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62. Legal Adviser remarks at the Symposium in Honor of Edward R. Cummings on Lawyers and Wars


Lawyers and Wars:

A Symposium in Honor of Edward R. Cummings

The George Washington University Law School

September 30, 2005

Introductory Remarks

John B. Bellinger III

Legal Adviser, U.S Department of State

Thank you very much, Dean Lawrence, and not just for your kind introduction. I’m sure I speak for all of those here when I express my sincere appreciation for the support of The George Washington University Law School in hosting this important symposium. I am pleased to be participating in what promises to be an illuminating day of discussions concerning the role of law and lawyers in times of armed conflict.

Today we live in what Justice O’Connor, in the Hamdi case, called “this difficult time in Our Nation’s history . . .” The attacks of September 11 supplied a profound sense that we are dealing with a different kind of threat, a shadowy evil that breaks the traditional model of state‑to‑state conflict. The difficulty of this time in our history is, at its core, a matter of the security of our people, and to many the questions seem novel and strange. Yet it must be said that the questions are not new; many in this room have spent careers grappling in advance with the difficult questions posed by 9/11 and the conflicts it spawned. Fundamental questions, such as: When does terrorism amount to armed conflict? As an armed conflict, where does it fit within the traditional paradigms of the Geneva Conventions? In times of such armed conflict, how can the protection of civilians best be ensured? At what point does terrorism trigger a right to use force in self-defense, and against whom? And for us as professionals, what are our responsibilities to ensure that policymakers take action consistent with the law?

I look around and am humbled to be in the company of such committed public servants and thinkers who have attempted to answer and explain these issues over the past thirty years – and I would be excessively modest were I not to express some pride that so many have been affiliated with the Legal Adviser’s Office at the State Department, whether through direct employment, advisory capacity or by serving on delegations with us.

In these few minutes of introductory remarks, I wish not to speak merely to the contributions made by Ed Cummings since he entered public service over thirty years ago. Allow me a moment, however, to say a few words about Ed’s career that deserve saying. Ed bridges two worlds, that of the State and the Pentagon lawyer, because of his early service as an Army JAG lawyer prior to moving to the Office of the Legal Adviser at the State Department. Moreover, he remained in the JAG reserves through much of his career. In this sense, he personifies the close collaborative effort of the Pentagon and State Department over the years. He has held many positions at the State Department, serving as assistant legal adviser for three offices. He won two Presidential Rank awards in the Senior Executive Service, many Department honor awards, and recently was recognized by awards from the Department of Defense and the Canadian Judge Advocate General’s corps. Perhaps his service in positions involving political-military affairs made best use of his unique place in the bureaucracy, since he understood not only the international law but also the military requirements that influenced U.S. positions. His background and skills were essential in making his five years as legal adviser to the U.S. Mission to UN Organizations in Geneva an extraordinary success. Ed achieved a string of singular successes. To mention just some recent ones: As head of the United States delegation to the negotiations, Ed was the driving force in expanding the Convention on Conventional Weapons to cover non-international armed conflicts and in achieving adoption of a new protocol to that Convention on explosive remnants of war. I will come back to these.

But more than being an international lawyer of the first rank, Ed has committed himself over the years to the careers of his subordinates — who have never been subordinates, in his world, but friends and colleagues. The remarkable number of “Ed’s people” in important positions in government, academia and the private sector highlight the influence he has had in encouraging those he works with to reach their greatest potential. He was proud, for example, of negotiating with the Swiss an arrangement to obtain tax privileges for the support staff at the U.S. Mission.

For those who know Ed, they will agree that it is impossible to speak of his career without also mentioning his vocations — climbing, skiing, hiking and opera. And good dining. Ed has made a point of visiting 3-star restaurants; his whippets could surely boast of visiting more 3-stars than any other dogs in Europe!

A colleague recalled for me a story that is emblematic of Ed’s character and commitment. During the 2000 human rights commission, a six-week conference in Geneva every year, Ed took a break from the proceedings to do some ice climbing in the Alps. When he left, he told the delegation that he would be available by phone. One day, another delegation made an obscure point of order and so a member of the delegation called Ed, not knowing that he was hanging by a rope with his skis lashed to his back rappelling down some icy alpine cliff. Still, Ed answered and, polite as ever, allowed the caller to ask his question. When Ed realized that the question involved a "now-or-the-moment-would-be-lost-situation," he begged pardon and explained he just had to ease himself onto a cliff’s ledge so he could get out of the wind to explain what had to be done. He did and provided advice from several thousand meters. The intervention was made and the procedural point came out in our favor.

The symposium itself, the questions presented, your participation here speak volumes to the roles Ed has played in so many of our lives and careers. We are all deeply saddened by his illness, and this symposium provides his colleagues and friends an opportunity to honor him by advancing the discussion in the area of international law to which he is most devoted. In my remarks, I want to touch upon three areas in the law of armed conflict in which Ed has played a crucial role in advancing American values and humanitarian interests. In particular, I want to talk about the core mission of international humanitarian law and the central values Ed has advanced during his career — the protections available to the victims of war. I am ultimately asking whether law has advanced the basic humanitarian protections available to the victims of war, particularly over the past thirty years.

Let me first begin with a bit of a scene setter for the topic: America’s engagement with the international community on matters of humanitarian law. The United States’ historic commitment to international humanitarian law finds its origins in the founding code of the law of war, the Lieber Code drawn up during our own Civil War. Ever since, America and Americans have helped guide the development of this area of law. The United States ratified the 1864 Geneva Convention in 1882 and signed the Final Act of the First Hague Peace Conference in 1899. Beginning with the Hague Peace Conference of 1907, throughout the last century the United States was an active participant in the international legal regimes that comprise the law of armed conflict. Americans helped establish the Nuremberg War Crimes Tribunal in 1945, and we have remained steadfast supporters of the United Nations tribunals for the former Yugoslavia and Rwanda. Our relationship with the International Committee of the Red Cross has been steady, honest and fruitful over the course of decades, thanks in no small part to the efforts of people like Ed who see the ICRC as an important player in humanitarian protection. Our engagement in the Security Council has enabled the passage of a series of resolutions to remind states and non-state actors around the world of their obligations to take steps to protect civilians in armed conflict. I could go on, but I simply want to tie today’s symposium to the history of American engagement in international lawmaking and implementation.

That history has been particularly vivid during the thirty years that coincide with Ed’s career as a public servant and international lawyer. To my mind this is no coincidence, since Ed — in partnership with several others in this room — has been a leading figure negotiating on behalf of the United States and seeking solutions that work not only for the State Department and the Pentagon but for other states, their military personnel and civilians. It has also been a tough time for many in this field, as it coincides with what Christopher Greenwood has called “the high water mark of an approach to international negotiations which gave rhetoric pride of place over substance.”[1] It has been a time when politics has constantly sought to intrude upon humanitarian protection. I can think of no better example of this than the failure of the Red Cross/Red Crescent movement to find an appropriate way to bring in the Israeli society, the Magen David Adom. I am very pleased that the Government of Switzerland, as depositary of the Geneva Conventions, has put in motion the steps necessary for the adoption of a new symbol of the ICRC Movement that will enable the MDA and other societies to join as early as the end of this year. This is the kind of depoliticization of humanitarian law that I hope we can look forward to in the future.

Not long ago, I sat with the leading luminaries of international law in The Hague. Judge Buergenthal and President Meron were among the guests at the home of our Ambassador to The Netherlands, and we — together with lawyers, judges and diplomats — engaged in an honest and free exchange concerning armed conflict and law, lawyers and wars. I learned a lot on that evening about the way in which American actions are perceived abroad, particularly our commitment to international legal norms and institutions. I also found consensus around the table — though I hasten to add that I am not speaking for the group — that the legal questions at the heart of today’s conflicts, particularly the conflicts spawned by the terror of September 11, do not admit easy answers. Yet, as lawyers, we have a responsibility not to shrink from providing answers and advice; our clients, both policymaker and public, invest in us a weighty responsibility to advise as to what courses of action are consistent with the law.

Allow me to turn to the three aspects of the law of armed conflict about which I’d like to make some brief comment: the protection of civilians and others detained by a party to conflict; the problem of the illegitimate combatancy; and the expansion of the protections against conventional weapons deemed indiscriminate. These are, respectively, a conundrum, a blot and a success, and I’ll try to keep my comments brief.

First, let us consider the protection of persons held by a party to an international armed conflict. What I want to emphasize is the lamentable reality of legal gaps related to protected persons — the fact that, despite the widespread desire to see the Conventions as covering all persons in every given situation, there are lacunae that give rise to difficult legal questions. Beginning with civilians, the Fourth Geneva Convention of 1949 aimed to protect civilians in the situation where a civilian is in the hands of an enemy power. It focuses in particular on civilians in the hands of the enemy in occupied territory and in the territory of the enemy power, but it excludes nationals of neutrals or co-belligerents, those of non-Party states and those covered under the other Conventions. Pictet, in the Commentaries, takes the design of the Fourth Convention to mean that everyone is legally protected by the Convention somehow, although it is self-evident — from the exclusions — that this is not really so.

The same can be said of the Third Convention, which deals with the protection of prisoners of war. It is by now well known that Article 4 of the Third Convention provides us with definitive guidance as to who may legitimately expect to be provided with the status of prisoner of war, POW. Pictet referred to the requirement of falling into a specific category under Article 4 as one of the “essential conditions” of POW status. By its very definition, Article 4 excludes those not falling within its ambit. The Administration has obviously come under great pressure for this point, but I believe that in all of the protest one point has been missing. Namely, as Pictet says in a footnote to his introductory comments on Article 4, some persons may be outside the Convention but not the law of nations in general. He quotes generally from the Martens Clause from the 1907 Hague Convention IV, which says that “in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.” We have paraphrased this in the Bush Administration by recalling that all detainees will be afforded humane treatment regardless of status.

We understand that this solution has not been satisfactory to many, and we could have a very lengthy conversation as to why it appears the best solution still. What I want to say now is that we are well aware of the concerns that have been expressed and of positions that have been taken or suggested on this matter. These issues are extremely complex and we will continue to assess them as lawyers and recommend approaches to policymakers.

Now let me move on to my second area, the more general question of civilian protection against the kinds of fighters who take the mantle of the terrorist. This is an area that has stained the credibility of the law of armed conflict. Here it should be recognized that two factors have worked against civilian protection. The first and most important factor is the nature of the conflict violent extremists wage against us. This has nothing to do with law and everything to do with the inhumanity and brutality of this particular enemy. Its modus operandi — especially the suicide bomber — is perfidious, aiming not at military objectives but civilians as civilians. The goal is massacre, plain and simple, and they represent the greatest threat to civilian protection today. They are today’s hostes humani generis, the outlaw, the enemy of mankind.

More problematic from the lawyer’s perspective — or at least this lawyer’s perspective — is how law deals with the kind of situation where a would-be terrorist seeks to cloak his actions in the garb of legitimate combatant. This second factor working against civilian protection is fueled in part by Article 44 of Additional Protocol I, which suggests that combatants do not need to distinguish themselves from the civilian population except prior to and during an attack. To be fair, there is no doubt that a terrorist would not meet the combatancy definition of any instrument of international humanitarian law. But the very fact that Additional Protocol I allows greater flexibility in distinction undermines this fundamental protection. The principle of distinction, among the foundational principles of humanitarian law, exists for the purposes of civilian protection, to ensure that fighters can identify the combatant from the bystander. Article 44, pressed so strongly for largely political reasons in the 1970s, undermines it. And as a result, one has to lament that the process of negotiating international humanitarian law instruments has not always inured to the civilian population’s benefit.

Third and lastly I want to tout an area that has really been at the core of Ed’s mission in recent years and a central element of America’s law of war efforts since the late 1970s. Here I am talking about the protection of civilians against certain conventional weapons deemed to have indiscriminate effects. Since 1980 states working within the framework of the Convention on Conventional Weapons, or CCW, have quietly but firmly advanced the protection of civilians both during armed conflict and in its aftermath. Three particular areas come to mind immediately. First is the pathbreaking amendment to the second CCW protocol, restricting the use and abuse of anti-personnel landmines in both international and non-international armed conflict. On this score I nod in the direction of GW’s very own Professor Mike Matheson, who, as head of the U.S. delegation in the mid-1990s, bears a great share of the responsibility for the adoption of Amended Protocol II. The Amended Mines Protocol has attracted widespread adherence not only in recognition of the protections it affords civilians but because of the balance it reaches between military and humanitarian objectives. Second is the important amendment to the framework agreement itself that expands its coverage to non-international armed conflicts — thus furthering a long-held goal of the United States to ensure protections of civilians in all kinds of armed conflicts. Third is last year’s adoption of a protocol aimed at reducing the incidence of explosive remnants of war, or unexploded ordnance.

Unlike other international humanitarian law instruments, the CCW is dynamic, flexible and capable of adjusting to the interests of states and humanitarian goals. Ed’s stewardship of the U.S. delegation over the last several years has resulted in substantial gains for civilians, and it is my intention that the United States will continue to exercise leadership in the CCW.

Many in this room will have a story to tell about September 11 — the friends or family lost, the place where we heard first about the airplanes slamming into the Twin Towers, the Pentagon, a field in Pennsylvania, the evacuation order if you were in a federal building in Washington that day. I’d like to conclude my remarks this morning by recalling that Ed Cummings was at the Old Executive Office Building that morning, as he has been so many times in his career, preparing for an interagency meeting related to the CCW. Like many others that day, he got the word as he was entering the building that a plane was heading toward the White House, and the evacuation began with people jumping turnstiles and heading home. Within hours, however, Ed was working the phones, confirming that our Pentagon colleagues were safe and helping organize the Office of the Legal Adviser’s response to that horrific day. And ever since, just as ever before, he has turned his quick, sharp mind and deep experience to advancing America’s profound commitment to the rule of law. For Cicero’s famous phrase, silent enim leges inter arma — laws are silent in war — has no resonance for Ed. Law speaks whenever the Government acts, whether in armed conflict or peace. And we have Ed to thank for constantly reminding us of law’s power and purpose, even in these difficult times.

[1] Christopher Greenwood, A Critique of the Additional Protocols to the Geneva Conventions of 1949, in H. Durham and T. McCormack, eds., The Changing Face of Conflict and the Efficacy of International Humanitarian Law 3, 7 (1999).

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