Wrap Up Discussion II

by John Bellinger

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you all for joining me in this discussion.


13 Responses

  1. Just to be clear, I was not arguing about whether the “more likely than not” standard is the correct one under Article III of the CAT. I was arguing that your administration has sent people to countries in situations where it was blatantly clear that the risk of torture was over 50%, and where no reasonable person could have believed in good faith that the risk of torture was under 50%. I have researched every publicly reported case of rendition in excruciating detail, and the risk of torture is well over 50%–actually it appears to be well above 75% though since your administration classifies all the evidence it’s hard to establish this with any degree of certainty.

    The administration seems to take the position that receiving a diplomatic assurance from Egypt, Syria, Uzbekistan, etc. gets you off the hook, and you can pretend that you believed in good faith that the odds of torture were under 50%. But the Convention Against Torture very clearly states that in evaluating the risk of torture, a country must consider all evidence relevant to that danger. In deciding whether to turn over a prisoner to an Egyptian prison, you are not free to ignore the well-known and well-documented history of torture there. In deciding whether Egypt’s “diplomatic assurance” not to torture the prisoner is enough to override the evidence of brutality in their prisoners, you are not free to ignore the fact that the last dozen guys you rendered to Egypt after receiving similar assurances were tortured.

    This is a clear and willful violation of Article III of the Convention Against Torture, as ratified by the U.S. Senate. A lawyer really ought not to defend it.

  2. Mr. Bellinger’s invitation to a legally rigorous debate, that relies upon how the law is, not how we would wish it to be, is laudable but somewhat disingenuous. In the inchoate jurisprudence of international relations, law is a political policy. Not often an objective imperative.

    There are three further concerns I have with Mr. Bellinger’s analysis of the ongoing counterterrorism operations against the worldwide al-Qaeda franchise. (In my remarks I have quoted from both his Opinio Juris blogging and his similar speech to the London School of Economics in October 2006.)

    First is Mr. Bellinger’s certainty that this confrontation is an armed conflict, but that the “Global War on Terror” is not intended to denote this. Instead, GWoT means that “all countries must strongly oppose, and must fight against, terrorism.” Nevertheless, the likes of guest respondent, Professor Anderson, are rather taken with the “analytic power” of GWoT, comparing it, with approval, to the “Cold War”. Alas, the analytic power of the Cold War is blunted by the fact that it was neither a war against the cold, nor a “war” in any sense with which the Great Generation were tragically familiar. Instead, the Cold War – a pugnacious political, diplomatic and cultural rivalry – was preparation for a real war. A war that, blessedly, did not come. Absent from this debate is the fact that “war” is, historically, the paradigm of choice, of opportunity, of many modern governments responding to a plethora of challenges. Connoting, as it handily does, the incontestable patriotic need for enlarged executive powers, abridged individual liberties and collective self-sacrifice.

    Second, Mr. Bellinger’s belief that the United States is in an armed conflict with al-Qaeda is the sin qua non of his overarching analysis. The United States acts in self-defense after attacks on its “embassies, military vessels, financial center, military headquarters and capital city, killing more than 3000 people in the process.” However, this assertion depends upon these assaults being “armed attacks”. In the aftermath of 9/11, sympathetic international organizations – foremost, the UN Security Council and NATO – averred that they were. Nevertheless, viewed dispassionately at a distance, is this so? The 9/11 hijackers were armed with knives and box-cutters, infiltrated airport security and seized control of four airplanes: measured by its means, rather than its effects, a criminal, not a war-like enterprise. If the hijackers had been stopped, by airport security or sooner, would war have been waged? If all four planes had crashed landed, like the fourth, would armed force be justified? If the Twin Towers had not collapsed would war be declared? Mr. Bellinger rightly notes that an entity need not be a nation state to engage in an armed conflict, although the United States is not party to the treaty law, Protocol I of the Geneva Conventions, which best buttresses this point. He talks of “armies of transnational terrorists”. Yet, regarding detainees, the question is posed, is the war “over with respect to that person?” This seems inconsistent.

    Third, Mr. Bellinger draws upon the customs of war to correctly identify unprivileged belligerents. Yet, it is a peculiar war that has no POWs. Strange to be at war with an enemy entirely comprised of those ineligible for prisoner of war status. “Military force and the laws of war are [not] the only appropriate or legal approach to confront international terrorism generally, or al-Qaeda in particular,” Mr. Bellinger says. But, military force and the laws of wars are “appropriate and legally permissible” in “certain cases”. How and who decides what is and is not a “certain case”? I fear we know the answer. (An executive prerogative?) And it is not entirely comforting.

    Mr. Bellinger has belatedly begun a debate of fundamental importance which must be continued by lawyers and legislators in a way that moves – as Mr. Bellinger urges – from the merely theoretical towards useable and practical legal interpretation. Crucially, Mr. Bellinger – who evinces an impressive legal confidence in a complex and contradictory body of law – needs to allow this process to evolve his influential analysis where appropriate. International law and the laws of war lack the judicial and law-making apparatus that regularly resolves municipal legal controversies. It thus depends upon a self-imposed impartiality, caution and frankness thus far lacking in the United States’ practice.

  3. Thank you for your reply.

    To clarify: I accepted the value of your comments on the so-called ‘proportionality’ question as a political point. The US is certainly not ‘the number one threat to peace, security and human rights in the world’, as some apparently believe (see a blog post criticising this view here).

    I did not and do not think, however, that this point has any relevance to any legal notion of proportionality, which is always much less far-reaching. This is not to deny that political points and legal reasoning are always quite distinct (which they clearly are not), but to point out only that the particular political point made did not answer any legal question.

    I appreciated your clarifications on the territorial scope of the ICCPR, but I still think my earlier comments on that reflected the majority take on the issue, and I continue to agree with Jan’s points about the object and purpose of the Covenant, and in particular the depravity of planning human rights violations to occur outside the (perceived) scope of the Covenant.

    On the standard of risk to be applied under Article 3 CAT, I still maintain that the declaration of the US Senate does not properly reflect the content of the article.

    I now disagree fundamentally with your assertion that the declaration, as such, modified the treaty obligations undertaken by the United States. I am prepared to accept that it may govern the existence of the obligation as part of the law of the land, under the US Constitution, but this is not nearly the same saying the same for the United States’ treaty obligations on the international plane.

    The declaration is not a reservation; it is not expressed to be one, and since the CAT specifically allows for some reservations (Arts. 28, 30), and addresses a matter of jus cogens, it may well be said to prohibit (other) reservations in any event. It is therefore no more than an interpretative declaration. This has no legal effect at all; it may be correct, but it might as well not be. (Mind you, I have sought to show earlier that it was not)

    It is, certainly, an instance of State practice that is to be taken into account in the interpretation of the Convention, and it is indeed relevant that no State objected to it (but this must not be confused with objections in the law relating to reservations). However, it is in no sense detreminative of anything; it is relevant to the interpretation of Article 3, but nothing more; and it certainly does not have a greater weight than the other methods of interpretation.

    Indeed, subsequent and other State practice may be less relevant to the interpretation of human rights treaties than it is to many others. Where the rights at issue are those of States, their views of their own entitlements are clearly quite valuable. If a State does not think that it has a certain right under a treaty, it may even be taken to have waived its rights, so it might almost as well be said that the treaty has never given rise to such rights. However, human rights are not granted for the benefit of any State, so there can be no waiver by a State, and the views of a State should be accorded much less weight. Indeed, every State party may have an interest in construing human rights somewhat narrowly, so State practice will always give a skewed view of the extent of human rights. This would seem to be so especially under global conventions, where the parties may not share the same ‘human rights culture’.

    All this is, obviously enough, before we even come to the special weight to be given to the object and purpose of human rights treaties.

    To end on a more conciliatory note, I am unreservedly grateful for your comments on the State immunity questions.

    Of course, the possibility of proceedings whenever State immunity has been waived says nothing about the extent of such immunity in other cases, but there does seem to be a notable dearth of US cases in this respect (possibly because of problems of justiciability arising in many international cases).

    I note with delight your statement that a government official may well not be immune from criminal proceedings for crimes against jus cogens.

    I am not sure, from the structure of your explanations, whether you observe a distinction between the immunities to be accorded to former heads of State, and those of foreign government officials of other ranks. If you do see such a distinction, I disagree. Immunity ratione materiae attaches to the official acts of all State organs, and is only subsumed by immunity ratione personae in respect of serving heads of State. Therefore, when a head of State ceases to hold office, he or she will be in exactly the same situation as any other official. On balance, considering your – extremely welcome – reference to the law of State responsibility in the context of immunity ratione materiae, I imagine you agree.

    Again, thank you for your discussions on this blog. I may not always have agreed with you, and read some of your posts with a slight sense of exasperation, but they were always interesting.

  4. Dear Mr. Bellinger,

    You have written your truth (votre verite as the French have said) as have others. Your truth diverges from your predecessor William Taft IV on a very important issues – status of the Taliban under the Geneva Conventions. Taft said Taliban are covered as POW’s; you say they are not. Same office, same role, 5 years apart. The differences are that there is the Presidential Military Order of 2002 which accepted the OLC arguments and White House counsel advice (which you helped formulate) and the practice of what we have done with Taliban detainees in the intervening years. None of the legal instruments on the international plane changed and the domestic law does not appear to have changed that much.

    If to change the man means to change so substantially the advice of the Legal Adviser then the Legal Adviser analyses are not impartial expositions of the international law applicable. All one has to do to get the answer one wants is have someone espouse a position and then put them in the job. Or change out the one you disagree with.

    As you look back at the history of Legal Advisers and look at the young lawyers who are around you, I would submit that you should ask whether you are being a Good Shepherd of this vital role in our system.

    And I commend to you the American Society of International Law Centennial Resolution overwhelmingly adopted by your peers, your older experienced colleagues, from the United States and around the world and use it as a checklist to examine what you know is going on.

    Your arguments remind me of the warning of a great French professor of law who used to say at the end of his first year class “Mefiez-vous de la logique.” (Beware of logic.)

    I am also reminded me of the experience in stockbrokerage firms during the 1987 Stock Market Crash where the younger stockbrokers had never experienced a bear market and were absolutely in shock. The older stockbrokers who had seen such adversity helped the young hotshots through that trauma.

    The US seems to have responded in panic after 9/11 throwing out its first principles. Yet, in those dark days among the lawyers, Taft was a beacon of wisdom. Among the politicoes, Powell was a beacon of wisdom. Among the departments, State was prescient.

    Ponder that Mr. Bellinger and ponder what the oh so perfect analyses you have done that enable that panic have cost us.



  5. I join my thanks for this very helpful discussion by John Bellinger hosted by Opinio Juris. As a matter of concluding comments, we indeed saw some very thoughtful analysis, done in a much more competent and reasonable way than I have seen so far from the Bush administration, with the possible (and very limited) exception of William Taft.

    There is one basic problem which you have not addressed, except in a strange, Freudian-slip kind of way, by admonishing the opposing side in the debate for replacing the legal ‘is’ with their version of the legal ‘ought.’ I do accept that there certainly was some of that kind of thinking present in the debate, in no small part due to the rather regrettable and distasteful politicization of the American legal profession as a whole.

    At least in part, that is also how I see the Hamdan judgment of the Supreme Court, which arrived at a result which it had wanted in a way which is legally implausible. That is also just one of the reasons why I don’t think that Hamdan puts to rest any truly significant legal questions, as it certainly does not put to rest the basic premise of your entire argument, that is the existance of a global armed conflict between the US and al Qaeda.

    I do not think, however, that you have any right whatsoever to make such criticism, not for any personal reasons mind you, but for the virtue of your government office. You are, in fact, a crow calling the raven black (a metaphor I hope I got right, a non-native English speaker that I am). There is no-one more guilty of distorting the applicable rules and giving them an unreasonable, totally result-driven interpretation than the administration in which you serve. Complexities and ambiguities inherent in this area of the law notwithstanding, the administration’s only goal from the very beginning was not to make clear which rules, international and domestic, apply to its conduct, but to make it so that it is completely unfettered in its discretion.

    I am all for having a good, reasoned discussion on what the law applicable in the war on terror ought to be, and Ken Anderson, for one, has tried to open up this debate. Your government, however, has not.

    It has instead tried to use age-old mechanisms for something they were never meant to do, just to then decry them as obsolete or quaint. And it did so pursuant to intepretations which are not only wrong, but are so fantastic that one must wonder whether the lawyers in question were playing ‘Dungeons and Dragons’ when they should have been reading Oppenheim, Cassese or Dinstein, and then having the audacity to claim that courts should show deference to their interpretations as they are the ‘experts.’ Need I remind you of the now repudiated position that the Geneva Conventions did not apply between the US and Afghanistan because Afghanistan was a ‘failed state’? After that, it is somewhat difficult to take seriously the products that come from the same kitchen, even if the food actually smells nice this time.

    Nonetheless, I thank you again for your willingness to defend your government’s positions in the open forum that Opinio Juris provides to its readers, and for the time you have taken to respond to the readers’ comments.

  6. I am a little shocked when Quirin is so blatantly quoted out of context. The entire passage reads “The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are 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.”

    The eight Quirin saboteurs were unprivileged belligerents because they passed without uniform through US lines of defense. In the current conflict the same may be said of the 19 hijackers, Padilla, al-Marri, and Moussaui. It does not apply to KSM. He was the commander of the 19 hijackers, but violation of this law of war does not transfer up the chain of command (if it did, then George Washington was a criminal because of Nathan Hale who committed the same offense).

    You can make an argument against KSM himself, based on his presence out of uniform throughout the period in Pakistan, a country that was either an ally or neutral through the priod. However, to prosecute him on this ground we would have to proxy for a legal privilege that belongs to Pakistan.

    Civilian judges have been remarkably dense about the application of military law in their rulings on Padilla and the other detainees. However, KSM will be tried by a Military Tribunal and his defense would quickly dispose of claims based on hand waving and misquoting. If the government really intends to make this argument, it needs to take the question seriously.

  7. I was, in truth, going to compose a serious response after reading Mr. Bellinger’s article and the above responses, but I was unavoidably sidetracked by part of Mr. Quayle’s comment:

    Alas, the analytic power of the Cold War is blunted by the fact that it was neither a war against the cold

    You must have been terribly disappointed to discover the War on Poverty did not actually involve assaulting the homeless.

  8. One of the interesting footnotes on the civil/criminal line in the Statement of Interest in the Dichter case is footnote 20 which states as follows:

    “20 Even more worrisome, foreign criminal courts might look to U.S. civil immunity rules in an effort to justify assertions of jurisdiction over U.S. officials.”

    This footnote suggests a clear concern about criminal liability abroad for U.S. officials. The lack of immunitry rules in this arena in US law appears to be a purposive choice to leave this space open for an assertion of a sovereign immunity defense by U.S. officials being tried abroad on criminal grounds. Very interesting.



  9. I agree with the argument that in the US, this area of law would benefit greatly from further clarification by statute or what have you. Preferably this clarification would originate from Congress–but part of the problem, as I see it, is that it’s hard to imagine that the executive branch won’t continue to provide signing statements indicating how they may or may not implement law as written. Furthermore, if treaties are the domain of the executive, then that suggests that clarification must originate in the White House–but I see little chance of that happening. I am not sure what the resolution to this lack of clarity could be, short of litigation and a Supreme Court decision. It is incredibly frustrating that this is where things seem to stand.

    Peter Quayle asks whether “military force and the laws of war are ‘appropriate and legally permissible’ in ‘certain cases'” and I would agree that they are–and that it’s probably the executive which makes those decisions. But this doesn’t always mean that the executive is right, which is something the other branches of our government must always keep in mind. I’m also skeptical that military force always activates the laws of war, but I admit that smarter brains than mine will have to answer that question.

    I also must agree that it is a strange thing if we are at war with al Qaeda, but if none of the enemy belligerents qualify as prisoners of war. How can you be at war with an empty set? It seems to me that the motivation to withold POW status from non-military combatants is due to the fact that they are not really joined to the military which is waging the war. But if there is no military that is actually waging the war…then what exactly was it that inflicted an act of war upon us? One would assume that al Qaeda doesn’t refer to some nebulous idea–and ideas don’t commit acts of war at all–but an actual organization of human persons. But if none of those persons constitute a legal army, then, again, what is it that we are at war with?

    This is why I think the extent of military (and hence presidential) authority over the conduct of captures and interrogations and so forth, past, present, and future, is so important. *Are* we in fact still at war with al Qaeda? Perhaps we were, in some important sense or other. Perhaps war with al Qaeda can be considered independently from war with the Taliban. I don’t dispute this, and I don’t disagree that they still constitute a serious threat to us, and I don’t argue that we’re not entitled to the use of military force in combating their threat. The simple use of military force, however, does not always constitute war. From what I can gather, many if not most of the prisoners whose status might be determined by these debates were imprisoned as a result of actions taken in 2001, so this particular nuance might be relatively toothless, but I think it’s worth questioning whether we’re still at war with al Qaeda or not (as opposed to simply being in conflict with them, sometimes militarily).

    I’m sorry to harp on what might seem like an unrelated issue, but the question of the president’s authority over these matters seems to be a central issue. Our operations in Afghanistan, I might argue, no longer constitute waged war, strictly speaking. Yes, again, it is “war” in the sense of firing bullets and dying, but is it war constitutionally or legally? (Taking the two as equivalent for the purposes of this discussion.) We are partners in a peacekeeping force. Afghanistan is, at best I think I would argue, a police action. The fact that it is NATO operating in Afghanistan does not prove that it is war–it is simply a consequence of the actual war that was waged by NATO member armies in 2001. Attacks upon us are not attacks upon our nation–they are attacks upon the ISAF, which is no longer, legally speaking, the NATO force convened to support the attack on one of its member nations (as it was originally). It is now the NATO force authorized by the UN to assist the security affairs of the Afghanistan government. In other words, it is a police action force, not an army waging war (In fact, for this reason I would also take issue with the claim that we were at war with al Qaeda in 2002.) Again, it could be said to be “waging war” in the loose sense, in the sense of firing bullets and dying. But the legal sense, obviously, makes a big difference. (As for Iraq, technically we are there only as allies of the Iraqi government, so it is unclear whether al Qaeda attacks on US forces there–assuming they are happening–are a part of some larger “war” with al Qaeda).

    Agreed, al Qaeda still seems responsible for other attacks around the globe, as Mr. Bellinger states. But technically speaking that doesn’t constitute continued war against the US, either. Again, I’m under no illusions about the threat that al Qaeda poses. I’m just concerned about the possible consequences of claiming that we continue to be in a legal state of war with al Qaeda. Would this war truly only end with the explicit capitulation of al Qaeda? Is such a thing even possible? This is what worries me. When does the war with al Qaeda legally end?

  10. I also must agree that it is a strange thing if we are at war with al Qaeda, but if none of the enemy belligerents qualify as prisoners of war. How can you be at war with an empty set?

    This is a strange objection based on a basic miscomprehension of what your government claims. No one claimed that you were at war with an empty set. What is claimed is that you may be at war with _unlawful combatants_ who as a result of their status are not accorded POW protections. In other words, the set of unlawful combatants is NOT an empty set.

    The least we owe Mr Bellinger is not to radically and simplistically misconstrue his position. Thank you.

  11. I am by no means trying to misconstrue Mr. Bellinger’s position–and if I have, I sincerely apologize. I am certain that he is taking a good-faith stand on a highly complex issue. I am genuinely asking for help in understanding his position. Perhaps the confusion for me here centers on the particular meaning of “unlawful” being employed. Does it mean unlawful with respect to the laws of war, or does it mean unlawful with respect to the laws of a war (that is, do the laws of war only apply to specific wars)? From my perspective there is an enormous difference between the two cases, but I am happy to confess that I could be badly confused about this. If it is the former, I concede that we could be at war with an army of unlawful combatants. But if the latter…then what conflict is al Qaeda participating in unlawfully? And if the issue is more complicated than this in some way, I am more than happy to learn more about it.

  12. Please disregard my previous post; I now see what you are saying. You are correct that I was fundamentally misunderstanding the issue. I now realize that unlawful combatants are unlawful with respect to their protection under the laws of war–not with respect to their status as combatants! I also see how that is an entirely different question than Mr. Quayle’s, and I am very sorry for muddying the waters–please, mea culpa.

  13. John Bellinger says, “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.”

    As I’ve stated before, in a comment on Deborah Pearlstein’s post, this is simply false, and it should not be allowed to go unchallenged no matter how often the administration repeats it.

    The point of an Article 5 tribunal (which is, admittedly, a quick-and-dirty tribunal, as tribunals go, traditionally composed of three military officers and often acting on or near a field of battle) is to decide whether a combatant is entitled to POW status. The point of a CSRT is to determine whether someone was a combatant, period. So a Taliban fighter can say before an Article 5 tribunal, “Yes, I fought the United States, but I did so in accordance with Article 4 of the Geneva Convention, so I should be treated as a POW.” Before a CSRT, the fighter can only argue that he did not fight at all, because the president has foreclosed the possibility of treating any Taliban fighter as a POW. As I said in my previous comment, the Feb. 2002 presidential determination that not a single member of the armed forces of a Geneva party would be treated as a POW was the first time the United States construed Geneva this way, it was contrary to the Army Field Manual interpretation of Article 5, and it contrasts sharply with U.S. treatment of Viet Cong, who we did treat as POWs. And it was done hastily and sloppily, based on a DOJ memo with which the Office of the Legal Adviser strongly disagreed, and with no apparent consideration of the policy implications. It is striking that John Bellinger has to ignore all of these problems and resort to false comparisons with the CSRTs to try to justify our failure even to seriously consider whether any individual Taliban fighters could have qualified as POWs.

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