Bellinger at Oxford: New Rules for the GWOT?

State Department Legal Adviser (& former OJ Guest Blogger) John Bellinger gave a major speech at Oxford University yesterday, entitled “Prisoners in War: Contemporary Challenges to the Geneva Conventions.” If you care about U.S. detention policies, it’s a must-read. For starters, it serves as a great encapsulation of U.S. legal arguments in defense of past and present detention policies. Notable, for example, is Bellinger’s discussion of Hamdan and Common Article 3:

While the U.S. Supreme Court decision in Hamdan v. Rumsfeld held that the conflict with al Qaida, as one not between States, is a non-international conflict covered by Common Article 3, I think many international legal scholars would question that conclusion. Textually the provision is limited to armed conflict “not of an international character” occurring “in the territory of one of the High Contracting Parties,” suggesting the scope of the provision is limited to conflicts occurring in the territory of a single state. Indeed, other states, such as Israel, have concluded that conflicts with terrorist organizations outside the State’s borders are international armed conflicts not falling within the scope of Common Article 3. I make these points not to re-litigate the Hamdan case, or to disregard the view of many that Common Article 3 is customary international law, but rather to note that in some cases, not even Common Article 3 may apply as a treaty-law matter to conflicts with transnational terrorist groups.

I find the last line intriguing. Is this merely a now-academic point, or is Bellinger suggesting that just because Hamdan binds the Executive Branch as a matter of U.S. law doesn’t mean that it operates to answer the same question of Common Article 3’s reach as a matter of international law?

In any case, the central thrust of Bellinger’s speech is not to rehash debates about whether U.S. policies are authorized by, or in violation of, existing international humanitarian law (IHL), but to ask the more general and theoretical question of whether the existing IHL rules are “satisfactory” to the task at hand:

Rather than continue to look back, however, tonight I would like to focus more prospectively on whether international humanitarian law in general, and the Geneva Conventions in particular, provide a satisfactory set of rules for contemporary conflicts. I am not advocating that we discard existing rules, which serve a critical role in dealing with the situations for which we developed them. Nor am I straining to find gaps in the existing legal framework in order to place detained persons in a legal black hole. The gaps are real, and recognizing this fact does not mitigate the obligation of States to comply with international law, nor does it justify placing persons beyond the protection of the law. My key point tonight is that the Geneva Conventions were designed for traditional armed conflicts between States and their uniformed military forces, and do not provide all the answers for detention of persons in conflicts between a State and a transnational terrorist group.

I’m sympathetic to that line of inquiry (indeed, I’ve made a similar argument in the context of cyberwarfare, arguing that even as IHL applies, in its current formulation it’s flawed and likely to be ineffective). With respect to terrorism, Bellinger focuses on four “problem” areas: (1) who can states detain in conflicts with global non-state actors; (2) what processes must states provide to determine who they can detain; (3) when are hostilities over in armed conflicts with non-state groups; and (4) what legal obligations exist in connection with repatriating detainees at the end of such a conflict.

In looking at each of these issues from a more general perspective, Bellinger is able to paint a compelling account of the problems with translating the Geneva Conventions (not to mention Protocol II, customary international humanitarian law, and human rights law) into the context of a fight against transnational terror. Although I might not agree with each of the conclusions that Bellinger (and the United States) devise having identified such problems, I welcome the effort to find some common ground. Certainly, it’s useful to see the Legal Adviser admit the difficulty of knowing when the conflict with al-Qaeda will end and how that impacts on-going detentions, not to mention the problems with repatriating a detainee who may face serious persecution upon the return home.

In the end, Bellinger expresses the “hope that the scholarly debate in this area will move beyond assertions that all that is needed is better implementation of existing law and instead work will begin in earnest on addressing the difficult challenges” that arise where IHL does not provide any clear rules. I’m not so sure that the scholarly debate will move on as Bellinger requests, but that doesn’t mean that we shouldn’t take seriously Bellinger’s second, more forward-looking charge. Wherever we stand on how the existing law operates with respect to the problem of global terror, I think it’s well worth the effort to reexamine whether new rules wouldn’t be better tailored to the task at hand, and if so, what those rules would look like.