Legal Issues in the 'War on Terrorism' - Reflecting on the Conversation between Silja N.U. Voneky and John Bellinger
German Law Journal, Vol. 9, No. 5, p. 711, 2008
26 Pages Posted: 27 Feb 2009
Date Written: January 12, 2009
Abstract
It is an irony of our times. The 9/11 attacks catapulted international humanitarian law (IHL) - otherwise known as the "laws of war" or the "law of armed conflict" - into popular conversation as never before. Who ever heard of Common Article 3 before the U.S. invasion of Afghanistan? Can anyone recall arguing about the criteria for prisoner of war status before the Taliban and al Qaeda? Was anyone parsing the difference between civilian trials, courts martial and military commissions before Abu Ghraib and Guantanamo?
To its credit, the U.S. Department of State, and to his credit, State Department Legal Advisor John Bellinger, have worked overtime while being paid with insults and marginalization from many quarters for their attempts to bridge chasms. They are smacked from within the administration and its American right-wing base for trying to curb the worst American excesses. Meanwhile, they are greeted with polite skepticism by America's European allies, and less politely by others as defenders of the indefensible.
But here's the rub. While those of us who prefer the view from the "reality based community" should count Mr. Bellinger one of our own, there's simply too much at stake in the purposes that human rights and humanitarian law are meant to serve to let the errors of his vision pass unremarked out of respect for his heroic efforts. Although torture as official policy will hopefully fade with the installment of a new administration in 2009, complex questions of detention powers, detainee status, and fair trial rights will remain. I hope, therefore, that my contribution to the fruitful dialogue that unfolded between Mr. Bellinger and Silja Voeneky in previous issues of the German Law Journal will be taken not as lack of gratitude for Mr. Bellinger's efforts, but rather, as useful in the service of a debate that will continue beyond the Bush era.
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