The President and the Interpretation of International Law– A Reply to Ku

by David Golove

[Opinio Juris welcomes Professor David Golove of New York University School of Law as a guest respondent. Professor Golove's teaching and scholarship is focused on the foreign relations law of the United States and on constituional law.]

In his recent post, Julian asks whether the President has domestic constitutional authority to adopt a “new” interpretation of the laws of war. Even if Congress and the Judiciary have some countervailing authority in this respect, Julian suggests that the President should, at least, get a first crack at offering his own approach.

Of course, it couldn’t be more obvious that the President does have a first crack, at least as a practical matter, though he may be and indeed has been overruled by both Congress and the Judiciary from time to time (frequently in recent years). The President’s duty faithfully to execute the laws presumably gives him substantial authority, at least in the first instance, to adopt new good faith interpretations of customary international law. As Commander-in-Chief, he interprets the laws of war and makes those interpretations binding on U.S. military personnel by, inter alia, issuing military manuals. I can’t imagine why Julian thinks that this question is up for grabs.

Probably, though, Julian is contemplating a case where the President is actually violating the existing laws of war, offering not a good faith “interpretation” but a new (and presumably, from the President’s perspective, preferable) rule altogether. So, the real question is whether the President has domestic constitutional authority to violate existing customary international law. But Julian is actually not putting the question quite so broadly. Rather, he asks more narrowly whether the President can violate the laws of war in an effort to change the content of the law, which, of course, is an accepted method for changing customary international law. It seems that Julian thinks that the President should have this power. Julian may also believe that the judiciary ought to be bound by the President’s legislative choices and even, perhaps, that Congress ought to be as well (since the laws of war govern “the conduct of campaigns” in John Yoo’s expansive sense).

Of course, as anyone who has looked at the 18th and 19th century history on this point will easily recognize, Julian is wise to avoid making the broader claim that the President has constitutional authority simply to violate customary international law for any reason at all. That view would be radically out of step with original understandings and with constitutional developments over most of U.S. history. For those who think original understandings and/or historical practice are to be given great weight, this stubborn fact seems to present a large obstacle to embracing such a view.

Julian’s narrower claim, however, is more complicated. As an initial matter, it is worth noting that in recent years the President has not generally acted in a way designed to change “customary international law.” The process of customary international law formation, at a minimum, requires some degree of transparency and public justification. The Bush Administration has often preferred to act on the basis of secret legal memoranda and to offer persistent denials and obfuscation about the conduct in which it is engaging and which, if we take Julian seriously, the President is seeking to legitimize from a legal point of view. If the Administration is unwilling to acknowledge its behavior and justify its actions publicly and forthrightly, then the President is not genuinely seeking to change the law. He is just flouting it.

But returning to Julian’s main claim, it would seem that the most plausible basis for his view which he doesn’t really seek to justify only to suggest builds from the substantial role that the President actually and inevitably plays in the development of customary international law principles. If the President may play such a role when existing law is uncertain or legitimately contested, why shouldn’t he have authority simply to violate the laws of war altogether, at least if he is seeking to establish a new rule in its place?

The reason, I believe, is that this argument, instead of seeking to make a virtue out of a vice, seeks to make a bigger vice out of a smaller one. One of the most problematic aspects of the international legal system is the “democracy deficit” it creates by enhancing the law-making role played by executive officers. This feature of international relations is at the core of many critiques of international law, used as a ground for opposing, for example, expansive conceptions of the treaty power and the permissibility of international delegations. Although the problem is indeed pervasive, it is also, I believe, to a some extent inevitable. That is hardly a reason, however, to push executive power to its logical limit. Rather, doing the opposite makes far more sense. We ought to try to find ways to limit the damage to democratic values that this anomaly produces. Placing the power to violate the law in order to change it in the hands of the executive will further reduce transparency, democratic deliberation, and accountability on issues of great public importance. If the President believes that we need a new paradigm for the laws of war suited to the circumstances of international terrorism, he can bring forward a proposal to Congress, which in turn will deliberate upon it against the backdrop of a wider public debate. Why isn’t that a superior approach from a democratic point of view? Indeed, from every point of view?

Counterterrorism Going Forward

by Kenneth Anderson

My thanks to Opinio Juris for organizing this remarkable discussion, and to John and all the guest respondents and those commenting for taking part. Opinio Juris is one of the most refreshing blogs around because its bloggers have a wide range of political views, eclectic interests, and strongly held opinion – and yet its discussions are always unfailingly polite, friendly, while still erudite and scholarly. It’s always a pleasure to read. So thank you for the opportunity to be a guest here and thanks to John for being willing to address a global public in this very public way.

In this short post I want to go beyond the discussion that John has put on the table regarding the characterization of actors under the law of war in counterterrorism. I want to think in a very forward looking way about US counterterrorism policy – conceptually more than legally, and looking forward to what counterterrorism policy should be rather than looking back to justify past or ongoing practices. Clearly, for anyone who knows my writings, I tend to John’s views on many of the laws of war issues. I want to set all that aside, however, and for a moment think looking forward.

Viewed as a strategic question, counterterrorism conducted against transnational terrorist networks with transcendental religious motivations, on the one hand, but the tools and technology of globalization, has something like the following list of strategic tools:

Tools of law enforcement. These include traditional domestic law enforcement, seeking to trace the threads of terrorist cells and plots, and ordinary prosecution, trial, conviction processes in US courts. In addition, it includes cooperation with non-US police agencies – the ‘global government networks’ of police agencies. The problems with this approach include that it is post-hoc and reactive, rather than forward-looking and anticipatory; Judge Posner details the many problems in his recent books on domestic counterterrorism; in any case, it was the failed strategy up to 9-11.

Tools of war and armed conflict. By war and armed conflict, I mean the full weight of military forces against some target. Sometimes those targets will be actual terrorists – in Afghanistan, for example – and the military will be engaged in war with the terrorists. But mostly “real” war will be directed against states, at least in the first place – because that is what our military assets are largely about. The aftermath of a war directly against a state, as in Iraq, may produce a situation in which the military is fighting against insurgencies and militias, etc., including foreign jihadist fighters – and over time it might develop tools both tactical and technological for dealing with such fighting. But most of the time it seems doubtful that it will be fighting transnational terrorist groups as such. The military will mostly be about going after states (and whatever fighting with nonstate actors after the regimes falls) – either states (including failed states) that serve as safe haven for transnational terrorists or else states that threaten to supply catastrophic WMD to terrorists. The range of situations calling for ordinary war going forward, at least about transnational terrorism, is pretty limited at this point.

Tools of counterterrorism that are neither war nor law enforcement. I don’t have a good name for this category, but it seems to me that much, if not most of the action, against transnational terrorists will fall into a category that is neither of the above. It ranges from intelligence gathering activities to uses of force premised on that intelligence – uses of force that might still fall short, however, of the legal definition of armed conflict. It differs from law enforcement in that its intent is not post-hoc reaction but anticipatory and preventive. It differs from war in that although some of the actors might be military and parts of it blur with war, uses of force would tend to be more limited and not rise to the legal definition of armed conflict. Some of the activities would include surveillance and other forms of intelligence gathering, cooperation and coordinated action with non-US intelligence agencies, detention of terrorist suspects, interrogation of suspects, monitoring and action against terrorist financing networks, targeted abduction, targeted assassination, destruction of terrorist bases, equipment, and material infrastructure. This is a highly heterogeneous list.

The term ‘global war on terrorism’ describes, for the United States, both a strategic and legal position with respect to al-Qaeda as a transnational terrorist network. The United States is not at war with terrorist groups everywhere in the world, not even with all the transnational terrorist groups, but instead with al-Qaeda. Of course, al-Qaeda itself is a network, so the definition of the enemy in the global war on terror is itself porous – groups that share its aims but not its command, etc. Lots of people will have lots of views on the strategic utility of war as a prism through which to see the global struggle, but in my view is that it is very powerful and is the proper starting place. It is not the only lens through which to understand how to formulate a counterterrorism strategy, but it has the virtue, to start, of understanding things as our enemies do – as war, and as directed against us. It is no less useful as a strategic concept than conceptualizing the Cold War as a war in an important, although not exclusive, strategic sense. One may opt for some mix of offensive or defensive strategies, but the analytic power of seeing it as war in the first place seems to me plain, although I recognize that others will disagree.

Seeing the strategic struggle as war, however, does not necessarily correspond to the legal definition of war and the invocation of the law of war. The Cold War was understood as war in many strategic and analytic senses – as a matter of law, however, the entire Cold War and all its many encounters, across law enforcement, intelligence, covert action, and so on, was not considered a single gigantic, global, decades long war in the formal legal sense. The Cold War as such was not a war in the sense of the laws of war, even though there moments and places in which particular situations rose to that level – Vietnam, etc. The times and places in which the law of war formally applied were limited to situations that met the legal definition of armed conflict – and encounters between spies, intelligence gathering, even assassinations and activities by the KGB and CIA did not meet those standards.

The same is true of the global war on terror. It is a mistake, in my view, to go forward with a conception of the global war on terror in which our strategic vision of war forces us to the conclusion that the whole global war on terror is in fact war as a matter of law. The legal definition of armed conflict is narrower than the strategic application of the concept of war, and we should accept that. In that case, there are two US wars ongoing today (leaving aside what has and might happen in Somalia) – Afghanistan and Iraq. Those are the two places to which the formal law of war should be applicable. If that is the case, and if it further the case that the US intends to pursue al-Qaeda with the full range of tools described above, the question becomes, what bodies of law regulate those activities? In the case of regular law enforcement, the answer is plain and well worked out. In the case of war – ordinary war, not applying it to global counterterrorism, but the situation on the ground in the two armed conflicts, Afghanistan and Iraq, the rules of war are mostly worked out. There are questions of categorization, yes, under Geneva 3 and 4 – and it is also true that numbers of the Guantanamo detainees were picked up in Afghanistan fighting in what counts indisputably as a genuine armed conflict in which fighting is active and ongoing. The US has no obligation to release those detainees to rejoin the fight – on the most traditional definition of when a war is a legal war and when it ends – and leaving aside any existential questions about when the war on terror ends. But if the “war” is considered in the usual definition, then the rules are fairly well worked out.

The same cannot be said of the third set of tools – the heterogeneous tools of intelligence gathering and uses of force acting on that intelligence that fall short of the legal definition of war. There is some US domestic law, in national security law, much of it dating back to the Cold War – and some of it badly outdated, premised on the superpower struggle, a bipolar world, not very applicable to the new circumstances. But there are enormous and unacceptable gaps in the law in most of those areas – gaps in the law and gaps in oversight. Since much of counterterrorism seems likely to take place within those areas, those gaps and legal lacunae within US law seem to me a very bad idea. In part these gaps are a bad idea because the substantive matters – interrogation, assassination, surveillance, etc. – raise basic questions of values – it is not simply a technocratic, means-end calculation, but tradeoffs of fundamental moral goods, and the support of the American people, and sense that the decisions reflect the basic legislative process seems to me essential – just as it was in the Cold War – for sustaining the will for a long struggle.

Of course, one can simply say that much of this falls within the prerogatives of the president. In part that is probably true. That still does not seem to me the basis for a long term policy and, in any case, the Bush administration’s intractability on the issue of executive power seems to me ill-suited for a struggle which it has itself characterized as a long struggle, one that will go on over many years, over multiple presidential administrations. In the case of a long struggle that involves fundamental questions of the balance of security and liberties, of fundamental values of the American people, over a long period and not simply a short term emergency, then these questions have to be taken up by the Congress as well as the president. Hamdan said as much – parts of Hamdan seem to suggest that the Court is checking the president because Congress seems unwilling to do so, and it invites Congress to get back in the game. I think it should (and I do not say this simply as a Democrat, because I’m not one, and I fundamentally support the Bush administration’s on-offense approach) because, in a democracy, questions of such long term import finally have to be addressed by the legislature.

In any case, if the Bush administration cares about having an impact on long term counterterrorism policy – if it cares, which seemingly it often does not, more about the substance of counterterrorism policy than a knee-jerk insistence on executive power – it should recall that what lives by executive discretion also dies by executive discretion. Policies in which this administration believes fervently but which it has failed to get enacted through legislation looking to the long view, and relying instead on presidential discretion, may disappear in a flash in a new administration.

In any case, this seems to be the direction of US law and policy in any case. The Military Commissions Act is not fundamentally premised on the law of war – it is fundamentally premised on definitions of crimes and actors taken from anti-terrorism domestic laws. Material support, conspiracy – the concepts of liability in the MCA are not drawn from the laws of war, but are the beginnings of an attempt to define this third area. It does not make sense to try and shoehorn counterterrorism in this third category into either of the two existing categories – law enforcement or law of war – the attempt will not give us an adequate regulation of this third category and risks badly warping the legal terms of those two. There is also an important question, which Anthony Dworkin raises, about the interaction of US domestic law with international human rights law; I will leave that aside here given the length of this post. But I do think counterterrorism regulation should be taken up by Congress in a comprehensive way, and I think that the administration should recognize that its best chance for impacting the long term struggle against terrorism is by working to secure long term institutions that embrace, so far as possible, its strategic vision – but then, I’m an academic and can dream on. Plainly executive discretion is not – is no longer – enough.

Judicial Review and the War on Terror

by David Sloss

[Opinio Juris welcomes Professor David Sloss as a guest respondent. Professor Sloss is an expert on foreign relations law (among other areas) and he teaches at Saint Louis University School of Law. His recent articles can be found here.]

I want to thank John Bellinger for his recent posts on this blog. He has presented a very thoughtful and articulate legal defense of the government’s policies in the war on terror. Much of his legal analysis is persuasive. Even so, I am not wholly convinced. Rather than focusing on the details of particular legal arguments, though, I’d like to approach these issues from a slightly different perspective.

One reason for skepticism about some of the government’s legal claims is that the government has consistently attempted to insulate its legal arguments from judicial review. Numerous petitioners have brought a variety of claims in U.S. courts, challenging various aspects of the government’s policies on the grounds that those policies are inconsistent with U.S. obligations under international law. The government has consistently tried to prevent the courts from adjudicating the merits of these claims, both by introducing legislation to limit the jurisdiction of federal courts (the Detainee Treatment Act and the Military Commission Act) and by raising various jurisdictional and procedural objections in concrete cases. If the government really believes in the merits of its own legal positions, why is it afraid to subject its policies to legal scrutiny in a judicial forum? Indeed, if the government wants to persuade the rest of the world that the United States is genuinely committed to complying with its international legal obligations, it should welcome the opportunity to submit its policies to judicial scrutiny.

No doubt, some readers will object that it is unrealistic to expect the government willingly to subject its policies to judicial scrutiny. In fact, though, historical materials demonstrate that there was a time when the U.S. government invited judicial scrutiny of its wartime foreign policies. In the period between 1793 and 1796, France was at war with England, Spain and other European powers. The United States adopted a declared policy of neutrality. But the United States had previously entered into treaties with France that obligated the U.S. to adopt a pro-French tilt in certain respects. During this period, numerous private claimants filed claims in U.S. courts that presented tensions between the United States’ treaty commitments to France and its legal obligations as a neutral state. The claims generally centered around the activities of French privateers who had captured British and Spanish merchant ships. In the typical case, a British or Spanish ship owner (or a consular official representing the owner’s interests) would file suit against a French privateer, seeking restitution of a captured vessel, and alleging that the privateer had infringed U.S. neutrality. In response, the French privateer would invoke the 1778 treaty between the U.S. and France as a defense.

These cases from the 1790s are similar to modern war on terror cases in one key respect – in both sets of cases, questions of private rights are intimately bound up with questions of international law and U.S. foreign policy. In the 1790s, the British and French Ambassadors filed repeated diplomatic protests with the Secretary of State related to these cases. The French complained that the U.S. was not honoring its treaty commitments. The British complained that U.S. actions contravened its declared neutrality policy and its obligations as a neutral state. Surprisingly, the executive branch responded to these diplomatic protests by telling the French and British ambassadors that these were judicial questions to be resolved by litigation in U.S. federal courts. In effect, the executive branch willingly delegated to the judicial branch the responsibility for balancing the competing demands of U.S. treaty commitments to France and U.S. neutrality policy.

It is not entirely clear why the executive branch referred foreign ambassadors to U.S. courts, but let me suggest the following explanation. I believe that the Washington Administration wanted to persuade other countries that the United States took its international legal obligations seriously. Administration officials recognized that if the executive branch tried to resolve the disputes between French privateers and British ship owners — which is basically what the French and British Ambassadors asked the government to do — the British would protest if we ruled in favor of the French, and the French would protest if we ruled in favor of the British. By referring both sides to the courts, the executive could plausibly claim that it was simply trying to ensure that the relevant law would be applied in an evenhanded manner by a neutral adjudicator. This approach was quite successful: the Washington Administration was able to persuade both sides in a heated war that the United States was committed to complying with its international legal obligations.

Obviously, the current situation differs in significant respects from the problems confronted by the Washington Administration. Even so, there is an important lesson to be learned here. If the government wants to persuade the rest of the world that the United States is committed to complying with its international legal obligations, it can promote that objective by inviting judicial scrutiny of U.S. policies in the war on terror – at least in cases where those policies are intimately bound up with issues of private rights and international law. In contrast, continued resistance to judicial oversight reinforces the suspicion that the government is not persuaded by its own legal arguments.

Immunities and the Development of International Law

by Eric Posner

John Bellinger’s latest post raises two interesting questions, the first about the function of immunities and the other about the role of the executive branch (specifically, the State Department) in litigation against foreign interests.

The immunities rules straightforwardly recognize that what we traditionally regard as core features of judicial competence do not extend, at least not fully, to foreigners. We don’t usually want American courts adjudicating disputes between Chinese citizens and the Chinese government, or between American citizens and the Chinese government, even when it is clear that the Chinese government has injured the citizen in question, in a manner that violates American law or international law. There are, of course, exceptions, but the immunity rules remain generous.

Well, why, anyway? The answer is usually put in terms of fear of offending foreign sovereigns, but governments offend foreign governments all the time, and a general concern about offending foreign sovereigns is too broad to explain why there are exceptions to the immunities rules. Another standard answer is that courts should avoid becoming “entangled” in foreign relations, but again courts become entangled in foreign relations, at least potentially, whenever a foreign citizen is involved in litigation, in whatever capacity, and no one thinks that courts should refrain from taking jurisdiction in all cases that involve foreigners, or that could touch on foreign interests—indeed, courts have an obligation to take jurisdiction when foreigners are plaintiffs and they have a valid claim under American law.

The answer, as it so often does in international law, lies in the notion of reciprocity. The United States sees advantages in subjecting foreign governments (officials, instrumentalities, etc.) to American law and American judicial process in many situations, but also prefers that the American government (officials, instrumentalities, etc.) be immune from foreign law and foreign judicial process in many situations. The trick has been to determine areas of overlapping interest, where reciprocal acquiescence in foreign judicial process is in the joint interest of the states in question. Commercial activity turns out to be an obvious such area: commercial norms (these days) are relatively uniform, and foreign corporations would have trouble entering contracts if they were not subject to local judicial process. But in all the areas where governments disagree as a matter of policy, the infliction of judicial process on a foreign leader because he violates domestic norms embodied in domestic law, is conceptually no different from applying economic sanctions, diplomatic pressure, and so forth, against states whose behavior we do not like—subtle and difficult tasks for which the courts, applying general domestic law, are unsuited.

An implication of this is that, to the extent that domestic litigation implicates foreign interests, courts should be highly sensitive to the expressed views of the executive branch, which can take account of—as John notes—the risk to American interests if the foreign state retaliates either in kind, by subjecting Americans to judicial process who would formerly have been immune, or along some other dimension of international cooperation. This is true, regardless of whether the FSIA or some other immunity rule applies, and even regardless of whether there is a foreign defendant. It needs to be acknowledged that this weakens the rule of law. If the executive branch has a large role in litigation that affects foreign interests, outcomes will reflect policy and political considerations to a greater extent then if it does not. But this is the price one needs to pay in order to conduct foreign relations in a sensible manner. Courts have no ability to evaluate whether taking jurisdiction over a foreign sovereign or foreign official in a given case is likely to make Americans more or less vulnerable abroad.

I should note parenthetically that the ways in which the U.S. government and foreign governments, over the years, have intervened in order to control the way that courts take jurisdiction when foreign interests are involved is a clear example of how executive action contributes to the development of international law. So I think Julian Ku’s earlier post is right on the mark. This is, of course, not to deny that if foreign states reject the U.S. executive branch’s assertions (always advanced as “interpretations”) about the proper rules governing immunities, those assertions will not in the end affect international law. This process is no less important when treaties are involved, and so the interesting question is whether over the next years—as China and Russia and other countries struggle with terrorism—foreign states will acquiesce in the current American interpretation of the Geneva Conventions, or reject it. The United States presumably is prepared for future cases where Americans who join al Qaida and other terrorist groups are subjected to Guantanamo Bay-like treatment by foreign states, and will presumably not object when those foreign states say that they are merely adopting the American interpretation of the laws of war. The laws of war will “develop,” as they should, so as to be more appropriate for types of threats and conditions not anticipated by earlier generations (as Ken Anderson notes), and at the hands of governments as well as courts, domestic bodies as well as international bodies.

For an academic argument that judicial deference to the executive branch in foreign relations litigation can be derived from the policies underlying Chevron (written with Cass Sunstein), see here. For a critique of this argument by Derek Jinks and Neal Katyal, see here.

Immunities

by John Bellinger

Since readers have no doubt tired of the law of war by now, I would like to change topics and address some of the immunity issues that confront L on a regular basis. Most of you are familiar with the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1330, 1602 et seq., which codified the restrictive theory of the immunity of states and established procedures for bringing suits and enforcing judgments against foreign states (including their political subdivisions and agencies and instrumentalities). A principal purpose of the FSIA was to provide courts with the tools to determine when immunity would apply in suits against foreign states, obviating the need for the Executive Branch to file suggestions of immunity on behalf of foreign states. But L, in conjunction with the Department of Justice, continues to play an important role in providing guidance to our courts on the various immunity issues they confront.

The immunity of foreign government officials is one example. The FSIA does not by its express terms address the immunity of such officials. Several Executive Branch officials who worked on the formulation of the FSIA wrote that it did not deal with such officials when they published a review of pre-FSIA sovereign immunity decisions in the Department of State’s 1977 Digest of international practice. And, the House Report on the FSIA stated that it would have no effect on diplomatic or consular immunity. Nevertheless, in Chuidian v. Philippine National Bank, 912 F.2d 1095 (1990), the Ninth Circuit concluded that the FSIA should apply to foreign government officials as “agencies,” so as to prevent an “end run” around state immunity. In that case, this approach produced the same result — immunity — advocated by the Executive Branch, but on a theory — applicability of the FSIA — that the Executive Branch did not advance. The point is not academic, because the FSIA treats “agencies” differently than other components of a state and would not, for example, accord immunity to officials for commercial activities undertaken while merely carrying out normal governmental functions. Since 1990, some other circuits have adopted the Chuidian reading of the FSIA, such as the D.C. Circuit in El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668 (1996) and the 6th Circuit in Keller v. Cent. Bank of Nigeria, 277 F.3d 811 (2002). Just this past November, at the request of Judge Pauley of the Southern District of New York, the Executive Branch reiterated the position it advanced in Chuidian – that the immunities of foreign government officials generally derive from federal common law as informed by international custom, rather than the FSIA, in a Statement of Interest filed in Matar v. Dichter, S.D.N.Y. 05 Civ. 10270 (WHP). This approach avoids some of the obvious problems of the Chuidian approach and is more consistent with the position taken by the United States on behalf of its own officials when they are sued abroad.

In addition, certain categories of foreign officials are accorded immunity by more specific legal regimes. Diplomatic and consular officers enjoy immunities under the Vienna Conventions on Diplomatic and on Consular Relations, respectively, bilateral treaties with certain countries, and in some instances customary international law. These sources reflect some of the oldest principles of international law, which recognize the importance of facilitating a sovereign state’s unimpeded representation within each other’s jurisdictions. The Executive Branch does not necessarily play a role in cases involving the immunities of such officers, because we expect the states or officers involved to retain private counsel for the officers’ representation. The State Department does, however, certify the status of diplomatic and consular officers and may work with the Department of Justice to file a statement of interest addressing issues in a case. For example, we have filed to address whether a particular type of action by a consular officer should be regarded as performance of a consular function falling within the scope of a consular officer’s immunity for official acts. We also, when necessary, advise arresting officers and prosecutors of the applicable criminal immunities of diplomatic and consular officers. This advisory practice significantly reduces the need for criminal immunity issues to be litigated in court.

Another basis for foreign government officials’ immunity that is independent of the FSIA is the doctrine of head-of-state immunity. When applicable, it entails full personal immunity from the jurisdiction of U.S. courts. The Executive Branch has a longstanding practice of affirmatively “suggesting” head-of-state immunity to our courts when a person who enjoys the immunity has been served with judicial process. The practice dates at least to the mid-1960s, when such suggestions were made with respect to the South Korean Foreign Minister (1963) and King Faisal of Saudi Arabia (1965). Since then, we have suggested head-of-state immunity in some thirty cases which have dealt with heads of state, heads of government, the spouse of a head of state, and foreign ministers. The doctrine of head-of-state immunity recognizes the unique role played by government leaders and the special sensitivities of exposing them to civil litigation in foreign courts, particularly while they are still in office.

Another immunity that may be accorded to foreign officials is special mission immunity, which is also grounded in customary international law and federal common law (Like most countries, the United States has not joined the Special Missions Convention.). The doctrine of special mission immunity, like diplomatic immunity, is necessary to facilitate high level contacts between governments through invitational visits. The Executive Branch has made suggestions of special mission immunity in cases such as one filed against Prince Charles in 1978 while he was here on an official visit. Kilroy v. Charles Windsor, Prince of Wales, Civ. No. C-78-291 (N.D. Ohio, 1978). This past summer, in response to a request for views by the federal district court for the D.C. Circuit, the Executive Branch submitted a suggestion of special mission immunity on behalf of a Chinese Minister of Commerce who was served while attending bilateral trade talks hosted by the United States, in Li Weixum v. Bo Xilai, D.C.C.Civ. No. 04-0649 (RJL).

Our suggestions of immunity normally respond to requests from a foreign government made after its official has been served with a complaint in a civil action. We usually ask that the request be conveyed through a diplomatic note, with all relevant information and documents, including of course the summons and complaint. If we agree that a suggestion of immunity should be filed, the Justice Department submits one to the court on behalf of the Executive Branch. These filings are typically very short because, once we have determined that an official enjoys immunity, we expect the court to defer to that decision, in accordance with well-established judicial doctrines tracing back to The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).

Our immunity practice also encompasses international organizations (IOs). Here the governing standard is usually the International Organizations Immunities Act (IOIA) rather than the FSIA. If IOs are sued in our courts we normally expect them, like foreign governments, to appear in court to assert their own immunity. The United Nations is an exception, however. Under Section 2 of the UN Convention on Privileges and Immunities, the UN has complete immunity from suit in the US, including “from every form of legal process.” Officials of IOs generally have official acts immunity, but a small number of officials of the UN and the Organization of American States have full diplomatic immunity pursuant to our headquarters agreements with them.

Finally, back to the FSIA. While it ended the Department of State’s practice of suggesting immunity on behalf of sovereign states, it by no means ended the Department’s participation in litigation against foreign states. Along with the Department of Justice, L works to ensure that the FSIA is interpreted and applied properly, bearing in mind its purpose and the reciprocity and foreign policy issues that could arise from the decisions of our courts. We do not keep track of all of the many cases in our courts that involve FSIA issues, but we participate as amicus when our views are requested by the courts and occasionally on our own initiative or in response to a request by parties to the litigation. Most recently, for example, in response to a Supreme Court request for views with respect to two petitions for certiorari (Nos. 05-85 and 05-584), the Executive Branch argued that the Court should address two 9th Circuit decisions involving whether a Canadian entity — Powerex Corporation — is an “organ” of British Columbia and, therefore, an “agency or instrumentality” of a foreign state under the FSIA.

The sovereign and official immunity rules the United States applies domestically have important implications for how the United States and its officials are treated abroad. Thus immunity outcomes in our courts are relevant not merely because of the potential immediate foreign policy consequences of U.S. exercises of jurisdiction. In cases in which immunity precludes litigation, whether in the United States against foreign states and their officials or abroad against the United States and its officials, we may also — in appropriate cases — look for other ways to help resolve the underlying dispute. In addressing immunity questions we carry out research and analysis of treaties and international practice with the goal of establishing principles that will benefit all countries. Recent developments that we have followed with particular interest have included the February 2002 decision of the International Court of Justice (ICJ) in the “Arrest Warrant” or “Yerodia” case (Democratic Republic of The Congo v. Belgium),
in which the ICJ ordered Belgium to cancel a warrant for the arrest of the DRC’s Foreign Minister after concluding that the Foreign Minister enjoyed absolute criminal immunity and inviolability under international law when abroad. Another case we have examined is the U.K. House of Lords’ decision in the civil action Jones v. Ministry of Interior (of Saudi Arabia), in which their Lordships discussed The Arrest Warrant Case at considerable length as part of a comprehensive examination of the immunity of foreign government officials generally.

As you can see, we have a robust litigation practice involving the immunities of foreign states and international organizations and their respective officials. It is a rich and intellectually rewarding area of work, and I welcome your comments on it.

Can the President Change the Laws of War?

by Julian Ku

Unprivileged Belligerents (Or Illegal Combatants)

by Kenneth Anderson

[Opinio Juris welcomes Professor Ken Anderson as a guest respondent. Professor Anderson teaches at American University's Washington College of Law. He also is a Research Fellow at the Hoover Institution at Stanford University. He regularly blogs at his Ken Anderson's Law of War blog]

I am in agreement with John’s characterization of the legal and historical-legal status of the category of unprivileged belligerency. I would add just a couple of points on that issue and then use it as a springboard to a slightly broader comment on what appears to be the evolution of the administration’s position on how legally to regard detainees taken in counterterrorism operations.

I confess that I was quite astonished the first time I heard challenges made following 9-11 to the very idea of the legal category of illegal combatant or unprivileged belligerent. It is so long grounded in the laws and customs of war that it was very puzzling to me how anyone could raise a question about the existence of the category, save as a purely strategic attack on holding detainees. As I read further into these arguments, I understood that in part this arose from journalists, lawyers unfamiliar with the law of war, and others who mistakenly believed that the law of war existed in total in the four Geneva Conventions, and perhaps Protocol I. So, for example, an editorial in the Economist a couple of years back announced breathlessly, if ill advisedly, that the terms “unprivileged belligerent” or “illegal combatant” were nowhere to be found in the four Geneva Conventions: well, neither are the term “war criminal” or “war crime,” but of course they have an ancient legal meaning.

The idea in particular that if one flunks the test of the Third Convention, one is thereby a civilian protected under the Fourth Convention makes no sense either historically or as a matter of legal incentives. One has a status if one flunks the test of legal combatancy under Geneva Three. A person who takes active or direct part in hostilities is not a civilian, the person is a combatant. Having flunked the test for legal combatancy under Geneva Three, article 4, the person remains a combatant – but an illegal one. The charge is sometimes made that if the person who flunks Geneva Three is not a civilian under Geneva Four, then that would mean that a person lacked a status altogether. On the contrary, the person who flunks Geneva Three has a very particular status – the status of unprivileged belligerent. It surprises me particularly that the argument would now be raised that illegal combatants are actually civilians under the Fourth Geneva Convention when, as I recall discussions among friends and acquaintances in the prosecutor’s office in the Yugoslavia Tribunal in the mid-90s, such an argument must surely be unavailing in the case of defendants in that tribunal because it would increase incentives to violate the laws of war.

The fundamental reason why these kinds of ungrounded legal arguments have gained much ground in the past couple of years is, however, not simply a lack of knowledge, as in the case of journalists or lawyers not expert in the laws of war. It stemmed from a wrong assertion by the administration that the Geneva Conventions did not apply to the war on terror. This was untenable from the beginning – to announce that the war on terror was a war, but then to announce that the laws of war did not apply. The administration was forced to backtrack – but by then the damage was essentially done, with the result that not just the Bush administration, but the US government, including its military lawyers and others in government, had essentially lost “ownership” of the laws of war. Given the opening of this error, it allowed a wide variety of parties to assert less legally grounded reinterpretations of the laws of war and have them be taken credibly. By the time the administration moved to admit it was wrong, momentum in declaring the meaning of the laws of war had moved outside any precinct of the US government.

Nonetheless, the basic assertion of unprivileged belligerency is correct, insofar as the situation is one of war. The question is not the category of unprivileged belligerency, but instead who is entitled to make such a legal determination and what it means. Again, much criticism has been leveled at the US government for stating that the president or secretary of defense could make such a determination. As a policy matter, I have always agreed that the proper way to resolve these status issues was in accordance with the quick, confined process that the US military had established in its 1990s regulations, calling for a three officer panel in cases of doubt – and at the time, I never had any impression that any human rights group or the ICRC had any doubts as to the validity of those regulations as meeting the obligations of Article 5 of the Third Geneva Convention – certainly those regulations went beyond what the British did in the First Gulf War in holding Article 5 hearings, and I am unaware of any criticism at the time of those hearings. I believe the administration was wrong as a matter of policy not to follow those regulations and instead proceed by designation. Nonetheless, as a strictly legal matter, a literal reading of Article 5 does not require a hearing by a tribunal in every case to determine status – but only in cases of doubt, and it does not, on a strict reading, require that the matter of doubt be determined by a tribunal, either. To say that the administration violated Article 5 as a legal matter was, and is, simply wrong as a matter of the legal text.

If one proceeds by the law of war route in dealing with Al Qaeda detainees, then one ought to proceed as follows: Detainees would be designated as illegal combatants by a hearing and detained; the terms of detention, including interrogation, would be governed by Common Article Three; trial for crimes committed as an unprivileged belligerent would be conducted under Common Article Three in accordance with the customary law minimum procedures found under Article 75 of Protocol I, which article has been acknowledged by the United States as customary law despite its non-acceptance (correct, in my view) of Protocol I – but which is far more minimal in its trial requirements than what the US has put in place in the form of military commissions.

Where things are moving under the Military Commissions Act is different, however, and that Act seems to reflect a general sense that the paradigm is not always war, either practically or legally. The MCA does not use the traditional definition of a combatant – one who takes active or direct part in hostilities – as its fundamental touchstone for liability. It is not especially focused upon combat as such. Rather, the MCA uses definitions of terrorism and terrorist often taken out of domestic anti-terror laws – in particular, concepts such as “material support” of terrorism, and related concepts that, while making much sense as a matter of domestic criminal law, are not grounded in the laws of war. They are getting at quite different forms of conduct that those of combatants, legal or illegal.

The reason for this, quite simply, is that we are collectively coming to understand that much of what we call counterterrorism is not and will not be war. The concepts of the laws of war – grounded in combatancy, legal or not – will not apply very effectively to activities which will often be about conspiracy, material support, financing, sheltering, and so on. At the same time, there is a wide recognition – I hope – that counterterrorism will be as ineffective as it was up until 9-11 if it flips back into the law enforcement-only mode of reactive, post-hoc enforcement. There will be parts of counterterrorism which will be real war, on real battlefields – but it will only sometimes be directed against terrorists as such, and more often, as real warfare, directed against states that harbor terrorists or states that threaten to supply them with weapons of mass destruction. There will also be parts of counterterrorism which will be about genuine law enforcement, Miranda warnings, charges filed, prosecutions in regular courts. But there will also be – and this is what we are struggling to figure out – a broad middle ground of counterterrorism activity which is neither law enforcement (we are not looking to arrest people, but to kill them), nor war (the use of violence does not rise to the legal definition of armed conflict). It includes our questions about surveillance, detention, abduction, targeted assassination, destruction of terrorist property, interrogation, and ultimate release, and many other things. We do not have a worked out body of law to govern this area, either domestically or internationally. This is, however, where some of the most important matters of counterterrorism policy in the future are likely to take place.

I started this post in quite a different place – the longstanding legal category of unprivileged belligerency. I have wound up calling for a new body of domestic counterterrorism law, to address the questions that are not well addressed by the law of war, because, as we are gradually recognizing, forcing the legal paradigm of the laws of war to cover situations that are often not really war does not finally work. The MCA in part begins to recognize this, but in a passive, unstated way – in its definitions of status such as material support, for example. The laws of war work pretty well when applied to actual war (leaving aside the monumental problem that John and Eric have both addressed, which is what happens when you decide that the laws of war are not really reciprocal, and only one side really has to follow them) but they do not work especially well when applied to counterterrorism that is not really war, but something else. It is a mistake to try and reshape the laws of war to fit that something else, and it would be a far better idea to establish something new.

Some Questions About Unlawful Combatants

by Michael Ramsey

[Opinio Juris welcomes Professor Michael Ramsey as a guest respondent. He is a professor of law at San Diego School of Law and an expert in foreign relations law.]

My thanks to Opinio Juris for setting up this fascinating exchange and for inviting me to participate, and to John Bellinger for taking time to provide such thoughtful posts. As somewhat of an outsider to this area (my principal field is the constitutional law of foreign affairs), I find that I have more questions than answers.

Let’s assume there is a category of people who take active part in combat but are not covered by the Third Geneva Convention (because they fail the test of its Article 4) or by Common Article 3 (because the conflict is “of an international character”). It seems fairly inescapable that there is such a category (whether or not Taliban or al-Qaeda fighters are in it). Unless they are covered by the Fourth Geneva Convention, fighters in this category aren’t protected by the text of the Geneva framework. It also seems inescapable that, prior to Geneva, the extensive protections contained in the Fourth Convention did not apply to irregular fighters (that is, those who would fail the Article 4 test). The Fourth Convention’s text seems unclear on whether it covers such persons, since it covers “civilians” (which might or might not include irregular fighters). Do commentators critical of the U.S. position contend that the Fourth Convention’s signatories in 1949 intended to extend its elaborate protections to irregular fighters, contrary to traditional practice? Is that how the Fourth Convention was interpreted immediately after it was ratified? If not, what theory of interpretation allows us to be so certain of today’s meaning? (And for that matter, even if the intent was clear in 1949, are we certain that treaties’ meanings can’t evolve to adapt to new circumstances, as is often said of the Constitution?) These aren’t meant as rhetorical questions, as I haven’t studied the history of Geneva, but I have also not seen much reliance upon it.

On the other hand, for Mr. Bellinger’s side, if the Fourth Convention does not cover persons in this category, doesn’t that create a strange asymmetry: irregular forces in a civil war have the protections of Common Article 3, but (if the U.S. position is right) irregular forces have no protection at all in an international conflict? Is there any evidence that Geneva’s signatories wanted to give more protection to irregulars in civil wars than otherwise? Is it even plausible that they could have had this intent – what could possibly motivate it? Isn’t the asymmetry better explained either by saying that the Fourth Convention applies to irregulars (which you don’t want) or that the Common Article 3 protections were already understood by Geneva’s drafters to apply in international conflicts as a matter of customary law? If the latter explanation is true, though (and I must say, off the top of my head, it seems pretty plausible), then the Taliban and al Qaeda necessarily have at least the Common Article 3 protections, whether or not that Article itself technically applies to them. And if that is right, didn’t the Supreme Court get it basically right in Hamdan, whether or not it was correct on the “not of an international character” characterization of the al Qaeda conflict? Of course, it may matter for U.S. domestic law whether the protections come from the treaty itself or from customary law, but it should not matter to the United States for international purposes. So I guess I’m puzzled as to how the U.S. can maintain that the Taliban lack the protections of the Fourth Convention without acknowledging a customary law amounting to the substance of Common Article 3 for all fighters (including al Qaeda) in international conflicts.

In sum, for both sides: isn’t it plausible that Geneva’s drafters envisioned a middle ground between your claims – all fighters would get the substance of Common Article 3 protections, in international conflicts from pre-Geneva customary law and in non-international conflicts because Common Article 3 extended it to them; and fighters who complied with the requirements of Article 4 of the Third Convention would get that Convention’s additional protections?

The Bargain Theory of War

by Eric Posner

John’s most recent post raises the question of the nature of the “bargain” theory, as he puts it, of the Geneva Conventions:

In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore the laws of war, and you cannot seek the status given to lawful combatants. POW status is perhaps best seen then as an incentive to follow the rules in armed conflict.


I like this theory, but it is worth pointing out that many people do not like it, as it is in tension with the universalistic aspirations of human rights law, and perhaps of the laws of war themselves. It is worth considering whether the bargain theory is really sustainable.

The implicit premise of the bargain theory is that belligerents (including non-state actors) on both sides of a conflict are worse off if they use the most aggressive tactics and weapons at their disposal, than if they engage in mutual restraint. Consider the tactic of dressing like civilians. A military force, especially a guerilla group, can gain much from engaging in this tactic. The soldiers, by disguising themselves as civilians, might avoid being detected until they have obtained a tactical advantage. They also might induce the other side to kill civilians, which may reduce its support among the local population. Also, of course, an impoverished guerilla group saves the costs of purchasing and maintaining uniforms. I believe that the German army, during the Battle of the Bulge, adopted this tactic in order to penetrate allied lines. But regular armies tend to prefer to wear uniforms for a variety of practical reasons, and so dressing like civilians is mainly a tactic of insurgencies and guerillas.

If soldiers on one side only can use the tactic of disguising soldiers as civilians, then that side gains a militarily advantage. So predictably soldiers on the other side would adopt this or similar tactics in return. The result is that neither side will gain an advantage, while the war will be generally more destructive, with more civilians killed as a result of the confusion about who is a combatant and who is not. The laws of war thus prohibit soldiers from disguising themselves as civilians, an effort to give both sides an incentive to choose less destructive rather than more destructive military tactics. This logic can be extended to many of the other rules in the Geneva and Hague Conventions, as well as the general principles of the laws of war.

But if this is true, it necessarily follows that when one side breaks the rules, the other side must respond in kind. In the current conflict, the United States retaliates against al Qaida, and on John’s theory, the Taliban, for their violations of the laws of war, by depriving captured combatants of POW status—which seems more reasonable and effective than responding in kind by dressing American soldiers in civilian clothes, which in any event is prohibited (as well as pointless). The lack of command structure, if that is the case, is also a key point: if there is no command structure, then American forces cannot expect the enemy to reciprocate America’s own self-restraint, as required by the laws of war. So, again, under the bargain theory, there is no reason for the U.S. to extend POW protections to enemy combatants.

The logic extends farther than the position of the American government, however. The bargain theory, as described by John, gives the victim of law-of-war violations (the United States, here) only one, rather weak tool, for retaliation—elimination of POW status, plus the right to punish war criminals if they are captured. Yet the logic of the bargain theory implies that if this tool is too weak, the United States ought to be allowed to do much more. Put differently, if al Qaida and the Taliban have violated their side of the “bargain,” why should the United States comply with its side of the bargain? Why should the United States feel bound by any of the laws of war in the conflict in Afghanistan, including common Article 3 and, for that matter, the traditional law-of-war principles of proportionality and necessity? If the United States—and other countries, too—made clear that they would retaliate against law-breaking states and non-state entities, by refusing to extend any of the protections of the Geneva Conventions to the law-breakers, wouldn’t this threat in the long run reduce, rather than increase, the costs of war, by more effectively deterring belligerents from breaking the laws of war? This is what the bargain theory implies.

Of course, the Geneva Conventions do not permit such reprisals. They give the bargain theory only limited play by restricting the ways that a belligerent can retaliate for law-breaking on the other side. History, on the other hand, shows that tit-for-tat retaliation for violations of the laws of war has been common. If the bargain theory is accepted, the Geneva Conventions are open to criticism, for excessively restricting reprisals, and the effort to interpret them aggressively as reflecting the bargain theory to a greater extent than they explicitly do, can be defended as bringing them into line with historical practice and the moral logic of the bargain theory.

This is, I think, the source of the uneasiness that many people feel about the bargain theory in general, as well as the type of argument that John has made. It also explains why so many people reject the bargain theory and argue that a belligerent must comply with certain constraints regardless of how the other side acts. This kind of thinking makes no sense from the perspective of the bargain theory because it simply gives the other side a license to do whatever it wants, so that civilians will be worse off in the long run. On the other hand, no government seems willing to explicitly endorse the bargain theory all the way down, suggesting that the bargain theory, at some level, is not politically sustainable.

The reason, then, that some advocate treating all captured belligerents as POWs, and the like, is that they implicitly reject the bargain theory and embrace instead a universalistic interpretation of the laws of war, according to which people have certain basic rights regardless of whether they take the bargain. Ironically, John does not reject this universalistic view: he simply argues that those basic rights are more limited than his critics say they are. But, if this is right, then the argument should be about the scope of the bargain theory, and the location of the floor—those rights that one cannot give up no matter how bad one’s conduct—and John cannot expect his critics to accept the bargain theory without further defense.

Consider again the quotation with which I started. The quotation above sounds reasonable (and I believe it is reasonable) but the choice made by, say, a Taliban soldier is either to obey his commander or not obey his commander, which I suspect is not a choice at all. An ordinary soldier cannot be expected to decide to purchase a uniform and wear it in defiance of the orders of his superior, and while his comrades continue to wear civilian clothes. (And what uniform would he buy, anyway?) So it is the Taliban leadership that decides whether to accept the bargain, while the low-level soldiers bear the consequences of the leadership’s choice. Such is always the case in war, but this is another reason why many readers will reject the bargain theory in the hope that, somehow, the universalistic view can be made to stick.

Unlawful Enemy Combatants

by John Bellinger

In this post I would like to take issue with the suggestion that the United States invented the concept of “unlawful enemy combatants” to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I fear that this has become conventional wisdom among critics of U.S. policy. In fact, the distinction between lawful and unlawful enemy combatants (also referred to as “unprivileged belligerents”) has deep roots in international humanitarian law, preceding even the 1949 Geneva Conventions. The Hague Regulations of 1899 and 1907 contemplated distinctions between lawful and unlawful combatants, and this distinction remains to this day. As Professor Adam Roberts told the Brookings Speakers Forum in March 2002, “There is a long record of certain people coming into the category of unlawful combatants— pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists.”

I frequently hear the question, “Why not consider all captured belligerents, lawful or unlawful, ‘prisoners of war’?” It is not immediately clear why some advocate such a move. Prisoners of war can be held until the cessation of hostilities, and, ironically, many of those advocating for POW status for Taliban and al Qaida forces object to that basic principle. Moreover, I question whether those who insist that the Taliban and al Qaida be treated as POWs have thought through the practical consequences. Do proponents of POW status for al Qaida detainees expect them to be provided with all the benefits accorded to POWs under the Third Convention, despite their failing to follow the laws and customs of war?

More critically, though, the drafters of the Third Geneva Convention were aware that they were not drafting the treaty in a way that would ensure that everyone who took up weapons on a battlefield would receive POW status. To begin with, Common Article 2 of the Conventions limits the application of the vast majority of provisions, including protections to be provided to POWs, to armed conflicts between two or more High Contracting Parties. Thus, POW status is limited to belligerents engaged in international armed conflict. The U.S. Supreme Court has decided that the U.S. conflict with al Qaida is governed by Common Article 3. Because the Court has found that the conflict with al Qaida is not one between nations, but instead a Common Article 3 conflict, al Qaida detainees are not entitled to POW protections under the Third Convention. This point has been recognized by posters earlier this week, such as Marko.

Moreover, Article 4 of the Third Convention affirms the long-standing distinction between lawful and unlawful combatants because it limits “prisoner of war” status to lawful combatants, such as members of the regular armed forces of a Party to the Convention. The underlying concept here is simple –unlawful combatants should not be provided combatant immunity during wartime, and should be held criminally accountable for their acts of war. By contrast, AU Professor Robert Goldman explains that lawful combatants have combatants’ privilege, which “immunizes members of armed forces from criminal prosecution by their captors for violent acts that do not transgress the laws of war, but might otherwise be crimes under domestic law.”

An examination of the nature of al Qaida and its members results in the conclusion that they are not entitled to POW status under Article 4. Al Qaida members are not members of the armed forces of a party to the Geneva Conventions, meaning that they are not entitled to protection under Article 4(A)(1). Al Qaida has also failed to adhere even to the most fundamental tenets of the laws of war—including the critical need to maintain distinction between civilian objects and military objectives—and have blended into the general population, deliberately choosing not to wear fixed distinctive signs or carry arms openly. Under such circumstances, the United States is correct in denying al Qaida fighters the protections owed prisoners of war.

Although most international legal scholars agree that al Qaida detainees are not entitled to POW status, I recognize there is more debate regarding the status of the Taliban detainees. The Taliban did not display the indicia of regular “armed forces of a party” for purposes of Article 4(A)(1). The armed forces of Afghanistan ceased to exist as such with the dissolution of former President Mohammad Najibullah’s armed forces in the mid-nineties, and were replaced by a patchwork of rival armies. Although the Taliban were the most powerful of these rival armies at the time of the U.S. invasion, it is does not appear that they ever rose to the level of the official armed forces of Afghanistan. Nor were they “regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power,” entitled to POW protection under Article 4(A)(3). The Taliban do not possess the attributes of regular armed forces, as they do not distinguish themselves from the general population, or conduct their operations in accordance with the laws and customs of war.

The Taliban is better conceptualized as a militia belonging to a Party to the conflict, which would be eligible for POW protection under Article 4(A)(2) if they used a command hierarchy; wore a uniform or distinctive sign; carried arms openly; and observed the laws and customs of war. The Taliban, however, fail to meet at least two of these conditions: specifically, the Taliban do not distinguish themselves from the general population, nor do they obey the laws and customs of war. Contemporary news reports from the Allied invasion of Afghanistan indicate that the Taliban dressed like civilians, and in fact used this similar dress to blend into the civilian population to evade capture. Worse still, they have targeted and continue to target civilians as such in violation of the laws of war, having adopted suicide bombing techniques similar to those used by al Qaida. These types of transgressions explain why the United States believes that Taliban detainees do not enjoy POW status under the Third Convention.

Assuming that the Taliban were the armed forces of Afghanistan, however, they still do not qualify for POW status because they fail to meet many of the fundamental criteria for POW status under the Third Convention; specifically, the Taliban lacked the command structure, distinctive uniforms, and compliance with the laws and customs of war which characterize regular military forces. Some have argued that these additional factors would not preclude POW status under Article 4(A) (1) because that provision omits the list of requirements found in Article 4(A) (2). This is a difficult question, but as Jean Pictet’s commentary on the Third Convention explains, it seems the drafters of the Convention had an expectation that the armed forces of a party would generally meet the requirements contained in Article 4(A)(2), and it’s unlikely they envisioned granting POW status to groups that openly flout these requirements.

In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore the laws of war, and you cannot seek the status given to lawful combatants. POW status is perhaps best seen then as an incentive to follow the rules in armed conflict. It also is a way to protect civilians more effectively: when combatants masquerade as civilians to mislead the enemy and avoid detection, civilian suffering increases as a tragic consequence of the failure of these combatants to adhere to the fundamental law of war principle of distinction between combatants and the civilian population.

Long before the war against al Qaida began, the United States forcefully insisted that this incentive to follow the rules remain strong by limiting these extensive treatment protections to those who generally follow the rules of warfare. President Reagan decided not to submit Additional Protocol I of the Geneva Conventions to the Senate for ratification in part because he feared that the treaty contained a disincentive to follow the laws of war by extending combatant status in certain cases to those who do not follow the rules. As former Department of State Legal Adviser Abe Sofaer explained, “Inevitably, regular forces would treat civilians more harshly and with less restraint if they believed that their opponents were free to pose as civilians while retaining their right to act as combatants and their POW status if captured.”

I believe that the bargain of the Third Convention works: follow the laws of war to gain their robust protections and privileges. Those who believe in the rules should insist that incentives to follow those rules not be weakened.

I wanted to add a final thought about the recent Israeli Supreme Court decision in Public Committee against Torture in Israel v. Israel, where it has been reported that the Court concluded there was no category of individuals labeled unlawful enemy combatants. That is not quite what the court held. Instead, the Court held that combatants not in regular armies or militias meeting the requirements of Article 4(A)(2) of the Third Convention were in fact civilians, who lost their comprehensive protections against attacks, “for such time as they take a direct part in hostilities.”

To begin with, it’s important to stress that the Israeli Court largely agreed with our views regarding treatment of terror groups like al Qaida. We agree with the Court that these types of combatants were not entitled to protection from attack regardless of their categorization, nor were they entitled to prisoner of war status if detained. The Court did conclude that Article 51(3) of Additional Protocol I was customary international law, which limited the circumstances in which a “civilian combatant” could be considered a legitimate military target. While we agree that there is a general principle of international law that civilians lose their immunity from attack when they engage in hostilities, we disagree with the contention that the provision as drafted in AP I is customary international law. In fact, the Israeli Court’s opinion appears to recognize that point inadvertently by highlighting the lack of international consensus regarding the meaning of both “for such time” and “direct part in hostilities.”

More centrally, though, most of the sources cited by the Court support our contention that “unlawful enemy combatant” is a category of combatant, distinct from civilians, recognized under international law. Kenneth Watkin, Richard Baxter, Jason Callen, Robert K. Goldman , and Michael Hoffman, all of whom the Court cites, agree that unlawful combatants exist as a legal category, although they may disagree somewhat with us and each other about who qualifies for membership in such a group, and what the legal consequences are, such as whether unlawful combatants are entitled to protection under the Fourth Convention. My point here is that even those that disagree with us as to the legal framework for detaining al Qaida and Taliban detainees should acknowledge that we are on legally firm ground in using this construct as the basis for our framework.

In closing, my sense is that the insistent opposition to our use of the term “unlawful combatant,” despite its clear lineage in international law, is motivated by a fear that acknowledging this category might place the detainees in a legal black hole. While it certainly could be the subject of a policy debate whether we should grant POW status to detainees not legally entitled to it, saying that the Taliban and al Qaida detainees are not criminals on the one hand, nor POWs or protected persons on the other does not mean they do not have significant legal protections. Following the Supreme Court’s decision in Hamdan, all detainees in the conflict against al Qaida and the Taliban must be treated in accordance with Common Article 3 of the Geneva Conventions. They are also protected by the blanket prohibitions on torture and cruel, inhuman or degrading treatment or punishment found in U.S. law. And the Department of Defense recently promulgated a new directive on detention operations and a field manual governing interrogation that provide clear direction to the U.S. Armed Forces regarding compliance with these important norms. Nevertheless, critics prefer to strain to force the detainees to fit into the more traditional legal categories of common criminals or POWs. I am more inclined to agree with the conclusions of the OSCE Rapporteur on Guantanamo, Anne-Marie Lizin, the President of the Belgian Senate, that there is “incontestably some legal haziness” regarding the legal status of individuals captured in the course of military operations against international terrorists and that further legal work needs to be done to clarify the status of these kinds of combatants.

Armed Conflict With Al Qaida: A Response

by John Bellinger

Let me first say thanks to all that have taken the time to respond to my first posting. I had originally planned to wait until Friday to provide a comprehensive response to the various issues raised, but I have been so impressed by the quality of the dialogue so far that I’ve decided to post this interim response tonight. I apologize that I can’t provide responses in real time and that I can’t respond to all of the questions, but my government responsibilities prevent me from doing that. I should also note that I have addressed many of the points in my post from this morning on Common Article 3, or will address them in my next post tomorrow on unlawful enemy combatants. I will keep my responses here to those comments most directly responding to yesterday’s entry.

I’ll begin by thanking Charles Garraway and Eric Posner for taking the time to respond in depth to my comments. With regard to Charles’ comments, I appreciate that he agrees with us that it is possible to be at war with a non-state actor, that we can hold combatants in that war until the end of the conflict, and that at the least, we can agree that the conflict in Afghanistan, in which the vast majority of our detainees were picked up, continues.

Charles does seem to suggest that criminal law should be used to prosecute al Qaida operatives found outside Afghanistan (Marko also raised a similar point). As I have noted, we have used criminal law to prosecute some al Qaida operatives found in the United States, such as Zacharias Moussaoui, but I would ask you to consider—in addition to the legal arguments underpinning wartime detention—the practical difficulties of prosecuting an al Qaida member not found in the United States. To begin with, our criminal courts simply do not have extraterritorial jurisdiction over many of these individuals or many of their activities. Some of them had never set foot in the United States or planned specific criminal acts in violation of our federal criminal statutes. One thing that all of our countries have learned since September 11th is that we are facing a different kind of terrorism than we used to face, and we have to expand the reach of our criminal laws. There has been a flurry of activity in the United States and other countries to do just that. But the current effort to expand our criminal laws cannot be made retroactive. Therefore, in many cases there would have been no legal basis to try al Qaida operatives in our courts for violations of our domestic criminal laws. Moreover, in many instances the evidence against these operatives was obtained on the battlefield, even where the detainees themselves were captured elsewhere. Our federal courts require a chain of custody to be presented for all evidence introduced at trial, and this could pose a great deal of difficulty for our forces. Ultimately, we think we are not legally obligated to try al Qaida combatants under the laws of war, but have set up military commissions to prosecute those who have committed the most serious violations of the laws of war.

Eric Posner invites me to say what is as stake in the argument about the applicability of international law to the conflict with al Qaida. Fundamentally, what is at stake is the reputation of the United States as a nation that takes international law seriously and that does not bend the law to meet our immediate needs. It is true that when novel situations present themselves, governments have some flexibility in how they adapt traditional rules to new realities. But United States cannot regard international law as something to be completely redone whenever a new challenge presents itself, and must care about the implications down the road of the positions that it decides to defend today. A reputation for consistency and reasonableness in its approach to its international obligations is valuable to the United States. Without that, other countries will be less willing to cooperate with us and live up to their own international law commitments. Even though international law constraints are sometimes limited, they are nevertheless real and substantive and we cannot maintain that we are a nation that abides by law if we say we have the choice of disregarding international law. As lawyers, we must take into account not just the texts and decisions that make up the building blocks of international law, but also the quality and integrity of the arguments we make and the analogies we draw in framing our positions on international law. It is in the broader interests of the United States not to let these arguments become merely a matter of convenience.

Turning now to some of the other posts, “Non liquet” asks how we will know when the war with al Qaida is over. This is an important question. Of course, in any war, you don’t know how long the war is going to go on. There have been wars that have gone on for five years, ten years, thirty years, one hundred years. But the fact that a particular conflict with an enemy may go on indefinitely does not mean we should simply release all members of the enemy we are holding so long as that conflict is continuing. There is a reason that under customary principles of international law, you may hold the people until the end of a conflict, and that is to keep dangerous people off the battlefield.

Nevertheless, we recognize that the conflict with al Qaida is not a traditional conflict that will end with an armistice agreement on a battleship. We could reach the point where we have so decimated al Qaida that there may be so few operatives left that we don’t think they are actually engaged in a major war with us. But as a practical matter, with respect to the people we are holding in Guantánamo, we have added an annual administrative review process to determine whether an individual detainee continues to pose a threat to the United States or its allies. In a sense, we ask if the war is over with respect to that person. Even if al Qaida continues to be fighting us, if an individual can credibly say, “I want to stop fighting, I want to just go back and join my community,” and in fact the community will credibly commit, “We will take responsibility for this person, and make sure that he doesn’t go back to fighting,” then we will release people. We have released or agreed to release, subject to their countries taking them back, more than one hundred people pursuant to that process. Thus, the ARBs balance our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary.

Marko asks how the United States interprets the Supreme Court’s decision in Hamdan. As I described in depth this morning, the Supreme Court has held that the armed conflict with al Qaida is not a conflict between states, and that the conflict is governed by Common Article 3 of the Geneva Conventions. As Marty Lederman accurately anticipated, the Administration reads the Hamdan decision to accept that the U.S. is in an armed conflict – and therefore that the laws of war are appropriate to apply – but that the armed conflict is not of an international character. If the Supreme Court had thought that we were in a state of armed conflict with al Qaida, it is hard to see how the Court could have applied the Geneva Conventions or Common Article 3 at all. Marko further suggests that if the Geneva Conventions don’t apply to an armed conflict, it cannot be considered one under international law. I agree with Marty Lederman’s on point critique of this argument.

Marko also argued that “the vast majority of legal scholars” believe that a state cannot be in an armed conflict with a non-state actor. While I recognize there is some disagreement among international lawyers on this point, there are certainly numerous lawyers and academics who believe that the better legal position is that a state of armed conflict may exist between a state and a non-state actor. As my previous entry describes, over a century of state practice supports the conclusion that a state may respond with military force in self defense to attacks by a non-state actor from outside the state’s territory, at least where the harboring state is unwilling or unable to take action to quell the attacks, and law of war treaties that govern the treatment of detainees in armed conflict, including Additional Protocol 1 of the Geneva Conventions, contemplate conflicts between state and non-state actors across national borders. I have already cited Thomas Franck’s article “Terrorism and the Right of Self-Defense, available here. I would also refer readers to Roy Schondorf’s excellent recent article analyzing the legal regime applicable to conflicts between states and non-state actors: “Extra-State Armed Conflicts: Is There A Need for A New Legal Regime?” available here.

But I take Marko’s larger point to be an expression of frustration with what he considers to be the inadequate protections provided enemy combatants by Common Article 3. But to be clear, this is a dispute on policy, not law. As I will explain in more depth tomorrow, there are good policy reasons why the United States is not treating the al Qaida detainees as POWs even though they are not legally entitled to that status. But it’s important to identify this as a policy, not legal, disagreement.

Katherine’s questions seem to go to the concern I mentioned in yesterday’s post, that to say that we are in an armed conflict with al Qaida is to give the United States a blank check to act as it pleases in combating the threat. To pick up on some of her particular points, however, one finds that in fact in war there are specific legal protections to address the concerns she raises. First, she suggests that because we are in an armed conflict the Convention Against Torture does not apply. While the law of armed conflict is the lex specialis governing the detainee operations in our conflict with al Qaida, torture is clearly and categorically prohibited under the law of armed conflict, as well as under the CAT. Obligations to prevent cruel, inhuman, or degrading treatment are similarly found in both bodies of law.

Second, she suggests that detainees in this war get inadequate review before being detained. Admittedly, identifying members of the Taliban and al Qaida is difficult, because—among other things—unlike in a traditional war, the Taliban and al Qaida do not wear uniforms and insignia. Nevertheless, our forces worked hard to detain only those individuals who were part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. To ensure that we are holding the right people, every detainee in Guantanamo has his case reviewed by a formal Combatant Status Review Tribunal, which determines whether a detainee is properly classified as an enemy combatant. The detainee has the assistance of a military officer, may present evidence, and may appeal the determination of the CSRT to our federal courts. Nearly 40 detainees have been released as a result of this process. It is simply not correct to say that detainees do not have meaningful review of their detention.

Finally, on Kashi’s comments about my discussion of the Caroline case—that case involved private persons on the American side of the US-Canadian border supporting insurrectionist efforts in Canada, then retreating back to sanctuaries on the American side of the border in upstate New York, where they were attacked by the British. The case involved two issues relevant here: first, whether acts by private actors (as opposed to acts by state militaries) could trigger a right of self-defense where the government of the host state was unable or unwilling to take action; and, second, whether the threat posed by those private actors satisfied the conditions of necessity, proportionality and immediacy so that the British action would be justified. But there was no question that the acts of private actors could trigger the right of self-defense where the host government was unable or unwilling to deal with the situation. Secretary Webster may not have accepted that the facts were right to legally justify the use of force in the Caroline case, but the British and Americans both accepted the underlying principle.

With respect to immediacy, or what is usually referred to as imminence, the longstanding US view has been that a state need not wait until it is actually attacked before using force in self-defense, and that view has been more strongly embraced than ever in recent years, including for example by the UN Secretary-General in his In Larger Freedom report in 2005. The US continues to accept the importance of the distinction between imminent and non-imminent threats, but—in the face of the threats now posed by terrorism and proliferation of weapons of mass destruction—the principles of self-defense must be understood and applied in the security environment in which the US and other states now find themselves. But it is also important to note that, insofar as the conflict with al-Qaida is concerned, imminence is not a “live” issue, as the United States has been subject to actual—as opposed to anticipated—attack.

I look forward to continuing this discussion over the rest of the week.

The State Department and the War on Terror – Another View

by Duncan Hollis