11 Dec Bellinger at Oxford: New Rules for the GWOT?
State Department Legal Adviser (& former OJ Guest Blogger) John Bellinger gave a major speech at Oxford University yesterday, entitled “Prisoners in War: Contemporary Challenges to the Geneva Conventions.” If you care about U.S. detention policies, it’s a must-read. For starters, it serves as a great encapsulation of U.S. legal arguments in defense of past and present detention policies. Notable, for example, is Bellinger’s discussion of Hamdan and Common Article 3:
While the U.S. Supreme Court decision in Hamdan v. Rumsfeld held that the conflict with al Qaida, as one not between States, is a non-international conflict covered by Common Article 3, I think many international legal scholars would question that conclusion. Textually the provision is limited to armed conflict “not of an international character” occurring “in the territory of one of the High Contracting Parties,” suggesting the scope of the provision is limited to conflicts occurring in the territory of a single state. Indeed, other states, such as Israel, have concluded that conflicts with terrorist organizations outside the State’s borders are international armed conflicts not falling within the scope of Common Article 3. I make these points not to re-litigate the Hamdan case, or to disregard the view of many that Common Article 3 is customary international law, but rather to note that in some cases, not even Common Article 3 may apply as a treaty-law matter to conflicts with transnational terrorist groups.
I find the last line intriguing. Is this merely a now-academic point, or is Bellinger suggesting that just because Hamdan binds the Executive Branch as a matter of U.S. law doesn’t mean that it operates to answer the same question of Common Article 3’s reach as a matter of international law?
In any case, the central thrust of Bellinger’s speech is not to rehash debates about whether U.S. policies are authorized by, or in violation of, existing international humanitarian law (IHL), but to ask the more general and theoretical question of whether the existing IHL rules are “satisfactory” to the task at hand:
Rather than continue to look back, however, tonight I would like to focus more prospectively on whether international humanitarian law in general, and the Geneva Conventions in particular, provide a satisfactory set of rules for contemporary conflicts. I am not advocating that we discard existing rules, which serve a critical role in dealing with the situations for which we developed them. Nor am I straining to find gaps in the existing legal framework in order to place detained persons in a legal black hole. The gaps are real, and recognizing this fact does not mitigate the obligation of States to comply with international law, nor does it justify placing persons beyond the protection of the law. My key point tonight is that the Geneva Conventions were designed for traditional armed conflicts between States and their uniformed military forces, and do not provide all the answers for detention of persons in conflicts between a State and a transnational terrorist group.
I’m sympathetic to that line of inquiry (indeed, I’ve made a similar argument in the context of cyberwarfare, arguing that even as IHL applies, in its current formulation it’s flawed and likely to be ineffective). With respect to terrorism, Bellinger focuses on four “problem” areas: (1) who can states detain in conflicts with global non-state actors; (2) what processes must states provide to determine who they can detain; (3) when are hostilities over in armed conflicts with non-state groups; and (4) what legal obligations exist in connection with repatriating detainees at the end of such a conflict.
In looking at each of these issues from a more general perspective, Bellinger is able to paint a compelling account of the problems with translating the Geneva Conventions (not to mention Protocol II, customary international humanitarian law, and human rights law) into the context of a fight against transnational terror. Although I might not agree with each of the conclusions that Bellinger (and the United States) devise having identified such problems, I welcome the effort to find some common ground. Certainly, it’s useful to see the Legal Adviser admit the difficulty of knowing when the conflict with al-Qaeda will end and how that impacts on-going detentions, not to mention the problems with repatriating a detainee who may face serious persecution upon the return home.
In the end, Bellinger expresses the “hope that the scholarly debate in this area will move beyond assertions that all that is needed is better implementation of existing law and instead work will begin in earnest on addressing the difficult challenges” that arise where IHL does not provide any clear rules. I’m not so sure that the scholarly debate will move on as Bellinger requests, but that doesn’t mean that we shouldn’t take seriously Bellinger’s second, more forward-looking charge. Wherever we stand on how the existing law operates with respect to the problem of global terror, I think it’s well worth the effort to reexamine whether new rules wouldn’t be better tailored to the task at hand, and if so, what those rules would look like.
I beg to differ.
This to me is a followup on Bellinger’s efforts on the margins of the 30th international conference of the ICRC in Geneva a few weeks ago.
Might I take the liberty to draw your attention to the comments that I wrote on November 30, 2007 with regard to these positions at Jurist in a piece entitled “‘Clarifying’ the Geneva Conventions: A Ploy to limit U.S. Culpability” which is available at this link.
As to the quoted section, to wit
might I suggest that what we precisely have to do is look back and at the present before we change anything. Bellinger is in the State Department. As a foreign service brat who had a father who spent some 30 odd years at State I am very familiar with the “language of diplomacy” that Bellinger is using.
What he says: “I am not advocating that we discard existing rules, which serve a critical role in dealing with the situations for which we developed them.”
What he means: “I AM advocating that we discard existing rules like we discarded them to allow us to put persons beyond law.”
What he says: “Nor am I straining to find gaps in the existing legal framework in order to place detained persons in a legal black hole.”
What he means: “I am so smart that I persuaded others to find there are gaps in the existing legal framework that allowed the US to place detained persons in a legal black hole. No strain for me at all.”
What he says: “The gaps are real, and recognizing this fact does not mitigate the obligation of States to comply with international law, nor does it justify placing persons beyond the protection of the law.”
What he means: “They are real because you all acquiesced in the US assertion of these gaps rather than resisting us. And since you allow that I can make a pious statement about international law because you are permitting us to conveniently argue we are not bound and act consistent with that. We have argued and created gaps as “facts on the ground”. There are other reasons to place people beyond the protection of law and we do not need to justify this by gaps.”
These are paraphrases of what is the subtext of this kind of speech made today when the CIA and our American political class is being challenged about their complicity in torture and destruction of evidence. Bellinger was in the middle of this back in the 2002-2004 period at the White House when William Taft IV was Legal Adviser at State arguing to deaf ears a more traditional vision of the United States Geneva Convention obligations.
I would be happy to look forward after we criminally prosecute in American courts the high-level civilians and military generals who put in place and encouraged this torture. Not before.
Best,
Ben
“‘Clarifying’ the Geneva Conventions”
This is the link. I hope this time it works.
Best,
Ben
I’m not sure these are problem areas unless one wants them to be.
(1) who can states detain in conflicts with global non-state actors?
Alleged criminals and prisoners of war. Real “unlawful combatants” can be charged for murder, attempted murder, or conspiracy to murder.
(2) what processes must states provide to determine who they can detain?
Due process for alleged criminals, Common Article 3 for everyone else.
(3) when are hostilities over in armed conflicts with non-state groups?
If they are alleged criminals, the question is legally irrelevant aside from sentencing. If they are prisoners of war, this question holds no special mystery. A domestic rebellion might hold the same question.
and
(4) what legal obligations exist in connection with repatriating detainees at the end of such a conflict.
See asylum law, inter alia.
I think Ben Davis is spot on in his analysis of Bellinger’s language . If these arguments were made prior to everything that the Bush administration did, they might have some credibility.
But anyway, though I’ve expressed my agreement many times on this blog with Bellinger’s critique of the Supreme Court’s ruling in Hamdan that Common Article 3 applied as treaty law to the apparently non-international armed conflict with Al Qaeda, most international scholars, including the ICRC, hold the position that the ‘conflict with Al Qaeda’ or the Global War on Terror’ is not an armed conflict within the meaning of IHL:
Furthermore, Bellinger is greatly misleading when he states that Israel and other states treat conflicts with terrorist organizations outside their borders as international armed conflicts. No state except for the US has ever made such a claim. The Israeli government’s official position has been that the conflict in the occupied territories is an ‘armed conflict short of war’, a rather ambiguous statement if there ever was one. The Israeli Supreme Court, on the other hand, never qualified that conflict either as international or as non-international until its recent Targeted Killings judgment, when it ruled that the conflict is indeed international because it takes place within a territory under belligerent occupation. This is in itself a highly problematic position (see, e.g., Orna Ben Naftali’s comments on the judgment in 101 AJIL 459 (2007) and my article in the International Review of the Red Cross). However, this is still worlds away from the US government’s pre-Hamdan position that the global war on terror is an international armed conflict, as Bellinger must be well aware.
In other words, though no serious IHL scholar will claim that IHL is perfect system without any gaps or controversies, there is almost total disagreement between the US on the one hand, and the rest of the world on the other, that IHL or the law of armed conflict is the proper framework for dealing with global terrorism. In some cases it is, in some it isn’t.
The worst part of course is that it doesn’t matter: the Bush administration’s crimes are crimes in any case, and they have NO authority whatever to detain “enemy combatants in an armed conflict” outside Geneva and Hague.
Nor do they have any authoprity outside US law and the Constitution. I’m getting real tired of hearing lawyers treat their arguments seriously. They have claimed that the US Constituion grants the Presidnets powers equal to Charles I or Caligula, and such a claim is idiotic to whatever exetent it isn’t merely a naked fraud.
These people are criminals in exactly the same sense that the Nazis and Soviets were criminals, and their lawyers are at the very center of their crimes.
So lets better implement existing laws:
Link does not show up above. Here it is
Let’s be honest… no one else is interested in renegotiating the Geneva Conventions because of problems almost exclusively belonging to the United States.
I wonder how much of the difference between the U.S. and others, especially the EU, is a function of the training of U.S. lawyers as opposed to their European counterparts. U.S. lawyers get the textbook training in legal positivism, i.e. statutory interpretation etc., but they also get an introduction to a much larger tool kit of legal skills.
For example, U.S. lawyers are trained and comfortable in using rational choice or game theory, lawyers from EU countries don’t usually get rational choice theory training as part of their education. Hence, game theory arguments usually fall flat to a EU lawyer. In fact, I remember a young Canadian lawyer explaining to me how he thought U.S. international lawyers were obsessed with rational choice, but then went on to admit he really did not understand the concept.
So what’s the point. . . . When U.S. lawyers see a new problem (like an armed conflict with a transnational entitiy), their first instict is not necessiarly to stretch old legal structures to fit the new problem. Relying on their larger tool set of legal skills, they will propose new legal structures — i.e., they are more willing to build from the ground up. I think the EU lawyer, with the smaller tool-set, naturally falls into a pattern of taking an existing legal regime and attemping to stretch the regime as much as possible.
As more evidence, I think you see a related phenomenon in the preference for U.S. lawyers in advance cross-border transactions with novel issues. Again, it seems to be a function of the different skill set of U.S. lawyers.
Although I expect to get flamed by EU-based lawyers, this isn’t a slight as to one’s legal training. It is just a possible reason for viewing the differences with a bit more nuance. I also think if maybe other lawyers picked up a game theory or political economy book, it may help them understand the merits of the U.S.’s positions.