the U.S. government adopts such position that they believe are best for their interests. Even if that means torturing someone or sending someone somewhere where they will be likely tortured (which is morally almost the same). So that means that while pursuing my interest, I ignore legitimate interests of all others. (I hope we can agree that not being tortured is a legitimate interest of everybody). In other words it means pursuing my interest to the exclusion of all others.

    Yet, human rights law and humanitarian constitute essential checks on an unhindered pursue of my interests. Not realising this leads to the main misunderstandings, I think. Human rights law is here to check on us that we do not do certain things even though from OUR point of view they might look reasonable.

  9. Jim,

    I fail to see the added value of the assertion that a given US argument is made in bad faith. As a lawyer, I find it quite sufficient to argue that it is wrong.

    The bad faith argument also seems to me to be entirely subjective. Even a very bad argument can be made in good faith, and for understandable reasons (though, by definition, not for good reasons). Asserting bad faith is therefore little more than a slur on the person making the argument in question, and detracts from the reasoning of any person making that charge.

    But you hint at something that has struck me about Mr Bellinger’s posts: he seems to defend the position of the US government in much the same way that you do, i.e. by saying that they are made in good faith, and that there is something to be said for it. But should he not argue that the position of his government is correct?

    Of course, he will believe that to be the case. But the fact that he often makes his argument in rather more cautious terms suggests that he expects a rather critical attitude from the readers of this blog. He is, of course, very largely right in this, and I must admit I rather like that.

  10. Thus, action in self-defence must be proportionate, and the proportionality of State interferences must be observed under any of a number of human rights provisions. Nowhere is it a defence against a charge of disproportionality in one, possibly quite limited, respect to show that other cases have been handled correctly, or that the overall policy is quite reasonable.

    I see no reason to defend against charges of disproportionality in light of their being no real case that there is such a requirement. I don’t see any reason to believe amazingly strained interpretations of “unnecessary suffering” clauses will hold up.

  11. Mr Gross,

    As you will appreciate, my statement above, which you quote, relates mainly to the working, the content, of a requirement of proportionality, and not so much to its existence. On that, I would be content to believe Benjamin Davis, Geoffrey Corn, and yourself, as cited by Mr Bellinger above.

    However, I mentioned that there is a requirement of proportionality under Article 51 UN Charter, as confirmed by Nicaragua and Legality of the Threat or Use of Nuclear Weapons, and relating to the intensity of action in self-defence (though not to some other points made by Benjamnin Davis, which concern the protection of civilians, and hence humanitarian law). I do not resile from that.

    Nor do I take back my somewhat general statement that the principle of proportionality is part of human rights law. This is a rather trite statement.

    I assume that you would not take issue with this point, so I do not elaborate.

    You seem to suggest that there is no requirement of proportionality as regards the protection of civilians from attack in armed conflict. If so, I disagree. Consider, for instance, Article 51(5)(b) of the First Additional Protocol to the Geneva Conventions, prohibiting indiscriminate attacks, and defining as such inter alia: ‘attack[s] which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’

    True, this requires a bit more than that the injury caused to civilians be out of proportion to the military advantage pursued, in the sense that such injury only just outweighs the aims of the attack, but if the disproportionality is clear, there is a violation.

    I therefore find neither all of Benjamin Davis’ comments, nor my own, disproved.

  12. Or have I misunderstood your comment? Your earlier comment seems to suggest that you argued against the apparent proposition that the whole policy or strategy should be proportionate to something or other.

    If that is indeed your point, I quite agree (as I have done above). It is quite impossible to find a legal source for this proposition: it cannot come from either the jus ad bellum or the jus in bello, since it covers also non-military action within that policy, and it cannot come from human rights law, either, as it relates not to specific interferences with the rights of identifiable persons, but with a greater concept. Human rights law is not concerned with greater concepts; it is rather more focused than that.

    In addition, if the principle of proportionality really applied in the broad manner you may have criticised, it is very difficult to see to what the policy and strategy must be reasonably proportionate, since it is likely to react to a number of attacks, threats or other problems.

    But I prefer to read Benjamin Davis’ comment as a summary of all the various issues of proportionality arising under different legal regimes, and in distinct contexts (legally distinct, but clearly not politically). That is certainly how I understand Mr Bellinger’s reply, and my comment(s) above.

    If that is still missing your point, I’m afraid I’m stumped.

  13. As regards Mr. Bellinger’s Wrap Up, I was out at a Citizen’s Hearing on US Actions in Iraq: The Case of Lt. Ehren Watada this weekend so can only respond today.

    1) Good faith legal analysis by a state’s lawyer can be incorrect.

    2) Incorrect advice that is followed can lead to illegality.

    3) Illegal conduct based on such advice is only made legitimate by acquiescence of all concerned.

    4) Without acquiescence, such conduct is illegal and illegitimate.

    5) We will not acquiesce.

    6) Your advice is illegal and illegitimate. It retains its power only through the power granted to your position.

    7) Your advice is an abuse of power.



  14. 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.”

    Not a safety net but whether the concrete cases of Taliban and Al Qaeda fit into the GC III and IV. I say they do – you say they don’t. At a minimum, you are resiling from your predecessor William Taft IV on the Taliban. Not good enough.

    On proportionality – essentially you aske us to trust you and the Administration. I don’t as you have shown that you can not be trusted.



  15. “We do not transfer people to countries where we believe it is more likely than not that they will be tortured”

    I suppose it would be “uncivil” to call this a lie. It must just simply be a run of bad luck, how close to 100% of the ones we render end up being tortured.

    I have followed this very closely. Out of well over twenty cases that I know of, I can think of exactly ONE where the prisoner has not either made credible torture allegations or simply not been heard from again: Jamal Mari, rendered to Jordan and later taken to Guantanamo, does not claim to have been abused. That’s the only case I can think of. Can you name another such case? Can you explain why this information is not considered relevant in evaluating future “diplomatic assurances” not to torture? Because as I’m sure you know, Article 3 of the Convention Against Torture requires you to consider “all relevant evidence” in evaluating the danger of torture as a transfer.

    Can you explain why so many former CIA officials seem to be under the impression that the purpose of rendition is to torture prisoners? Would it do any good to list the cases, and the quotes?

    “Wild speculation.” Please. Please. If inaccurate allegations are sometimes too readily believed, it is because the administration has utterly lost any shred of credibility, because of posts like this one.

  16. Mr. Thienel’s second reply is a correct interpretation of my point. Apologies if I was so brief as to be confusing. I find Mr. Davis’s earlier statement unsatisfactory as he appears to be unwilling to cite individual instances of disproportionate military action, and instead appears to insinuate the entire endevour is somehow a violation.

    On proportionality – essentially you aske us to trust you and the Administration. I don’t as you have shown that you can not be trusted.

    This is an argument entirely outside the legal aspects of the matter.

  17. I am sorry that my earlier answer is unsatisfactory. Mr. Bellinger accepts (as he can not do otherwise in any event) that the issue of proportionality operates at a strategic as well as an individual action level. I would suggest that Mr. Gross should be willing to do that also.

    On the strategic level, to my surprise thanks to Mr. Bellinger, I come to question the entire endeavor of the War in Iraq and whether it is a proportionate response to 9/11. I also question the secret prisons, the torture and cruel inhuman and degrading treatment, the extraordinary renditions, the fanciful MCA – in a word all of the actions that seem to have come from rather hyper restrictive interpretations of basic international law texts or customary international law rules. The Iraqi Special Tribunal and its rules which did not allow the defendants to select their own counsel and had low standards for admission of evidence based on torture (significant departures from Nuremberg that trouble me greatly) are further concerns.

    I am sorry I am not privy to the kind of intelligence that would permit to raise issue with specific actions other than those we hear about in the news (Abu Ghraib, Colonel Steele, Somali action 500 killed in seeking to get 5 Al Qaeda, etc.). I am sure that one day it will all come out just how awful it has been.

    In this regard, might I refer you to the Citizen’s Hearing on the Actions of the US in Iraq held at Tacoma, Washington on this past weekend. I will paste in my trip report from that for your information.

    Begin Trip Report

    On 1/23/07, Davis, Ben wrote:

    Dear Colleagues,

    Scott Horton of the Center for Constitutional Rights who spoke at the Nuremberg Conference at BGSU this past fall suggested my name to be a testifier to participate in the above event which happened this past weekend at Evergreen State College in Tacoma, Washington. More information about it is available at http://thankyoult.freelock.com/content/view/34/29/.

    A similar program is being organized at Brooklyn Law School on February 3rd, 2007.

    Lt. Ehren Watada is being court-martialed for refusing a troop movement when ordered to ship out to Iraq. He asserted the order for troop movement is an unlawful order to participate in an illegal war. He also is being court-martialed for statements against Bush that are alleged to be conduct unbecoming an officer. He asserted First Amendment protections. Both defenses have been rejected by a military judge as a preliminary matter (political question doctrine and limits on First Amendment protections) so he is not permitted to raise them at his court-martial on February 5. One can learn more about him at http://www.thankyoult.org.

    The first speaker was Geoffrey Millard, who served 8 years in the New York Army National Guard at Ground Zero, in Kuwait and 13 months in Iraq. Geoffrey Millard spoke of the type of in country briefings he recieved in which the Iraqis were regularly referred to as “F***ing Hajjis” by his superiors as in “What do you do if a F***ing Hajji kid stands in the middle of the road?” He spoke about the process of dehumanization of the Iraqis by the Americans in the training and in the actions. He was ashamed of his service and wished he had had the courage of Lt. Watada.

    The second speaker was Harvey Tharp, former U.S. Navy Lieutenant and Judge Advocate General (JAG) stationed in Iraq; first officer to resign due to the war. Tharp had been doing signals intelligence in Hawaii when there was a determination to reduce staff there. Persons who sought to stay on had to volunteer for other assignments and – as he was an Arabist – he volunteered for Iraq. He was there with the Coalition Provisional Authority in the North with responsibiilty for development projects. He knew nothing about what he was doing and he was keeping the place going pending the arrival of a British official.

    He spoke of a case afrter an IED had exploded when soldiers went out to a field and the Iraqi woman and her two kids working in the field ran and were shot at injured and killed by the U.S. soldiers. He said that the soldiers were operating under Rules of Engagement that permitted them to shoot people seen to be evading capture. He mentioned that there had been a series of incidents of killing or shooting civilians that rose at one point and that he spoke about needing to change the Rules of Engagement to avoid more civilian casualties. He became greatly troubled during the battle for Falluja in which he saw much of the battle being led by analysts of the National Security Agency in DC.

    He mentioned also a scene where during a traffic stop a soldier had opened fire on an Iraqi car killing the family inside. During the after action briefing when they came to examining the incident, he remembered a full bird Colonel saying, “If these F***ing Hajjis would learn how to drive, this would not happen.” Apparently, no one reacted to this comment and he felt deeply that this attitude towards the Iraqis was something that went right up the chain of command. He was so disgusted with his experience, he resigned. He lives in Cincinnati.

    Both are members of Iraqi Veterans Against the War.

    After lunch, Daniel Ellsberg spoke. He mentioned several points, to wit:

    1) The search of his office that got Nixon in trouble would be legal under the Patriot Act.

    2) The troop surge is to put down the Sadr City Shia militias which will have the effect of having both the Sunni and Shia against us. Then, a pretext will be developed in the Persian Gulf to get the Iranians to attack us. The President will then invoke that to start an attack on Iran. I asked the person next to me David Halliday formerly of the UN if he thoguht this was overblown rhetoric and he thought not at all.

    3) Pretexts of this kind had gotten us into prior wars citing back to the Mexican American War and the purposeful movement of U.S. troops into disputed territory in order to provoke a respone from the Mexicans. Then the President was able to declare the US soil had been attacked and he could go forward with the war. Ellsberg cited Abraham Lincoln as a one term and only one term Congressman who voted against the Mexican war. During his time in the House, Lincoln apparently introduced what was called the Spot Resolution every day to ask the government to identify the exact spot where these American soldiers had been engaged with the Mexican troops. Ellsberg also mentioned the Gulf of Tonkin incident.

    4) On discussion of the right to resist unlawful orders or the obligation to resist, he told the story of the Warrant Officer at My Lai who had ordered his helicopter to place itself between advancing US soldiers and Vietnamese children and had told his gunner to shoot the US soldiers if they blocked him from gathering the Vietnamese children together and flying them out of there to safety.

    5) He said that the stopping of the Vietnam War process went hand in hand with the effort to impeach Nixon process.

    Richard Falk of Princeton and myself were next. Dick spoke to the question of whether the war was illegal or not as a crime against the peace (aggressive war). He concluded under the Nuremberg Principles and the Army Field Manual that the War in Iraq was a crime against the peace and aggressive war and that soldiers are obligated and have a right to resist unlawful orders. He examined the Security Council Resolutions and the right of self-defense and did not consider that either were adequate bases for the War in Iraq.

    I spoke on Lt. Watada (whether he might seek rehearing, interlocutory appeal or appeal, the fact he was being martyred), crimes against humanty in Iraq, war crimes and what to do now.

    As to Lt. Watada, I said that this moment felt to me lika a Korematsu moment (Many citizens in Seattle-Tacoma had protested to no avail in WWII the Japanese-American internments and fought the internments in solidarity with their neighbors of Japanese ancestry). I said we should stand with Lieutenant Watada. I mentioned Shit Rolls Down Hill and said statistically lietuenants were the highest percentage group of officers court-martialed and that generals are given the opportunity to retire. I mentioned the FUBAR (Fouled Up Beyond All Recognition) rule and that was an appropraite description of Iraq.

    On crimes against humanity, I referred to the definitions in the Statute of the International Criminal Court and the ASIL Centennial Resolution and said that I think probably yes crimes against humanity have been committed and that more evidence has to be brought forward about U.S. actions in Iraq.

    On war crimes, I thought we had defifnirtley committed them (citing Abu Ghraib) and that Abu Ghraib was only part of a broader picture for which more evidence would have to be brought forward. I presented the problem of military, military contractor, and civilian (intelligence) being under different legal regimes and the military persons being most likely to be prosecuted when the “shit hits the fan”.

    On what to do, I told them about the history of the two German cases and the Italian case on extraordinary renditions. Inside the United States I said that the political question doctrine, state secrets doctrine, and federal officer immunity doctrines appeared to be a pattern accepted by US courts to block consideration of the legality of the war or US actions in that war (as has occurred as regards Lt. Watada’s defense) whether in criminal or civil process. While I fully expected Watada’s case to go to the Supreme Court, I did not expect the Supreme Court to step out of those doctrines. I contrasted that with what foreign or international tribunals would do. So I said that we should not look to our courts to give a solid response as they are incapable of doing it and we need to turn to our political branches and force them to make the US comply with its international law obligations.

    I pointed out that the internatioanl obligations of the United States are on all branches of the government (including the CIA). I said I considered Lt. Watada in the best tradition of the military by refusing an order he considered unlawful as it was an order to fight in an illegal war. I spoke about the issue of UN authorization, self-defense, but most significantly (for me at least) on the issue of the proportionality of the US response to the 9/11 attack. Richard Falk talked about this in the context of the just war theories of the Catholic church and how those theories interweave into international law on proportionality found both in treaty and customary international law. The concern was with how one can see the War in Iraq as a proportional response to 9/11 in light of all the evidence of no weapons of mass destruction or ties between Al-Qaeda and Iraq.

    I warned that we are likely to enter a period where persons will say that the war is illegal but legitimate (like at the time of the Kosovo bombing without UN authorization). I reminded persons that the legitimacy would come only from ascquiescence by all of us in the illegal action. I urged persons to resist for the reasons that the resistance fighters from WWII told me for why they resisted against the Nazis “Because it was not possible for this to happen in France.” I said it was not possible for this to be happening in the United States.

    I said that if we resist, this illegal war will not be given legitimacy and will remain illegal and illegitimate. But this requires mobilization of citizens.

    Asking about legitimacy of the war in Afghanistan, I said that assuming the armed attack of WTC and the September 12 UN resolution and the US right of self-defense that war probably passes the test of the Charter, but there were severe war crimes committed due to the awful decision in 2002 to treat the Taliban and Al-Qaeda detainees outside of the Geneva Conventions. That led to the abuses that migrated to Gitmo and from there to Iraq. I mentioned the comment made by someone that we lost the war when the pictures from Abu Ghraib came out. I said those decisions were taken at the highest level as Brigadier General Karpinsky testifies of being shown a written order from Rumsfeld by then General Miller (the man sent to Gitmoize Abu Ghraib) authorizing the actions that occurred.

    Dick Falk questioned the “official version” of the 9/11 attacks and says the key question was the decision to move from law enforcement to a war footing at that time. He spoke to acts and omissions of the US to prevent the 9/11 attacks.

    I reminded all present of Hersch Lauterpacht’s 1941 The Reality of International Law speech given in London during the darkest days of WWII. Lauterpacht said it was the citizen’s responsibillity to force his/her government’s compliance with its international law obligations.

    Richard and I concurred that Lt. Watada should receive justice for his courageous stand. I said that the way it works in the US is that 50 years from now, when we are all dead, Lt. Watada would receive an apology for what was done to him. I said I thought that he should get justice now. I also agreed that this was one step in the process of beginning to make sure there is justice for the Iraqi people.

    Richard and I received a wonderful ovation from the crowd. Daniel Ellsberg shook my hand which was kind of a kick.

    Lt. Watada showed up at lunchtime and seemed measured in his decision to do what he is doing. He talked about moving past protest to doing things that end the war through our actions. He is willing to suffer the consequences of his actions. I find the youtube video on his website quite something to watch.

    I heard his father was a fearless leader of the Hawaian Campaign Finance Committee that had rooted out corruption over ten years in Hawaian Democratic politics.

    Irony of all ironies, the couple I stayed with were a professor of French and his French wife Mark and Agnes Jensen. We had a francophone breakfast. I find these french moments are always signs of important moments in my life. So I share this all with you as each of you reflect on what you can do.

    As I mentioned another of these Citizen’s Hearings is going on in New York at Brooklyn Law School.

    Lt. Watada’s court-martial is scheduled for February 5 and they are calling for a day of action that day.



    End Trip report

    Trust is precisely what Mr. Bellinger is requesting from us. And it is perfectly acceptable to say to someone that, based on their track record, you do not trust them. It is civilized also.

    The Iraqis are not F***ing Hajjis, my friend. They are humans.



  18. True, Mr. Bellinger does indeed essentially concede the issue in his post:

    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.”?)

    I admit I was a little surprised the Caroline incident didn’t come up earlier in the discussion. Whether a diplomatic exchange that approaches 200 years in age and which essentially was rejected (The British offered only an apology for violating American territory, not the act itself) provides a firm basis for an international obligation, well, I can only say it’s no more flimsy than the other explanations put forth during this exchange.

    As for the non-binding ICJ advisory opinion, I hardly feel it need be touched.

    However, as Mr. Bellinger (and one would imagine, by extension, the US government) doesn’t care to contest the point, I won’t bring it up again, as it is not salient to the central argument, as both sides agree on that point. I simply state that I feel the United States is unwise to concede to such a tenuously supported obligation.

  19. Mr. Gross,

    The United States is not alone in the world and proportionality is not a tenuously supported rule. It is an essential rule of the laws of war. And I am beginning to appreciate more why it is spoken of also along with necessity in so many circumstances. The combatant’s privilege is subject to limits such as the proportionality of the response. How could it be otherwise? Without proportionality the gravest horrors of our common history can be explained away. Do not dismiss such a core rule in such a light manner please. Proportionality also helps us understand the terrible liberties that are being taken with our blood and treasure on the most flimsy of grounds in our starting the War in Iraq as a supposed response to the 9/11 attack.



  20. “We do not transfer people to countries where we believe it is more likely than not that they will be tortured”

    I suppose it would be “uncivil” to call this a lie.

    Ya, that always strikes me as a little bit wierd too Katherine… I’d call it a fact personally, and wonder why the person turning their nose up thinks that when…

    * they are trying to tell me for the unteenth time that 1 + 1 = 0, pigs can fly like birds, and that under the United States Constitution, George W. Bush has all the powers of Augustus Caesar…

    * I claim that they are variously misrepresenting the facts, asserting fallacies, and ignoring reality for the purpose of perpetrating a deliberate fraud…

    * And that, oh by the way, what they are really doing, on information and belief, is committing war crimes which are Federal Felonies pursuant to 18 USC 2441(c)(1-3) etc.

    That somehow it is me who is being discourteous, when it is they who are who are lying to my face and committing and / or aiding and abetting crimes we once executed Nazis for committing.

    It just absolutely blows my mind. Who do they think they are kidding?

    I know this much: they’ve haven’t fooled me for one minute, and I’ve got five years of recorded history that back me up on the facts and the law 100%.

    And I don’t mean to be rude at all, I’m just trying to get the truth and defend the rule of law. I always thought the law was supposed to be about the truth my self, but then, I’m not a lawyer.

    Then I got divorced, and learned that people who think the law is all about the truth are naive — the hard way.

    Funny thing is, I’m not naive, but I still think that the law is all about the truth.

    But lest I be thought discourteous led me add:

    Mr. Bellinger writes beautifully well.


  21. On the proportionality issue again:

    I think there is a bit of a misunderstanding regarding the term ‘strategic level’. Mr Bellinger cites the Caroline for the proposition that action must be proportionate also at that level. I agree that the Caroline incident, and the Legality of the Threat of Nuclear Weapons opinion, support the proposition as regards the law of self-defence. Action taken in self-defemce must certainly be proportionate; tis means that the measures taken to defend oneself against an armed attack must not be out of proportion to the end of repelling the attack.

    (Note: this does not mean that the victim State can only use as many forces in its defence as the aggressor has used in the attack; it means that the sum total of the uses of force employed in self-defence must not be excessive, so that it is perfectly lawful to use overwhelming force, and thus end the conflict fairly rapidly)

    This is certainly an application of the principle of proportionality at a strategic level, namely at the level of the overall military planning of action in self-defence.

    But the same rule does not extend to other strategic issues, such as the issues of torture, including the programme of ‘extraordinary rendition’, or the secret prisons.

    Indeed, I see no authority for the proposition that everything and anything to do with the ‘war on terror’, as an aggregate whole, must be proportionate to something or other. As I have pointed out above, the source of such a rule is quite difficult to pinpoint, as different bodies of law apply to different aspects of the overall campaign. It is also as difficult to identify a common frame of reference for all actions in the campaign, whch would be necessary to say precisely to what the campaign as a whole must be proportionate. One should bear in mind, in that respect, that proportionality is not simply a requirement of reasonability, but demands a proper relationship of scale and importance between clearly identified countervailing interests.

    Of course, none of this should give any comfort to apologists of the worst excesses the Bush administration stands accused of. Indeed, my first comment on this issue specifically rejected Mr Bellinger’s proportionality argument.

    So, to clarify: there is no overall requirement of proportionality, as this is unsupported by law and probably impossible in logic. However, there are various requirements of proportionality with respect to more clearly identified aspects of the ‘war on terror’. Action in self-defence must be proportionate, interferences with human rights must be proportionate (if they are not absolutely prohibited, as in the case of troture and ‘extraordinary rendition’), and injury to civilians in military action must not be disproportionate to the aims of the specific attack concerned. The list goes on.

    I think that this view of the legal relevance of proportionality is actually much stricter than the concept of overall proportionality. On my view, the various and distinct questions of proportionality are not answered by reference to acceptable action in unrelated respects. If the US acts quite lawfully in some respects, that still has no influence on the proportionality investigation in others. If, however, the requirement is quite general, the appropriateness of US action in one case might well outweigh serious doubts in a quite separate case. This is not, and cannot be, the law.

    I therefore agree with Mr Davis that all sorts of proportionality issues arise with respect to the ‘war on terror’. I merely insist that it is not one issue of proportionality, but a great number of separate legal questions.

    (Incidentally, I disagree with Mr Gross’ comments on the authority of the Caroline incident and the Nuclear Weapons opinion. The Caroline formulations have been accepted as a true statement of the law ever since, and the binding or non-binding effect of an ICJ decision says precisely nothing about its authority, much less its correctness, as a statement of the law. If the latter point did not hold, legal statements by the ICJ would only ever be accepted as true by the parties to a decided contentious case [Articles 59 of the Statute and 94(1) of the Charter]; it stands to reason that this is not the case.)

  22. On a very different issue, it may be noted that the Director of Public Prosecutions for England and Wales said yesterday: ‘On the streets of London, there is no such thing as a war on terror’.

    Sir Ken Macdonald argued that the rhetoric about ‘war’ was mistaken, that the terrorist threat was a law enforcement issue, and that there should be ‘legislative restraint’ in reacting to this threat, as opposed to the ‘fear-driven and inappropriate’ response that we have seen.

    See the article on this speech in The Times, here.

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