Transcript
MR. JAMES B. STEINBERG: Good morning ladies and gentlemen, and welcome to Brookings.
It's a very great honor for me to welcome Professor Adam Roberts here for a discussion today on "Counterterrorism and the Laws of War: A Critique of the U.S. Approach".
The timeliness of today's session is an issue that's been of course debated since the beginning of the war in Afghanistan, but the timeliness became very clear yesterday for those of you who read the New York Times "Week in Review" section which had a feature called "Who is a prisoner of war? You can look it up, maybe." And I think the maybe is exactly the question that we're going to be discussing today.
It is a real privilege to have Professor Roberts here who is one of the most prolific and thoughtful commentators on international law and international relations. He's a Montague Burton Professor of International Relations at Oxford where he's been since 1986. Prior to that he was at St. Anthony's College at Oxford. Prior to that at the London School of Economics. He is, as I said, a prolific writer on the issues of international relations and international law and has co-authored with some of the most distinguished thinkers in our field including Alistair Bucken [ph] and Philip Windsor, two great mentors of mine as well. I had the privilege of being in London with Adam in the mid 1980s when I was a Fellow at the International Institute for Strategic Studies.
After Professor Roberts' remarks we will have comments by Ambassador David Scheffer. Ambassador Scheffer, as many of you know, served in the Clinton Administration, most recently as Ambassador for War Crimes. When he left the Administration he joined the Institute of Peace, U.S. Institute of Peace as a Senior Fellow. And David is now in his last days at USIP and is about to become Senior Vice President for the United Nations Association of the United States, and I have happily learned that part of the time he will be in the Carnegie building next door, so we will be continuing to see a lot of David.
David, in addition to being a very knowledgeable commentator on international law and international relations is a very distinguished professor in his own right. He's recently written a special report for USIP called "Options for Prosecuting International Terrorists" which I urge you to rush out and obtain your own copies.
I don't want to spend a lot of time introducing the subject because I think it is a familiar one. The challenge of thinking about how the laws of war apply to the problem of battling terrorism is a very critical one, not only because the are a lot of legal ambiguities, but they actually play out not just in the academic debate but in the real world as we have seen in Afghanistan and in Guantanamo, and this is surely not the last time that we're going to confront these issues as we see an increasing resort to the use of force as an element of the overall strategy to deal with the problem of counterterrorism. So our discussion today is timely, and I don't want to take any more time from our distinguished speakers. So let me turn it over to Professor Roberts.
MR. ADAM ROBERTS: Ladies and gentlemen, it doesn't need me to tell you that it's been six months to the day since those awful events, and I don't intend to do any kind of general survey or accounting of the extraordinary changes since that day— a day when among other things we discovered that there were absolutely no limits which restrained what terrorists might do. I think many of us up to that point had subconsciously believed that there were certain limits, certain things that it would be dysfunctional, counterproductive, all those usual words for them to do. And clearly we were conscious, at least in that respect, in facing a new situation after that awful date.
From the very moment when that attack occurred, I wasn't in any doubt, and I just wanted to sort of lay this out from the start that there would be a military response and that a military response was justified. It was pretty evident right from the word go, to be honest, that the al Qaeda network, Osama bin Laden already having taken credit for one attack on the World Trade Center was behind this one.
I was in London when I heard the awful news and was immediately sure and gloomy that it would mean a war. I had to get back to Oxford that afternoon and the bus driver—bus drivers always have clear views on things— expressed the view that there would be a war. I think his view, like mine, was as it were accepting that this was inevitable and even necessary.
What I want to look at is a particular sub-aspect of the events that have unfolded since the 11th of September and particular grounds for concern about that sub-aspect, the sub-aspect obviously being the role of the laws of war. But this does have to be seen against a background which I think I'd better lay out because it is a background of deep suspicion between Europe and the United States greater than at any time I can recollect in my professional career and I think it's a huge cause for concern.
I could crudely summarize that suspicion by saying that in the U.S. government there's a view that Europeans are simply no longer serious about the conduct of war. They're seen as having low defense budgets, perhaps as being too legalistic, and being reluctant to face up to the fact that some crises do actually require the use of force and even engaging in controversial actions involving the use of force.
Meanwhile, on the other side of the pond, many Europeans including some governments view the United States as having adopted an unnecessarily unilateralist stance, at least on certain issues, and the Americans are seen as risking, jeopardizing, the undoubted achievements of the campaign since 11 September by threatening the use of force in circumstances where it might not be the first option or might be less appropriate than it was in Afghanistan, and in this light the Americans are also seen sometimes as being selective, almost to the point of rejectionism, in their attitude to international law and organization.
Now I don't intend to go into the rights and wrongs of these suspectives, but note one central thing about them. On both sides of the ledger issues to do with the international law feature. They're not the only issues, but they are among them and they have proved among the poisonous elements that divide our respective societies. And even in Britain some of the elements of what I described as a European suspicion of the United States play quite large.
Obviously what I presented is a caricature. Obviously within the United States and within each European country there are more gradations of opinion than that caricature allows. But the problem, nonetheless, is I think a real and deep one.
About the role of law in this crisis let me say one thing loud and clear at the beginning. When there is a war it isn't just a matter if you're interested in the laws of armed conflict, of judging the belligerent by the standard of the law of armed conflict, and seeing how they perform and either praising them or criticizing them as you are minded.
It's also, and importantly, a matter of assessing the adequacy or otherwise of the law faced with a special and unique set of circumstances. That is particularly the case with this war, with a counterterror war. In other words it's not just the conduct of the parties that needs to be looked at, although it does, but also the adequacy of the law itself.
Against that background I want to look at three questions. First, are the laws of war formally applicable in antiterrorist military operations? Secondly, in the event that such operations involve situations that are different from the kind of war envisaged in the main international agreement, should nevertheless the attempt still be made to apply that body of law? And third, are captured personnel suspected of involvement in terrorist organizations entitled to prisoner of war status?
It's obvious that the answers to these three very general questions may vary in different circumstances, and the most prominent manifestation of the U.S. led war on terror, Operation Enduring Freedom, is likely to be very different from subsequent phases of the war on terror. And in particular, subsequent phases of the war on terror may well involve collaboration with governments which have authority over their own territories and will assume a very different character from most of what we have seen up to now.
My training is in history and as a historical fact I think it's hard to dispute that most antiterrorist operations are largely internal matters conducted by governments within their own territories, often within certain legal and prudential limits that derive from that particular society and its norms.
Within functioning states terrorist campaigns have often been defeated through slow and patient police methods, sometimes with military assistance, rather than by major military campaign. That was true of the campaign against the Red Army Faction in Germany, the Red Brigades in Italy, and also some colonial experiences rather similar— the British campaign against communist terrorists in Malaya after 1948 being a good example. And likewise, and in my view especially, the 30 year struggle against terrorism in Northern Ireland had very much that character of a slow, patient, governmental come military process which did not aim at military spectaculars but which did slowly grind down the hope that the terrorists may have had that they could achieve significant results through that course of action.
I'm laying this out partly to indicate my own prejudices about counterterrorism which is in general, and this doesn't necessarily apply to every campaign, but in general it is a matter of slow grinding campaigns against terrorism.
And in particular one has to bear in mind that the strongest single argument against terrorism, apart from the awfulness of the crimes that terrorists commit, is the fact that terrorism is or becomes, wherever it takes root it becomes a social habit. Started by one level of nationalists it gets taken up by another; started by the left, gets taken up by the right; started by religious groups, it gets taken up by secular groups; or vice versa.
And granted, the fundamental problem of terrorism is it's a social habit which is deeply debilitating in certain regions and countries. One must not expect something which is in the nature of a habit to be rooted out in a single blow. It has to be worn down slowly and carefully over time.
In other words, most aspects of the war on terror we can expect to be very different from what we have seen so far in the first six months of this campaign.
Now the laws of war aspects of this— I want first of all to stress that the laws of war are not just a high-minded creation of Geneva. They have their origins as much in the interest of coalitions as they have in the interest of international, those concerned with international humanitarian issues.
The first major Convention in the field was the 1857 Paris Declaration which resulted precisely from a concern of allies— in this case Britain and France—about having congruent treatment of the issue of neutral trade and neutral shipping during an armed conflict. And in coalitions from that day to this a variety of laws of war issued have been of fundamental importance, and one of the principle underlying themes of what I have to say is that getting laws of war issues right in the very difficult circumstances of an antiterrorist campaign is of fundamental importance if there is to be an effective coalition against terror, and getting them wrong will endanger the existence of the coalition.
Now there's not the slightest doubt in my mind but that the application of the laws of war in a conflict against terrorism is extremely difficult. It's not simple, it's not automatic.
Just to take one obvious and simple example, the traditional law relating to neutrality runs into serious trouble in wars in respect to terrorism as it has run into trouble in certain other international conflicts in the 20th Century.
In particular in this case the traditional law of neutrality is of extremely limited relevance in the war against terrorism for the simple reason that we have UN Security Council Resolutions dating from last September which clearly enunciate a range of duties on all states to take action against terrorists and therefore long before President Bush announced in rather strident terms that there could be no neutralism, no neutrality in the war on terror, the UN Security Council had actually clearly established that very principle. So that's one part of the laws of war that is of limited application in this case. The sanctions imposed by UN Security Council even before September on the Taliban and Afghanistan themselves had ruled out pure neutrality on the traditional model.
As regards the actual conduct of military operations against terrorists, the underlying difficulty governments have in apply in the laws of war to civil wars apply even more strongly in the case of antiterrorist war. That underlying difficulty is that when you view an adversary as essentially illegitimate, as not having the right to bear arms, as not bearing arms in accord with the laws and customs of war, then you have a problem about the application of the laws of war which tend to be based upon some notion of symmetry and equality between belligerents. And historically, in all negotiations on the laws of war, the issue of guerrillas let along terrorists, have been peculiarly difficult.
Added to that is the particular problem for the United States that for 25 years at least the United States has particularly expressed a concern shared in some degree by certain other states about the whole principle of thinking about terrorism in a laws of war framework. That concern has been most closely associated with the U.S. rejection of 1977 Geneva Protocol I. And one of the grounds, one of the stated grounds of the Reagan Administration for rejecting ratification of that was precisely that it was seen in some way as legitimizing terrorists.
Now we can argue, and I would argue that that represented something of a misinterpretation of the provision of the protocol, but that's not the point at issue here. The point at issue here is that there is a history of U.S. recognition that there is a fundamental problem of applying the laws of war in a counterterrorist campaign and of viewing terrorists as in any way legitimate belligerents.
At the same time, and I think the historical record bears this out very clearly, the application of the laws of war, while it may be difficult in counterterrorist campaigns, is never unimportant. Failure to observe legal restraints in past campaigns have been also instructive. Time and again when those engaging in antiterrorist operations have violated what seemed to be fundamental principles in the laws of war— whether by attacking civilians or by torture of prisoners—there have been huge political repercussions.
Take for example the clearest single campaign in the post-war period of an international counterterrorist military operation, the Israeli invasion of Lebanon in 1982. That ran into enormous— It was explicitly justified on antiterrorist grounds from the beginning, and it ran into enormous criticism because among other things of the treatment of prisoners who were treated as terrorists, not entitled to prisoner of war status, lived in appalling conditions at the notorious camps at Ansar and Al Hirim [ph] and also ran into huge trouble of course because of the massacres at Sabra and Shadilah [ph] when local allies, and this of course happens in counterterrorist campaigns, were uninterested in the observance of rules of moderation, stormed into Palestinian camps, and killed people left, right and center.
The problem of maintaining discipline over local allies is a generic problem of counterterrorist campaigns and I fear there's a lot to learn from the awful experience of the Israeli invasion of Lebanon about how not to conduct an antiterrorist operation. And it is worth remembering that some of the worst, the most serious terrorist atrocities, many preceded the invasion and were used in justification of it, but many followed it and the formation of Hezbollah and Hammas after the invasion of Lebanon are evidence of the difficulty of achieving results in an antiterrorist campaign.
Another example of the importance of international standards and of maintaining them in the course of a campaign is our own experience in Northern Ireland where initially the British somewhat pretended to ignore such restrictions and rules, and this led them into terrible trouble, particularly in the issue of condition of detainees and treatment of detainees. In 1972 the British government had to accept that although in no way were these prisoners of war, although in no way did they accept that there was an armed conflict going on in Northern Ireland— whether internal or international— nonetheless, they had to accept international norms in the treatment of prisoners, and in my view that was a correct decision which did a good deal to defuse what would otherwise have been a disastrous situation.
Turning now to the Afghan campaign, it's my opinion and I think it's quite widely held, that faced with a very difficult series of legal issues these have, on the whole, not been particularly well handled either by governments or sometimes by the critics. People have rushed to conclusions in circumstances where they shouldn't necessarily have done so.
Following the events of 11 September, I'm just going to give an example of the kind of thing that can around, the International Committee of the Red Cross, consistent with its general practice which I think is an interesting one and perhaps a good one, sent confidential messages to certain governments reminding them of their obligations under humanitarian law. But alas, they didn't do it in a terribly effective way and in particular they sent, in a message to the U.S. government on 28 September, there was included a statement that the use of nuclear weapons was contrary to humanitarian law.
Now this is a very dubious statement of law. And the United States government, of course, was furious at being lectured at in this way with a dubious statement of law.
I think one shouldn't underestimate the effects that such episodes can have. The ICRC then issued a correction a week or so later, some ten days later. But one shouldn't underestimate the elements of suspicion that can arise from cases such as that where law is perceived as being used in a way which affects one side more than another or is seen as hampering the activities of a government or merely giving it lectures on an issue where it doesn't need any lectures. These issues have to be handled carefully and professionally and they are not always.
Incidentally, I say this not because the ICRC is egregious in this regard. I could equally well say the same about other humanitarian organizations.
I think it was probably wrong of the press office of the ICRC to rush to the view when the prisoner issue became preeminent that the category of unlawful combatant either doesn't exist or at least doesn't apply to any of the prisoners in Guantanamo. I think that was jumping the gun and that the category does exist and needs to be taken seriously.
Briefly, on substantive issues raised by Afghanistan. First, the air war.
In the conduct of the air war, as in Iraq in '91 and as also in Serbia in '99, the United States clearly accepted the relevance and indeed value of rules restricting targeting to militarily significant targets and I think that needs to be frankly and honestly recognized. And indeed the record of these campaigns suggests that observance of norms in this regard is at least to an extent consistent with achieving success. There are undoubtedly problems and tensions. I'm not saying it's simple. But on the whole, rules of that kind can be regarded as professional rules for the effective conduct of operations. But clearly there have been problems with respect to the bombing in Afghanistan.
Firstly, there's a question as to whether concern over civilian casualties hampered the U.S. war effort as has been asserted by some in the United States. Its eventual success against the Taliban would suggest not, but there were indications that the concern had some serious effects. In particular, the war in Afghanistan has exposed more clearly than earlier ones the peculiar problem that those engaged in the business of targeting can't necessarily explain all the rules by which they operate because to explain them fully would be to enable the adversary to know exactly how he can take advantage of those rules. There really is a problem there.
Possible lines of criticism in respect to the bombing involve first of all the issue of cluster bombs. I've recently been in Kosovo and was struck there by the extent to which cluster bombs had proved a more serious problem than landmines, had caused more casualties, and in particular of course, casualties among those who are wholly innocent— young children and the like. And there is a worry, of course, that the use of cluster bombs in Afghanistan may have similar effects long after the war is over.
There are many possible ways to tackle this. Some involve technology, some involve laws of war, some involve better practice in keeping full records of the use of these, but it clearly is a problem that arises from the campaign.
Another problem— there are many that arise from the campaign, but another one I'll just mention is the problem of investigation when things go wrong.
Impressed as many people are by the conduct of the air campaign, in many respects there does seem to be a reluctance among the U.S. military to investigate what goes wrong, to get any kind of accurate records on, for example, the number of civilian casualties, and to eschew the matter after the war. Looking at why particular wrong targets were hit, why particular civilian casualties occurred. I do think that that kind of post-war analysis is particularly important, and it may in some cases be okay to leave it to non-governmental bodies, but I think an official involvement in such a process could also have value.
Now on the question of prisoners. There's been, as you know, a huge debate and in my view a huge debate on an issue on which there didn't need to be much debate. 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.
There is a much more difficult question about what you do with the category and also who exactly you include in that category. Those question certainly merit further discussion.
The importance of the prisoner issues arises not so much because of the concern about the fate of particular prisoners, and indeed if I was asked which prisoners I was worried about in terms of the actual treatment of them it wouldn't be the prisoners in Guantanamo but it would be the many times more prisoners held in Afghanistan, often in appalling conditions. But the treatment of prisoners, especially when they are completely within one's control, and that is perhaps why Guantanamo has assumed such significance, that question has huge political ramifications. It's always an emoted issue. And in this case it has to be seen against the background of the more general nervousness, as I mentioned at the beginning, about U.S. observance of international norms.
Now the latest American pronouncement on this of real importance is a fact sheet produced by the White House on the 7th of February. I love the title, "Fact Sheet" because I've never read a more theological document in all my life. But in its exact words it says, and it's important, "The U.S. is treating and will continue to treat all of the individuals detained at Guantanamo humanely and to the extent appropriate and consistent with military necessity in a manner consistent with the principles of the third Geneva Convention."
This is an important statement and it's been a long tradition of which my country is part as well, of recognizing the application of international norms even in a situation where you are dealing with people who don't quite fit the standard category. And it's a very important traditions. There are things to welcome in the White House statement including, in my view, the very clear and honest admission that they're not going to supply the prisoners with musical instruments and various other things that could rightfully be allowed under the Convention. That I found sensible.
But as you all know, the White House fact sheet did not answer all queries and it has a "now you see it, now you don't" quality where one minute the Geneva Convention is said to apply and then the next minute it's said not to apply.
In my view there is a way out of the tangle in which the United States has got itself on this problem. It's a very simple way out and it's a way out which I believe to be well understood by service lawyers whose opinions have not on the whole been sought by the policymakers in this particular crisis. That way out would be to accept openly the simple rule which was specifically designed in the international law of armed conflict precisely to cover those people who may not be recognized prisoners of war, may not be civilian internees. That's the rule laid out in Article 75 or the unmentionable 1977 Geneva Protocol I, a treaty to which the United States is not a party. But the United States has accepted in numerous statements that among the rules of Protocol I which should be applied and is part of customary international law, the United States has accepted that this rule, this residual fundamental guarantees rule of Article Protocol I is applicable. They've accepted it in general but they haven't applied it in this particular case.
The easy way out and sensible way out of the crisis is simply to accept that this particular rule, forgetting the rest of Protocol I, this particular rule of Protocol I will be applied in this case. That would immediately get the United States past the criticism that is made by allies as well as adversaries that it somehow trying to wriggle out of the basic international legal norms that apply to this case. That's the rule that applies to the case. It has very basic rules of good treatment. What the United States is actually currently doing in Guantanamo is within that. It would be no problem to implement those rules.
There is an additional advantage which would get the United States off of another hook in going down that road which is the advantage that Article 75 contains some basic rules for fair trials. And one of the world's great concerns about U.S. policy in relation to prisoners and detainees is the concern about the Presidential Order which, as you all know, is a black box. We simply do not know what is in it. We may learn within a few days or weeks. And my guess is that when we do learn it will probably be pretty much consistent with those conditions of fair trial which are contained in Article 75 of Protocol I.
If that's the case, why not swallow your pride and make a virtue of it and accept that these internationally accepted rules are the basic bedrock of fair trial, and they're not very difficult to implement, will be followed in this case. That would do a great deal to reduce the huge amount of poison that there is in the atmosphere on this issue.
Finally, is a new Convention needed? We've heard a number of statements that because the war on terrorism is so complex and difficult, involves such unique circumstances, doesn't completely conform with what is in the Geneva Convention, the sort of image of war that is implicitly contained there, we've had numerous suggestions that a new Convention is needed and the current United States Ambassador for War Crimes has been proposing that there should be a new Convention.
I have yet to see one single proposal for what might be included in such a new Convention. I've read the statements of your Ambassador for War Crimes and I found nothing. I've, since the end of last week with one or two other people here at a workshop dealing with the application of the laws of war including in the present crisis, and again, not one single proposal for what might be included in a new Convention emerged.
In other words, and this is the conclusion of my remarks, the existing laws of war may be, indeed are in many respects, a poor fit for an antiterrorism war. That's nothing new. It's a historically familiar situation. But imperfect a fit as they are, they are what we have to work with and it would be better to work with them than to try and create something entirely new.
Thank you very much.
[Applause]
MR. DAVID SCHEFFER: Indeed it's a very high honor to follow the best there is, Adam Roberts, so all I can do is humbly offer some reflections from a junior in the college of international law compared to the titan sitting next to me here. I also know I have an expert audience in front of me.
Nonetheless, Adam has raised so many excellent points, and I know these points are going to eventually find their way into the journal of survival, right Adam, to be published. So all is not lost for the print industry in terms of Adam's contribution.
I do want to echo Adam's reflection that of course today is the six month anniversary and we speak on a rather sobering day in this country and I think in many other countries that lost loved ones on the attack on September 11th. I also want to recognize that this continues to be sobering for the United States military forces which are losing men on the battlefield in Afghanistan.
I will only share with you one anecdote on a day such as this which is that a very close friend of mine working in the Pentagon found out that a couple of hours before he was to be sitting in his office precisely where the plane hit, his wife went into labor, was rushed to the hospital, and so did he rush to the hospital. He had a meeting planned for almost the precise moment of the hit with many other people. That meeting was canceled. They did not appear in his office. And every single one of those individuals survived and are alive today and Noah was born a few hours later, and some day Noah will be told that he saved his father's life, and many other lives that day.
Adam has raised many, I don't even want to say provocative. I think they are extremely reasonable positions. I actually share my agreement with almost everything he has said.
I think what I can best do is raise some elaborative points, some issues that sort of amend and tag on to some of the issues that he has raised and provide some additional perspective to this very very challenging legal and political issue.
First, we might start with the most provocative argument out there today which one can find in Robert Kagan's new book, "Warrior Politics", that in fact perhaps we should put international law aside in the war against terrorism, that we need a pagan ethos, drawing upon the ancient philosophers in how we wage this war against terrorism and not get too wrapped up in whether it complies with the laws of war.
I certainly share a very different view from Mr. Kagan and his book. I think that in the end it will be the laws of war, it will be the law of antiterrorism that is of tremendous assistance in defeating international terrorism, and that's to walk away from it or to counsel our leaders that they can put it aside in some other black box in order to pursue their objective of victory as quickly as possible against terrorism, will ultimately be extremely counterproductive and will reverberate against the United States for generations to come. We need to be careful that does not happen.
Adam I think uses a very good term which you don't really ear much in the television media these days but I think it's the way to call it, and that is antiterrorism military operations. When you see his article published you'll see that that's the major feature description in what he writes.
And yet ever since September 11th while recognizing the right of self defense as confirmed by the United Nations Security Council, confirmed by the North Atlantic Treaty Organization and other regional organizations actually harping in on this issue, we seem to have embraced a rather schizophrenic view of what exactly we are doing in the field globally.
Is it an armed conflict that we are engaged in every step of the way? Every hour in every jurisdiction— Or are we involved in an enforcement action that may not rise to the level of strictly an armed conflict, per se, but rather using a whole range of law enforcement, similar law enforcement techniques to deal with the enemy? So that in any particular jurisdiction— and there are many of them around the world where al Qaeda exists, you are dealing with the enemy, it is difficult to state at any precise point in time yes, I'm involved right now in an armed conflict in accordance with the laws of war against the enemy in Jurisdiction A, and I'm also involved against the enemy in an armed conflict involving the laws of war in Jurisdiction F as well.
I think in fact it's not that simple. You're involved in one jurisdiction in an armed conflict— Afghanistan is a clear example. And yet in another jurisdiction, let's take Brazil where al Qaeda has a presence, I'm not so sure you're involved in an armed conflict in pursuing the enemy in that jurisdiction. In fact you're looking at what is in civilian law with regard to the enforcement of Antiterrorism Conventions, what has been implemented in their domestic law to go after terrorists? And what can we do in the United States in terms of dealing with that sovereign country to get at the enemy within the borders of Brazil?
I think sometimes it would be extremely counterproductive to say well, the only thing that restricts us here, the only thing we need to be looking at is the law of war. We've defined a global enemy and all bets are off as to how we use our military force because we're in an armed conflict that's global, as opposed to saying no, it's a much, much, much more sophisticated exercise jurisdiction by jurisdiction as to what legal tools you can use to penetrate the sovereignty of that jurisdiction and to do so in a way that keeps the coalition together and that uses the tools that law offer you in the smartest possible way as opposed to a sort of rambling, blunt application of the law.
In the past as Adam has very well put it, we sought to defeat terrorists as terrorists, not as warriors. We've sought to arrest individual terrorists typically within domestic law enforcement capabilities. Once you seek to transform terrorists into warriors and invoke the law of war without first recognizing who they really are, it can indeed become very confusing. Simply to equate a terrorist as an unlawful belligerent does not take you very far in my opinion. There are many al Qaeda members of various character and commitments who probably are unlawful belligerents but may not be actual terrorists. And I'm thinking particularly of some al Qaeda people on the ground in Afghanistan who are probably in the combatant framework of opposition to us, but would not say that they are literally terrorists. They're actually on the ground fighting us in a combat situation.
Now unless you accept that mere membership in al Qaeda is an act of terrorism without anything more, then you've solved your question very easily and I know there is that thinking within the Administration that simple membership in al Qaeda is a classification of the individual as a terrorist. I would simply say that while we do have some precedent of this from Nuremberg in terms of how the SS was handled in the Nuremberg Trials, the judges still made it very clear that in terms of actually prosecuting an SS office, while there's a predicate of membership that helps set up the prosecution, in order to actually convict that individual you've got to show a real involvement in a specific crime by that individual to actually prosecute that individual and incarcerate them and perhaps even impose the death penalty on them. Your membership doesn't get you all the way. And of course membership in the Nazi party was rejected by the judges as a predicate for criminal identification.
The U.S., as Adam argues, is right in having long resisted thinking of terrorism in a laws of war framework. We have actually been in the lead for the last 20 years in framing 12 Antiterrorism Conventions in the world. The United States negotiated, along with our allies, in the forefront of those negotiations. Therefore, we have to be extremely careful that as we analyze the situation we do not simply put aside all of those Antiterrorism Conventions and all of the implementing law in Title 18 of the United States Code which implements many of those Conventions as terrorism law in our society, that we turn our back on all of that and simply focus on the law of war. I think that would be a waste. It would be very inefficient.
And indeed, the performance of the U.S. government so far shows that they're not doing that. That in fact the only indictments that have been delivered so far have been Title 18 indictments in U.S. Federal Court. There have been no indictments on violations of the law of war. If you look at the indictments that are in Federal Court today regarding Misawi, Reed, Walker Lindh, there is no description of them as unlawful combatants. There is no description of them as violating the laws of war. The charges in those indictments are all Title 18 antiterrorism charges.
So that leads you to sort of analyze how are we approaching terrorists one by one?
The law seems to be applied depending on where the individual actually is. If he's on the battlefield in Afghanistan or if he's captured and turned over to U.S. authorities in a country that does not care what becomes of him, namely the recent example in Bosnia or perhaps Pakistan, then he flies to Guantanamo and becomes an unlawful combatant subject to the law of war, but his colleagues, many of whom collaborated with their Guantanamo friends we think very closely, who luckily perhaps made it to a European jurisdiction or certain Asian jurisdictions or, get this, to the United States of America, find they are excluded from the law of war. They get prosecuted under antiterrorism laws. As I said, there's no mention of the law of war or combatant status in those indictments in the United States, and if you look at the indictments in Europe I don't think you'll find that description either. You'll find European jurisdictions are prosecuting these individuals and detaining them in accordance with antiterrorism statutes.
So we have emerging a dualist framework for the war or campaign against terrorism. Even the endeavor is dualistic in description and character. Is it a war against terrorism or is it a campaign against terrorism? You see the phrase used differently depending on what jurisdiction you're talking about and what law is being applied.
It's military operations in some theaters; it's law enforcement in others. It's the law of war for some detainees, it's antiterrorism law for others. It's a killing machine in one area, it's an arrest machine in another.
Now I'm not saying there is anything particularly wrong with that. I think we have to approach this is a very sophisticated way. The President needs the option of military commission provided they are properly constituted. So I'm not saying one or the other. I think it's both. But we have to recognize the complexity of bringing these various laws and judicial forums together in one coherent assault on terrorism.
Keep in mind the following, too, as we emphasize the law of war and as we try to make the case that those in Guantanamo and perhaps in Afghanistan in detention are unlawful combatants, we set up a challenge, a sort of presumption to those who remain at large of transforming their conduct into lawful belligerency. If in fact we're going to recognize them as warriors, then why not be a real warrior? So we invite that risk.
An unlawful combatant, if you look at the Geneva Convention that sets up what creates an unlawful combatant for purposes of prisoner of war status or non-prisoner of war status, has a checklist, and if he can go through that checklist on any particular day and then take an action whereby in fact he is wearing some kind of uniform, whereas he can say that he has a commander somewhere in the world, where he says gosh, I'm going to wear my weapon openly today— it happens to be a box cutter, and finally, I'm going to do this in accordance with the laws of war. I'm in conflict with an enemy. I'm at war with that enemy. I'm now going to strike a military target— just military. All military. The USS Cole, the Pentagon, it's military.
So once you transform the terrorist into a combatant, whether he finally ends up being unlawful or lawful, you invite that prospect, you encourage terrorists, perhaps you to meet you on the same playing field but nonetheless to still pursue their same objective which is to destroy at a minimum military targets, and then in their own understanding of military necessity, collateral damage which can involve civilians.
So what is to be done? I would suggest the following, and it's just sort of a checklist. There's no huge coherence in what I'm going to run through in this checklist because I don't think anyone has, other than Adam, a totally coherent view of what this is all about. [Laughter]
One thing I would suggest is that as Adam says, the military commissions are not on deck yet. We're still waiting for the Defense Department to roll out its rules for the military commissions. And I would suggest that one thing that could be done is to ask Congress to vest in the military commissions that are created jurisdiction over antiterrorism laws. So that when you bring an al Qaeda or Taliban official before a military commission you actually give the prosecutor the full platter of opportunity to use not only the law of war against that individual but also all of Title 18 that has our antiterrorism provisions so firmly embedded in it now. But that, in my opinion, would take an act of Congress to broaden the jurisdiction of the military commission beyond the law of war to specifically antiterrorism law.
Can unlawful belligerents be held indefinitely with any legal proceeding in Guantanamo? The irony, of course, is that if they're prisoners of war they can be held essentially indefinitely until the end of hostilities which might be many, many, many years from now with respect to the war against terrorism. But if that is not to be the case I think Adam would— Well, I don't know if you'd agree, Adam, but I just don't think you can accept the argument which has been made that an unlawful combatant can simply be held indefinitely until the end of hostilities with no legal proceedings whatsoever taken against that individual. I think ultimately there would be a price to be paid from that kind of conduct.
I think if you don't categorize them as prisoners of war you do have some obligation to deal with them, to determine is there illegal conduct that needs to be prosecuted? If not, how do we detain these individuals in a way that is cognizant of due process, particularly if some of the individuals in fact, if there's anything to the presumption of innocence, if you have wrongly detained someone for that period of time without any legal proceeding, without any access to habeas corpus then you have a problem.
Finally, I know I'm stretching this, Jim. The status of Guantanamo.
As lawyers we have so much fun looking at prior cases about what can you do in Guantanamo that you would not be permitted to do on U.S. territory, and how can you avoid U.S. Federal Courts by having individuals detained in Guantanamo? We certainly have developed a case history on that, particularly with the Haitian refugees and others in recent years.
I would say regardless of how solid your argument is as a lawyer, that Guantanamo is sort of a pre-fire zone for due process of individuals in United States practice. And no matter how solid your legal argument might be for making that, it's transparently sort of cheating international law by saying that you found some place in the world where you can act outside of international law and you can act outside of federal law and no one can get you for it. I find that to be a disturbing precedent. I think we have to be more careful in Guantanamo that at a minimum we look at Article 75 of Protocol I and say we can certainly recognize that there are international standards that we are recognizing, and of course the government has gone a great distance in trying to make that case now.
But the point is, it hasn't convinced the international community, I don't think, as to how well is it managing this very unique jurisdiction of Guantanamo? How well is it managing it in terms of its overall responsibilities under international law?
Finally, I just have to mention, we are still pursuing Mohammad Mullah Omar and Osama bin Laden. Now one of the arguments we make about the al Qaeda detainees is that they don't meet those four criteria in Article 4.2 of the Geneva Convention, one of them being they don't have a clear chain of command over them. They're sort of out there, so often as free agents.
The problem is that if we actually capture one of these top leaders the case the prosecutor will want to make is a command or superior responsibility case and say you've got this organizations and you're running it and you're directing these individuals to go out there and commit these acts of war against the United States of America and others. So there is a commander and subordinate relationship there. And by the way, we're going to bring some al Qaeda people in here to testify against you that in fact they were acting in accordance with your, if not explicit directions, your implicit directions through other operatives, that you knew, or they knew were coming from the top.
So we have to be very, very careful as we make this unlawful belligerents case or combatants case for the al Qaeda that we don't sort of suck the wind out of any ultimate prosecution of the very top leaders of this terrorist organization. They're leaders, they have followers, and that's what al Qaeda is I think all about.
Many other points I could raise but I know I'm stretching the time, so let's get to questions. Thank you, Jim.
[Applause]
MR. STEINBERG: Thank you both.
I'm going to take the privilege of a moderator and ask the first question. That is, you've argued that although the circumstances are very different, that there is a strong argument particularly within the framework of the laws of war [inaudible]. How do you respond to those who say the problems we're facing, the problems that we're dealing with, particularly with prisoners of war treatment as you have individuals serving in the military, the main purpose is to [inaudible] conflict, but that there's maybe, the focus is largely about [inaudible] once the war is over and done with. But here we're dealing with individuals who have been taken off the field and they're [inaudible] what they've done in the past, but the possibility that they'll do something in the future. [inaudible] people who are dangerous and they may also even have information that is very valuable about future actions.
So for example when you think about treatment issues, how should we think about how we treat detainees that have information we believe, as in the case of Misawi, about future actions, and because he's able to [inaudible] in terms of [inaudible] in dealing with a challenge that's so different than [inaudible]?
MR. ROBERTS: I don't doubt at all, Jim, that the points you make about there's a fundamental difference of these detainees from others has to be respected. And in particular, there is the difficulty that in some cases— this may not apply to 90 percent of the people in Guantanamo, we just don't know. But at least in some cases these may well be dangerous individuals, personally dangerous, in a way that a normal prisoner of war is not if he's part of the armed forces of a state. If these individuals claim to commit individual acts or act as a very small group.
So the problem of releasing them in some cases may be very different from that of a normal prisoner of war. And in some cases very little may be known about them. It may not even be certain what country of origin they have, to which jurisdiction the prisoner should be returned.
So I do think that one needs to have an element of mental flexibility in approaching the issue and a recognition that simply the [reach me down] approach operates the standard rules may not work in every case.
At the same time, in responding to one of David's many excellent questions, I don't think that it would be possible simply to hold them as prisoners forever in Guantanamo or anywhere else simply on the grounds that they were picked up in Afghanistan in compromising circumstances. There would be a political huff not only internationally but I'm quite certain within the United States if that were attempted year in, year out. They would have to be charged with something or other.
That's why I think there is a need for a recognition that these individuals have a different treatment than the standard prisoner of war and there will be a need to try them.
Of course even a normal prisoner of war can be tried for specific offenses, especially violations of the law of war. That isn't necessarily a problem. But in this case there needs to be a need to think about other offenses with which they can be tried. And there the only thing I would add to what David Scheffer said which I found very, very interesting about the possible basis of trials, and I agree with him that antiterrorism laws may be the critical thing, that may well apply to Guantanamo.
The only thing I would add is that in some cases, especially with the minor riff-raff who seem to be a significant part of the complement of Guantanamo, the offense with which they might be most easily charged is the offense of signing up with the armed forces, with foreign armed forces, which is in some cases a violation of the foreign enlistment laws of their own country. In the United Kingdom, for example, we have a foreign enlistment act which might apply to these people.
But there the only way you could prosecute, as far as I understand it, would be by cooperation with the country from which these characters come. Because it's not an American offense for Brit to sign up, to engage in foreign enlistment. It is a British offense.
So there may be a very complex process of international negotiation and collaboration in respect to at least some of these characters. And I don't think we're going to get a single standard answer to how the detainees will be treated. But fundamentally I do agree with the approach he takes.
MR. SCHEFFER: If I can just add, Jim, I've long thought that at the end of the day we probably will not see a large number of trials with respect to these individuals. I think the main objective is to glean as much information as we can from them in order to deter future threats. In fact Secretary Rumsfeld has pretty much made that clear from the podium, that that's his primary objective is information about future threats as opposed to accountability for past conduct.
So that leads you then to the next question. But if you still presume that they could pose a threat, regardless of how much information they spill to you, how do you dispose of them? And that's where the dilemma arises, because in fact if you were to categorize them as prisoners of war, you could in fact detail them as such until, and this is where the United States would have to take the heat if it came, until we state when the hostilities have ended. We might take some heat for that but I think it would be probably a manageable heat. Whereas if they are not prisoners of war and are detainees, then we are going to come under heat as to how judicially are they going to be disposed of, and I don't think we're going to want to take a lot of these people to trial. There's not going to be enough evidence. It's an extreme hassle. We could be embarrassed in the results.
So I've said that clearly getting them back to their home jurisdictions is one possibility, but I think that's where diplomacy is all important because on a case by case basis you'd want to sit down, your legal advisers sit down and say will this person be prosecuted in your jurisdiction? Would he be incarcerated for a certain period of time and taken out of action? And finally, are you going to comply with the Torture Convention in how you handle this person? So there are lots of issues that have to be dealt with, but it's an intense diplomatic exercise.
MR. ROBERTS: I don't want to hog the time, but just one part of your question I didn't answer is the part that David just mentioned about interrogation methods. That was implicit in your question. Since you've got to go early I'd better answer now.
I have to say, I've got a very strong prejudice in favor of keeping interrogation methods legal. That prejudice derived in part from experience of European countries, including my own, in colonial situations facing terrorism and the experience has been A, that information elicited under torture or what comes very close to torture is extraordinarily unreliable; and B, interrogation methods that stay within the law are often, if skillfully and professional conducted, quite effective. So that's my prejudice in answer to your question.
I think one has to be very careful before assuming that there is necessarily a conflict between legality and effectiveness. There is sometimes in some areas of life without doubt, but in this area it's not at all clear that the answer is that there is a conflict between the two.
MR. SCHEFFER: And let me just add that as a POW there is nothing to prevent that POW from in fact cooperating in an interrogation in which a prosecutor can use very very effectively in plea bargaining and mitigation of punishment to still elicit information from a POW. This notion that all they have to give is their name, rank, serial, etc. is correct, but they're going to find a lot of reason to perhaps go beyond that in cooperation. Whereas ironically if you're just a detainee, you may find you don't have as great an incentive, if we can't use torture, etc., to elicit these answers, to actually cooperate. What's in it for you
Q: Al Millican, Washington Independent Writers.
I was wondering if you know if nations under Islamic law have played any significant role in formulating international historically? And as far as current international law goes, how strong is the influence with the Christian just war theory? I'm also curious, on Charles Colson's radio broadcast he claimed that this was very much an influence on Donald Rumsfeld and actually his bombing strategy was changing as a result of him trying to live up to just war, but it was causing some internal conflicts, some resistance from military professionals.
MR. ROBERTS: In principle the answer is clear. The origin of most of the modern law of war include a very major element by countries who call themselves Christians— going back to the Geneva Conventions and the like. But as the law has developed and as history has moved on, large numbers of Muslim states have become parties to the agreement and have played a significant role in shaping the agreement. And sometimes that has been a problem for the United States. One shouldn't deny it.
For example, in the negotiation for the '77 Geneva Protocol I, a number of Arab countries were very keen on provisions in favor of those struggling for national liberation because they included the Palestinians in that category and that was one area which was a problem for the United States. But to the extent that Arab and other countries have taken an active part in negotiations or agreements and have become parties to agreements a by and large they have, I think it's fair to say that the body of law that we now have in this field has a genuinely international and multicultural character.
One can find the same history in the human rights movement paralleling it. It may begin in the West, but it has developed and moved on.
So there is that element there.
I can't say that it's necessarily the case that they have exactly the same understanding as Western states do of the content of the law or necessarily fully apply it. But it was an effective common basis for coalition operations.
For example in the 1991 Gulf War against Iraq, when a number of Arab states accepted the same basic rules including in regard to treatment of prisoners as did other members of the coalition.
So I don't think that is now a huge problem. What is true is that the laws of war have come to be seen by some in the world as somehow working to the West's advantage. The West manages, and the United States in particular, to bomb targets within the laws of war that is very difficult effectively to wage war against them. That is part, but only a small part, of the explanation for the tendency to be excessively tolerant towards methods and thoughts of the Islamic world, that have to struggle with plainly violating the most fundamental principles.
So I think there is a problem of the kind that you describe, but it's nonetheless a mistake to see the law as simply a Western imposed construct.
MR. SCHEFFER: If I can just add, Adam, I sat for six years in negotiating rooms with Arab colleagues on the negotiation of both the Rome Treaty on the International Criminal Court and then the Elements of Crimes for two years after that for that Court. So I became extremely accustomed to Arab points of view in those discussions as we tried to establish what is customary international law for purposes of the treaty, because we would only accept it to be listed as a crime if we, the United States, believed it were part of customary international law. And we had many widely different opinions and discussions about that for four years leading up to the treaty and then two years after on the Elements of Crimes, which is a very important document.
I will say this. I think at the end of the day we found consensus with Arab states that provide a list that every Arab state can point to and say they believe in this and so does the West believe in this.
So I think one of the products of that is very fortunate now, that we have a unified view that everyone can point to that had incredible participation by Arab states in, and I think as you watch the debate unfold on the crime of aggression for this court, which is not an actionable crime yet, it has to be defined in order to be prosecuted by the Court, the Arabs take a far more liberal, far-reaching opinion about what constitutes aggression than do many of us in the West. And somehow there's going to have to be a meeting of minds, a consensus before that crime can actually be prosecuted, and we're still some distance from reaching that consensus.
Q: My name is Ray Panima. I'm from American University.
I want to ask both of you gentlemen a difficult, far-reaching question, but you're both experts and we are told that the opinions of noted publicists are a source of international law.
I would ask you to look at the discussion we've had today about ascription of domestic versus international status as an example of a moment of crisis maybe and policymakers' conception of the relation between states and what your predecessors Hedley Ball and John Vincent called international society, in an attempt to integrate into state practice an acknowledgement of how globalization or whatever you want to call the current state of plan policy is putting tensions into that and changing that. And not to be too controversial, but in the end while we've been talking about responses to 9/11 I think this very question about the notion of the state in respect to international society may have a very significant impact on why the event occurred in the first place.
MR. ROBERTS: That's a deep question with five minutes to go, and it has lots of dimensions. It's a very good question.
I'll just deal with one dimension of it, but there are others. One dimension of it is the way in which in response to the events of 11 September, there is as your question identifies, a tension between on the one hand a primarily national response and on the other hand an international and collaborative response, and they do involve, as you say, very different visions of what international society is about.
The advocates of a national response say, and they have some reason, that it's a rough, tough world out there. Ultimately it's very hard to get agreement, a real substantive agreement of values. Anything you do is controversial. If you try and engage in a military campaign against terrorism even though it's an act of unspeakable barbaracy that needs to be tackled, somebody will come along and say that what you're doing is illegal. And my own guess, and I hope I'm wrong but it's my guess, is that that kind of attitude which has some substance to it, helps to explain why the United States is probably now less likely than it was six months ago, to subscribe to the International Criminal Court. David would know more about this than I do and he can chip into this. But my guess is that that sense that whatever you do somebody will criticize it, and the United States armed forces don't want to be subject to an international prosecutor sitting in the Hague who may not understand fully all that Washington understands. That sense is probably greater now than it was.
On the other hand, and this is where your question is really fascinating, we have a situation where international collaboration is absolutely essential. There is no way in which a do-it-yourself mentality is going to make a significant impact on global terrorism. It has got to be a collaborative effort. And that means operating in part through alliances, legal procedures, institutions, resolutions. We may shortly get a new convention on terrorism because, as David has implied, we have a large body of law already of international agreements condemning terrorist acts as criminal, but they all relate to particular acts— hijacking an aircraft or whatever. And there is now the prospect, although it is at the moment stuck in the UN in the usual difficulties, of a general agreement against terrorism, and that may be of some use. I think it's a desirable development, but it's not going to change the world.
We are at a very interesting moment where the main do-it-yourself aspect of the war on terrorism, or do it with the Brits because it's much the same thing, is over in Afghanistan. Not completely, but a principal phase of it is over.
In my view the next phase is much more collaborative, involves a range of bilateral activities and also will involve continuing to act through the UN and other multilateral bodies. And it's a very, very interesting moment.
It would be obvious to you that my prejudices are in favor of not closing the door to the multilateralist options, but one has to recognize that the tide is not all moving one way, and that the nation state is not on the way out, and indeed the people who advocate a simple supernationalism in my view end up reinforcing the view of the realists who say a state is the only thing that counts because the unrealism of their position, and it's plainly moving beyond what is in the realm of the immediately possible, actually has the effect of reinforcing the state centered approach.
So that's an indication of where my prejudices are, but it's only in answer to one part of a very broad question.
MR. SCHEFFER: I'd just add a couple of minutes.
First, I think those of you who may have heard Sir Jeremy Greenstock the British Ambassador to the United Nations who visited Washington last week, he actually was very focused on this issue since he's head of the counterterrorism committee in the Security Council— a very, very busy committee. And he made the point that there is a good deal of sympathy among other governments for specific American responses to 9/11 itself. But once you try to stretch that and say you have the unilateral right to go beyond that and take military action that may not be directly tied to 9/11 but is preemptive self defense, for example, around the world, but to do so in defiance of international norms, in defiance of the procedures of the Security Council, etc., then that support's going to fade away very quickly and you are going to be out there alone. That may not get the job done and it may not be the best way to protect American interests.
So I think there's clearly a recognition of 9/11, but beyond that it's going to be again, a very necessary mix of some unilateral plus a lot of multilateral actions in my view.
Jeremy mentioned the ICC is perhaps having lost whatever luster it may have had over the last six months. I would hope that there is a, shall we put it, I don't want to use the word sophisticated, but let's just say a proper perspective on this treaty in light of 9/11.
What will best protect American interests? That's the question I always had to answer as a negotiator.
If we walk away from the treaty in a very rejectionist way at this point and we slam it when it's about to be created with 60 ratifications and almost all of our allies and friends hugely supportive of it, does that protect American interests? Tough question. And if you answer that question simplistically, you will be wrong.
The way to approach the ICC Treaty is to ask your question, how can we conduct ourselves in relationship to that treaty in a way that best protects our soldiers, advances international justice, and gets the job done?
And I think once you go down that path you'll find that given the membership of the Court, given how much we have to lose by turning our backs on it and how much we have to gain by being cooperative with it, by continuing to explore how we might be able to engage with the Court, I think at the end of the day you'll see that the best way to protect American interests is to be in the room and not to be so intimidated by this institution and to act intimidated and then to be the intimidated nation, that we walk out of it and ultimately it will slam us, because these judges are human, the prosecutors are human, and if we're the enemy to this Court, at some point in the future they'll register that and they'll say no, I'm not going to give the United States a break today. Whereas just as with the Yugoslav Tribunal and the Rwanda Tribunal we've been so intensely involved with it that I think there's a clear recognition, hey, this is our friend and they listen to us.
The ICC needs to listen to us and they won't listen if we walk away.
MR. RON NESSEN: Thank you very much, Adam, for a very important presentation. And David, for your very insightful comments.
Thank you all for coming and for participating. You can find more information on this issue and related issues on the Brookings web site at brookings.edu. Thank you very much.