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Legal Issues in the War on Terrorism – A Reply to Silja N. U. Vöneky

Published online by Cambridge University Press:  06 March 2019

John B. Bellinger III

Extract

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I wanted to begin by thanking Dr. Voneky for her thoughtful contribution to this rapidly developing area of international law. One of the purposes of the ongoing dialogue with my European counterparts on the legal framework for the use of force and detention of combatants in an armed conflict with non-state actors is to spur dialogue to arrive at a common approach on these issues. I agree with many things in Dr. Voneky's article. I am pleased that, unlike many critics of the United States, she recognizes that it is possible to use force in self defense from armed attacks not directly linked to the actions of any state, and that the law of armed conflict would govern that use of force. I also appreciate that she notes that actions against terrorist groups outside a state's country are not necessarily simply transnational police actions. I wanted to take this brief opportunity to note three areas where there may be some misunderstandings regarding the views of the United States, and then discuss my thoughts on the way forward.

Type
Developments
Information
German Law Journal , Volume 8 , Issue 9 , 01 September 2007 , pp. 871 - 878
Copyright
Copyright © 2007 by German Law Journal GbR 

References

1 This is a reply to Vöneky, Silja N. U., 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, 8 German Law Journal 747 (2007), at http://www.germanlawjournal.com/pdf/Vol08No07/PDF_Vol_08_No_07_747-760_Developments_Voeneky.pdf.Google Scholar

2 See, e.g., Bellinger, John B., III, Speech – Legal Issues in the War on Terrorism, 8 German Law Journal 735 (2007), at http://www.germanlawjournal.com/pdf/Vol08No07/PDF_Vol_08_No_07_735-746_Developments_Bellinger.pdf.Google Scholar

3 Vöneky, , supra note 1, at 749.Google Scholar

4 Id.Google Scholar

5 Id.Google Scholar

6 I would note that the article misstates Common Article 2's requirements for international armed conflict. That provision applies the bulk of the Convention's provisions to “all cases of declared war or of any other armed conflict between two or more High Contracting Parties, even if the state of war is not recognized by one of them,” as well as “all cases of partial or total occupation of the territory of a High Contracting Party.” The United States applied the Geneva Conventions to our armed conflict with and subsequent occupation of Iraq, for example.Google Scholar

7 We are aware that some states and commentators believe that the continuing fighting in Afghanistan evolved into a non-international armed conflict when the new Afghan government, led by President Karzai, was seated. We do not take this position, and ultimately, it is the responsibility of parties to the conflict to determine how it is categorized. Nevertheless, we do not believe that the categorization of the conflict as international or non-international affects our legal authority to continue to detain individuals captured in the conflict. While some groups have suggested we would need to release those individuals we detained in the international armed conflict and then detain them again as part of the non-international armed conflict, such a rule seems an unduly formalistic and impractical interpretation of IHL.Google Scholar

8 Vöneky, , supra note 1, at 753.Google Scholar

9 Geneva Convention Relative to the Treatment of Prisoners of War, art. 4, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.Google Scholar

10 Hugler, Justin, Campaign Against Terrorism: Stallholders Selling out of Afghanistan's New Must-Have Hat, The Independent-London, November 26, 2001 (stating that the Taliban wore the same basic clothes as Afghan civilians); Perlez, Jane, The Siege; Tenacious Taliban Cling to Power with Tactics, Cunning, and Help from Old Friends, N.Y. Times, October 26, 2001 (noting the Taliban's use of UN vehicles to hide from US warplanes).Google Scholar

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13 Posting of John Bellinger, III to Opinio Juris, The Meaning of Common Article III, http://www.opiniojuris.org/posts/1168814555.shtml (Jan. 16, 2007, 6:05am).Google Scholar

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17 Vöneky, , supra note 1, at 754.Google Scholar

18 See id. at 755.Google Scholar

19 Military Commissions Act of 2006, Pub. L. No. 109-366, § 2241(e)(1), 120 Stat. 2600, 2603 (2006).Google Scholar

20 Id. § 948d(c).Google Scholar

21 Id. §§ 948k, 949a(b)(1)(A), 949d(f).Google Scholar

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24 Boumediene v. Bush, 127 S.Ct. 3078 (2007) (order granting cert.).Google Scholar

25 Detainee Treatment Act § 1005(a)(1)(A).Google Scholar

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27 Military Commissions Act §§ 948k, 948r(b), 949a(b)(1)(A), 949a(b)(1)(B), 949l(c)(1).Google Scholar

28 Id. § 950g.Google Scholar

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32 Commentaries concerning the Draft Convention, 2A Final Record of the Diplomatic Conference of Geneva of 1949, at 433 (1949).Google Scholar

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34 To access reports that have come from these meetings, see http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/participation-hostilities-ihl-311205?opendocument.Google Scholar

35 United Nations International Covenant on Civil and Political Rights art. 2, Dec. 16, 1966, 999 U.N.T.S. 171.Google Scholar

36 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85.Google Scholar

37 See, e.g., United States Department of State, Second Periodic Report of the United States of America to the Committee Against Torture (May 6, 2005), available at http://www.state.gov/g/drl/rls/45738.htm.Google Scholar

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