Wrap Up Discussion II

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concluded that “the Geneva Conventions are failing to provide necessary protections because they lack clarity and are out of date.”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:

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.