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

Abstract

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 the 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 U.S. positions on questions of the legal basis and legal limits of the “war on terror” and the treatment of detained terrorists.

In order to enhance the dialogue concerning these matters, it is important — as a first step — to make very clear the differences that exist in the interpretation of the relevant legal rules. Those concern, for instance, the limits of the law of self defense; the applicability of the laws of war; lacunae in the laws of war; the question of defining the terms “unlawful combatant” versus “offensive civilian;” the question of who is a prisoner of war; the treatment of detainees who are not prisoners of war; the legal limits of the Third Geneva Convention and of Common Art. 3 of the Geneva Conventions; the applicability of human right treaties; the core principles of humane treatment; the range of procedural rights; and the interpretation of the prohibition of torture.

This contribution tries to find “European” approaches and answers to the legal questions relating to the fight against terrorism. It serves as a European response to Mr. Bellinger’s recent invitation for dialogue. Importantly, this response goes so far as to propose how misperceptions and misunderstandings might be avoided in the future.