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Response – The Fight against Terrorism and the Rules of International Law – Comment on Papers and Speeches of John B. Bellinger, Chief Legal Advisor to the United States State Department

Published online by Cambridge University Press:  06 March 2019

Silja N. U. Vöneky

Extract

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In the last year John B. Bellinger, III, Chief Legal Adviser to the United States Department of State, has been engaging in a dialogue with politicians and legal scholars in European countries. These speeches and public appearances, like the remarks delivered at the London School of Economics in 2006 and republished in this issue of the German Law Journal, were meant to address the misimpressions, as Mr. Bellinger sees it, that have become prevalent in Europe over the last few years with respect to the US positions on questions of the legal basis and legal limits of the “war on terror” and the treatment of detained terrorists.

Type
Developments
Information
German Law Journal , Volume 8 , Issue 7 , 01 July 2007 , pp. 747 - 759
Copyright
Copyright © 2007 by German Law Journal GbR 

References

1 See Bellinger, John B. III, Legal Adviser to the Secretary of State, Digital Video Press Conference, Mar. 13 2006, http://www. usembassy.de/germany/bellinger_dvc.html; Bellinger, Introductory Remarks, 38 George Washington International Law Review 501 (2006); see also Frankfurter Allgemeine Zeitung (FAZ), Oct. 14, 2006, at p. 35; FAZ, Oct. 24, 2006, at p. 7; http://www.tagesspiegel.de/politik/archiv/13.10.2006/2832625.asp; http://www.tagesspiegel.de/meinung/archiv/08.10.2006/2816379.asp.Google Scholar

2 See generally Vöneky, Silja N. U., Die Anwendbarkeit des humanitären Völkerrechts auf terroristische Akte und ihre Bekämpfung, in Rechtsfragen der Terrorismusbekämpfung durch Streitkräfte 115-30 (Dieter Fleck ed., 2004); Vöneky, , The Fight against Terrorism and the Rules of the Law of Warfare, in Terrorism as a Challenge for National and International Law: Security versus Liberty? 925-90 (Christian Walter and Vöneky eds., 2004).Google Scholar

3 See also Vienna Convention on the Law of Treaties, arts. 31, 32 (1969).Google Scholar

4 There are two exceptions, however without practical relevance: first, consistent with Arts. 1 (2) and 96 (3) of the First Additional Protocol to the Geneva Conventions, international armed conflicts include wars of national liberation; second, non-state actors can become a party to an international armed conflict if they are recognized as belligerents by a state, if the dimension of the rebellion is of some magnitude.Google Scholar

5 See Vöneky, , The Fight against Terrorism and the Rules of the Law of Warfare, supra note 2, at 933.Google Scholar

6 But see Bellinger, , Introductory Remarks, supra note 1, at 501, 505.Google Scholar

7 Rumsfeld, Hamdan v., 126 S.Ct. 2749 (2006).Google Scholar

8 Third Geneva Convention art. 4.Google Scholar

9 Slaughter, Anne-Marie and Burke-White, William, An International Constitutional Moment, 43 Harvard International Law Journal 1 (2002).Google Scholar

10 First Additional Protocol to the Geneva Conventions art. 51(3) (1977).Google Scholar

11 The interpretation has to be coherent with the lawful aims of measures of self defence: when it is lawful to attack terrorists by military means with regard to the jus ad bellum, it would be inconsistent if those people were fully protected as civilians by the laws of war. For combatants there is a similar approach as they may not be attacked if they are “out of combat.” Cf. US Operational Law Handbook 2.12 (2002), https://www.jagcnet.army.mil/JAGCNET Internet/Homepages/AC/CLAMO-Public.nsf/bf25ab0f47ba5dd785256499006b15a4/1af4860452f962c085256a490049856f!OpenDocument (Combatants are lawful targets unless “out of combat.”).Google Scholar

12 First Additional Protocol to the Geneva Conventions art. 53(2) (1977).Google Scholar

13 Id. at art. 51(5b).Google Scholar

14 Military Commission Act of 2006 (MCA), Pub. L. No. 109, § 948a (1).Google Scholar

15 Third Geneva Convention art. 85.Google Scholar

16 Id. at art. 84(2).Google Scholar

17 Id. at art. 5(2).Google Scholar

18 The provisions which do not apply to trials by military commissions are enumerated, for instance, in MCA § 948b(d).Google Scholar

19 Hamdan, supra note 7.Google Scholar

20 Nicaragua v. U.S., I.C.J Reports 2006 p. 14 at para. 218, available at http://www.icj-cij.org/docket/files/70/6503.pdf.Google Scholar

21 This is recognized by the US State Department as well. See M. J. Matheson, former Deputy Legal Advisor, Department of State, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 American University Journal of International Law and Policy 419, 427 (1987) (“We support in particular the fundamental guarantees contained in article 75.”).Google Scholar

22 See William H. Taft, IV, former Legal Advisor, Department of State, The Law of Armed Conflict after 9/11: Some Salient Features, 28 Yale Journal of International Law 319, 322 (2003).Google Scholar

23 Army Field Manual 2-22.3, Human Intelligence Collector Operations (2006).Google Scholar

24 Id., 5-74, page 5-21.Google Scholar

25 In November 2006, Bellinger distanced himself from US Vice-President Dick Cheney's comments regarding torture and waterboarding; Bellinger refused to rule out the use of such techniques by the CIA however. See generally Interview by BBC Press Office–World Service with John B. Bellinger III (2003), available at http://www.bbc.co.uk/pressoffice/pressreleases/stories/2006/11_november/03/bellinger.shtml.Google Scholar

26 Fourth Geneva Convention, pmbl.Google Scholar

27 See International Covenant on Civil and Political Rights (ICCPR) art. 4, 999 U.N.T.S. 171 (1966); European Convention on Human Rights art. 15, 312 U.N.T.S. 221 (1950); American Convention on Human Rights art. 27.Google Scholar

28 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996 p. 66 at para. 25, available at http://www.icj-cij.org/docket/files/93/7407.pdf.Google Scholar

29 Human rights treaties state that a State Party has to ensure “to all human beings within its territory and subject to their jurisdiction the free and full exercise of those rights.” ICCPR, supra note 27, at art. 2. It seems to be a good faith interpretation of this clauses to give it a broad meaning in light of the object and purpose of the treaty: if a detainee remains wholly within the authority and control of a state, there seems to be no convincing reason why a state should not fulfil its obligations to protect the human rights of such person. This interpretation seems to be supported by the US Detainee Treatment Act 2005 which prohibits any torture of a human being if he or she is “under custody or physical control of the US government.” Detainee Treatment Act of 2005, 119 Stat. 2739.Google Scholar

30 For a different view see Bellinger, Introductory Remarks, supra note 1, at 501, 506.Google Scholar

31 See Sergeant Erik Saar and Viveca Novak, Inside the Wire (2005) for a soldier's eyewitness account of work at the detainee camp at Guantanamo Bay.Google Scholar

32 Supra note 25.Google Scholar

33 The Military Commissions Act of 2006 does not solve the problem as there is no right to speedy trial. See MCA, supra note 14, at § 948b(d). See Stewart, J. G., The Military Commissions Act's Inconsistency with the Geneva Conventions: An Overview, 5 Journal of International Criminal Justice 26 (2007) for further inconsistencies of the act with the Geneva Conventions.Google Scholar

34 Supra note 23, 5-76, page 5-21.Google Scholar

35 Five Years On, The Economist, Sep. 2, 2006, at 9.Google Scholar