Bellinger on Geneva Conventions and Terrorism

US State Department Legal Advisor John Bellinger has called on the international community to ‘clarify’ the contents and scope of application of the Geneva Conventions (International Herald Tribune). In an address to reporters at the ICRC annual meeting, Bellinger claimed that the Conventions apply to conflicts between states and thus do not offer guidance as to how long one can hold people in conflicts with non-state actors. The view does seem somewhat at odds with the position of the US Supreme Court expressed in the Hamdan decision that Common Article 3 of the Conventions – applying to ‘non-international armed conflicts’ – could apply to conflicts between states and non-state actors (although it’s not necessarily the case that this is correct or that the court was sufficiently rigorous in its application of IHL: see Fionnuala Ni Aolain’s insightful critique in the Minnesota Law Review).

More interesting, however, is Bellinger’s contention that “[t]he United States is firmly committed to the law that applies. We’re also committed to working with other countries around the world to develop new legal norms in cases where existing law does not give one the answers. But what we do think is problematic is to simply suggest that the Geneva Conventions provide all of the answers in fighting international terrorism, and that countries simply need to follow the Geneva Conventions and that is the end of the matter”. This appears to suggest that there is no law to govern detention of suspected terrorists, when in fact there clearly is: international human rights law.

Nobody suggests that the application of the Geneva Conventions is the end of the matter. The ICJ (in the Advisory Opinion on Nuclear Weapons) and many commentators have noted that international human rights law continues to apply in parallel with and through the prism of international humanitarian law. The United States, however, predominantly takes the position that IHRL does not apply in times of IHL-application. The root of the problem arguably lies not in deficiencies within the international legal code, but rather in the restricted view of applicable law on the part of the US authorities.