Bellinger: Legal Issues in the War on Terrorism

John B. Bellinger, III (Legal Adviser, U.S. Department of State) has published Legal Issues in the War on Terrorism – Reply to Silja N.U. Vöneky (German Law Journal, Vol. 8, no. 9, p. 871, September 2007). (For the article by Silja N.U. Vöneky, see here. Vöneky's piece was a response to a speech Bellinger delivered at the London School of Economics in October 2006, which he subsequently published here.) Some excerpts:

[W]hat are the differences between Dr. Voneky's approach, which acknowledges that terrorists are "offensive civilians" who may lawfully be targeted in military actions, and our approach, which categorizes these individuals as "unlawful enemy combatants"? Under both models, a State can use military force to respond to the threat posed by dangerous terrorists, can detain for the duration of the conflict those individuals who continue to pose a threat, and must treat individuals involved in a non-international armed conflict consistently with Common Article 3. While there may indeed be substantive differences between our approaches, I would suggest that it would be more productive to confront directly the question of how and when terrorists may be targeted and how they should be treated as detainees, rather than engage in theoretical arguments about legal categories. For example, Dr. Voneky's article argues that only terrorists who have a combat mission can be lawfully targeted by military force. But who has a "combat mission"? Is it just the terrorist who straps on the suicide vest? What about the vest maker? For years, numerous law of war experts have grappled with these issues at a series of expert meetings co-organized by the ICRC and the TMC Asser Institute that has focused on the meaning of "direct participation in hostilities." Although the experts’ work is not finished, I am aware that it delves into these difficult questions, and I look forward to reading it.

. . . Ultimately, my hope is that this conversation [regarding the legal framework for the use of force and detention of combatants in an armed conflict with non-state actors] will result in the recognition that the threat posed by al Qaida does not neatly fit within existing legal frameworks, contrary to Dr. Voneky's conclusion. Common Article 3, while containing important baseline protections, does not provide a comprehensive set of rules to govern detention of combatants in non-international armed conflict. More and more, those in the international community are recognizing the limitations of existing law, as reflected in the growing number of international governmental and academic conferences dedicated to discussing this issue. Some governmental officials forthrightly have expressed their agreement that the law in this area needs further development. OSCE Special Rapporteur for Guantanamo Anne Marie Lizin recognized in her report from last July that "there is incontestably some legal haziness" regarding the legal status of members of international terrorist organizations. Indeed, she recommended the formation of an international commission of legal experts to examine the question. Likewise, at last year's U.S.-E.U. summit, then-Austrian Chancellor Wolfgang Schussel acknowledged that we face legal "gray areas" regarding detention of terrorists. More recently, the Foreign Affairs Committee of the UK House of Commons wrote that the Geneva Conventions dealt inadequately with the problems posed by international terrorism, and called on the UK government, in connection with States Parties to the Geneva Conventions and the International Committee of the Red Cross, to work on updating these Conventions for modern problems. Although we do not - and will not - always see eye to eye with our European allies, I am encouraged that we have reached some degree of common ground, and that there is a growing acknowledgment that international terrorist organizations like al Qaida do not fit neatly into the existing international legal system.