The panel was convened at 4:30 p.m., Wednesday, March 29, by ASIL President James H. Carter. Conversationalists included Retired Justice Sandra Day O'Connor of the U.S. Supreme Court; Judge Rosalyn Higgins of the International Court of Justice; and ASIL President-Elect Jose E. Alvarez. Gwen Ifill, Managing Editor of "Washington Week" and Senior Correspondent for "The NewsHour with Jim Lehrer" served as moderator.
Welcome to the opening session of the American Society of international Law's 100th Annual Meeting, which will consider our centennial theme "A Just World Under Law." You're part of an historic occasion. This is the largest attendance ever at one of our annual meetings. Our program begins with, "A Conversation with Secretary of State Condoleezza Rice." The moderator for this program will be Gwen Ifill, who is the moderator and managing editor of Washington Week and senior correspondent for The News Hour with Jim Lehrer. The other participants will be no strangers to you: Justice Sandra Day O'Connor, Judge Rosalyn Higgins and ASIL President-Elect Jose Alvarez.
I want to start with some of the questions that you have been debating among yourselves here today, among them resolutions which you will be voting on tomorrow, which in general--and someone can correct me if I "capsulize" it too much--state that the United States should apply the Geneva Conventions that forbid torture, cruel, inhumane, or degrading treatment of any person in the custody or control of the United States of America. So, Secretary Rice, the first question goes to you. Would you endorse these resolutions?
Thank you for having me back, Jim. This is my second annual appearance. I've only been Secretary long enough to make two annual appearances, so that should tell you something. And indeed, if I keep coming even though I'm not a lawyer, maybe you'll make me an honorary one. Elihu Root I think actually came by it honestly, being a lawyer.
I'm obviously very, very honored to share the podium with this distinguished group. Jose and Judge Higgins and of course my good friend Sandra Day O'Connor, who I think served with the greatest distinction as a justice of the Supreme Court, did our country a tremendous honor and tremendous service, and we will miss you. And I'm glad to join Gwen Ifill on stage, not just on camera again.
As to the question, the United States has been very clear about our views of the Geneva Conventions. It's a very important set of agreements and arrangements that have indeed disciplined and codified the laws of war for many, many years and of which the United States was one of the principal supporters.
It is our very strong view that we are in a new kind of conflict, a new kind of war in which the Conventions do not easily apply and in which, in fact, we have to be careful not to stretch the Geneva Conventions to cover people who should, in fact, not be covered by them. And so terrorists, of course, do not fight according to the laws of war. And I don't mean just not wearing uniforms. I don't mean just not carrying weapons openly. I mean where the entire purpose is the wanton killing of innocents. I think that we have to be very careful about stretching the Geneva Conventions to cover people who are neither party to the Conventions nor really could ever be party to the Conventions.
When you think about the challenge that we face today, it really is that the terrorists don't kill innocents as collateral damage. They kill innocents as the target of their activities. This is true, for instance, when a Palestinian wedding party is attacked in Jordan or when the Twin Towers are attacked in New York or a subway stop is attacked in London. And so we have to recognize that we're in a different kind of war.
Now, the president made the determination at the outset of this war that even though we were obviously at war with the Taliban--an odd collection--that combatants on behalf of the state of Afghanistan would be treated under the Geneva Conventions, but when it came to Al Qaeda that they should not be afforded those protections because it would subvert and pervert in a sense the Conventions themselves. Nonetheless, the president made very clear to everyone that the United States would treat those people consistently with the provisions of the Geneva Conventions, taking into account military necessity. He was very clear that the United States would not condone torture, that the United States would live up to its international obligations and that the United States would, of course, not violate its own laws. We believe that this provided the appropriate protections to those who were being detained without stretching the meaning of the Geneva Conventions to the point that the Conventions would essentially mean nothing in this new kind of war.
Now, I would be the first to say, and I've been saying this to my colleagues in Europe: this is a good topic for debate in an open society. And one of the great things about an organization like this is I know that you debate the issues, you talk about the issues, you care about the issues, and I would encourage you to debate and care about the issues but to do it in a way that recognizes that this is a different era with a different kind of enemy, that we have to take account of the circumstances in which we find ourselves, that we have to take account of the responsibility of governments to protect their people and especially to protect innocent people, and that we have to take account of the fact that, unlike law enforcement, you cannot wait for a terrorist to commit his crime--because 3,000 people are dead if you wait for the terrorist to commit the crime.
I would just ask you to think about the dilemma then that governments face in fighting the war on terrorism. I would ask you to think about the dilemmas that a country like the United States faces given our tremendous respect for and indeed sponsorship of international law throughout our history. Think about the dilemmas that the new kind of war actually poses and I think you may come to more complex answers than you might if you only think about the Geneva Conventions.
I want to follow to Justice O'Connor by reading to you a quote: "We are in a war. We're capturing these people on the battlefield. We never gave a trial and civil courts to people captured in war. We captured a lot of Germans during World War II. They were brought not to Gitmo but to the soil of the United States. We didn't give them a trial." This was Justice Scalia speaking three weeks ago at a school in Switzerland, where he also said and was famously reported as having said "I'm not about to give this man who is captured in a war a full jury trial. I mean, it's crazy." Your response?
Well, I haven't heard anybody argue that a jury trial is required, so I don't think that requires a response.
I think the Secretary is probably correct, although we have not had occasion to resolve it in any court to my knowledge, that the Geneva Conventions do not technically apply to the terrorists being held. I think as I understand it our Administration has said that nevertheless they intend to treat prisoners so held within the framework of the Geneva Conventions.
Probably it would be a good idea for those concerned about the issue to go back to the drawing board and see if any changes are needed to those conventions which were drawn, after all, at a time when we were facing world wars, national armies versus other national armies or armed forces, and in a different time. And so I think that it merits discussion and consideration of whether some amendments are needed to it, to tell you the truth.
Don't think I didn't notice how you sidestepped that question about Justice Scalia, but I'll let you get away with it because of my great respect for you.
I've heard several important issues rolled up together in what the Secretary has said. If we start with torture, in a sense it doesn't matter whether we're talking about the Geneva Conventions or not. That is absolutely prohibited, and I know the United States has acknowledged that. So that is simply out even were it not an element within the Geneva Conventions.
Then you come to a variety of other specifics. The first point I'd make is I do believe it's quite clear that having the benefit of the Geneva Conventions has never depended upon the actor himself or itself complying with those rules, going beyond, as the Secretary put it, harming others through collateral damage but quite deliberately harming innocents. That has never been a ground and was deliberately never meant to be a ground for the Geneva Conventions not applying. That allows one not first of all to have to decide who is behaving correctly in order for them to be applicable and that is in the common good.
It does remain an area where some of the provisions sit very awkwardly with non-state actors and with actors who even if states are not parties. We've seen that in the past with Israel, which has accepted de facto that it would need to apply Geneva Four in the occupied territories--our Court said it was a de jure requirement--to the Palestinians themselves who are not a party, and we've seen various other circumstances of that sort. There are areas that need tightening up and improving on, but the core provisions are intact, and we also have to remember that human rights, the other side of this coin, don't go out of the window in time of war either. And if you don't have in place the specific provisions of every clause of the Geneva Conventions, that doesn't mean to say that human rights will not be applicable.
Professor Alvarez, you were privy to some of the debate among this membership today. Your response?
Well, I think our members are concerned, or at least many of them are, especially the sponsors of these...