ASIL Cables: 2012 Grotius Lecture

Our friends at ASIL Cables have posted Joanne Mariner‘s summary of the yesterday’s 2012 Grotius Lecture at the ASIL’s 106^th Annual Meeting:

Jakob Kellenberger, the President of the International Committee of the Red Cross (ICRC), kicked off ASIL’s 106th Annual Meeting with a stirring reaffirmation of the value of international law.  Delivering the Grotius Lecture on the meeting’s opening day, Kellenberger spoke of the role of international humanitarian law—the law of war—in reducing the harms caused by armed conflict. While acknowledging that international humanitarian law cannot by itself end wartime suffering, he insisted that its observance in armed conflict can go far to preserve human dignity, protect the vulnerable, and limit the horrors associated with war.

As a prelude to Kellenberger’s speech, ASIL Executive Council member William H. Taft IV awarded Kellenberger ASIL’s Honorary Member Award, an annual award given to non-U.S. citizens who have made distinguished contributions in the field of international law. Taft’s introductory remarks set the stage, perhaps inadvertently, for the most memorable and emphatically-stated passage in Kellenberger’s speech.  Having served as State Department Legal Adviser during President George W. Bush’s first term, Taft commended Kellenberger for his insistence that the Geneva Conventions be respected “in the conflict with Al Qaeda and other terrorist groups.”  (Taft himself had been on the losing end of a struggle within the administration over whether Geneva Convention protections applied to Taliban and Al Qaeda members captured in Afghanistan.)

Taft’s references to the “conflict with Al Qaeda”—a phrase he used twice—reflect the view, which the present U.S. administration shares, that the United States is engaged in an armed conflict with Al Qaeda that is not limited to the current fighting in Afghanistan. It is this posited armed conflict that the United States relies upon in justifying drone strikes in Yemen, indefinite detention at Guantanamo, and the use of military tribunals to try suspected terrorists like Khalid Sheikh Mohammed and Abd al-Rahim al-Nashiri.

Toward the mid-point of his speech, Kellenberger firmly and explicitly rejected the U.S. position. In discussing current debates over the classification of armed conflicts, he stated that the ICRC does not agree that the United States is engaged in an armed conflict with Al Qaeda and associated forces. Rather, he explained, the ICRC characterizes the situation as a “multifaceted fight against terrorism,” a fight whose methods range from financial sanctions, on one end of the spectrum, to the use of armed force, at the other. While there may be localized armed conflicts in places where military force is used, Kellenberger warned against the overly promiscuous application of international humanitarian law (IHL). He noted pointedly that IHL rules are less protective than the rules that would otherwise apply (which, I should mention as an editorial aside, is what makes reliance on the armed conflict framework so attractive). “IHL should not,” he emphasized, “be applied to situations that do not amount to armed conflict.”

An ASIL annual meeting is not the place to interrupt a speech with cheers of approval.  But here on ASIL Cables I can at least say: Bravo!

During much of his speech, Kellenberger focused on the challenges posed by non-international armed conflict, the most common form of armed conflict in the world today. He asserted that the IHL rules governing detention, in particular, were insufficiently protective in non-international armed conflicts. In the view of the ICRC, there is a need for more explicit and comprehensive rules on conditions of detention—rules aimed at guaranteeing minimum standards of food, clothing, and medical care, and reducing overcrowding, among other problems—as well as on procedural safeguards.  Most persons subject to internment in non-international armed conflict, Kellenberger pointed out, do not have access to a mechanism for challenging their detention.

Kellenberger did not use the freighted term “rendition,” but he also spoke about the transfer of detainees from one state to another, a practice he referred to as a “defining feature” of recent armed conflicts. He explained that while international law generally bars transferring a person to face abuse—the non-refoulement obligation—this prohibition is not set out explicitly in the rules for non-international armed conflict.

Another important issue that Kellenberger addressed is the need to set up mechanisms to enforce IHL. He acknowledged the development over the past two decades of mechanisms relating to individual criminal responsibility for IHL violations, particularly the creation of the International Criminal Court (ICC), but urged the establishment of some system of preventive monitoring. The ICC, he pointed out, only operates after the fact, and its judgments may be handed down many years after violations take place. He suggested that additional mechanisms are needed, perhaps including an individual complaints mechanism. In 2003, he said, the ICRC launched a wide-ranging consultation process to examine these questions, an effort that he hoped would lead to the establishment of one or more new enforcement options.

Kellenberger’s speech explored some of the most serious challenges that the law now confronts, but it was, in the end, optimistic. He was not only confident that aspects of international humanitarian law could be expanded to better address present-day problems, he even seemed hopeful that the necessary revisions would be made. It was a good note on which to begin ASIL’s annual international law-athon.

A gallery of photos from the lecture can be found here.