Eighteenth Waldemar A. Solf Lecture in International Law

• Author: William H. Taft, Iv
• Pages: 06

EIGHTEENTH WALDEMAR A. SOLF LECTURE IN INTERNATIONAL LAW†

WILLIAM H. TAFT, IV*

Let me begin by thanking the Army's Judge Advocate General's Legal Center and School for inviting me to deliver this year's Waldemar

1. Solf Lecture in International Law. Colonel (COL) Solf was a distinguished lawyer and Soldier. He fought in World War II as a young man and served in increasingly important positions during his long career as a judge advocate. He became a legend in the practice of military justice. Later in life, COL Solf played an important role in the negotiation and analysis of the Additional Protocols to the 1949 Geneva Conventions1-a subject that I have considered repeatedly in my role as

legal adviser to the Secretary of State over the last four years and which I would like to consider again with you this morning. It is a privilege to speak at this lecture series that honors this remarkable man of many accomplishments. *

The United States has long promoted the rule of law both in the domestic affairs of states and in their relations with each other. The rule of law is a fundamental aspect of our own democracy. We rely on international law to advance our foreign policy interests. We appeal to it as a source of authority. We develop it to advance U.S. interests. We employ it as a means to secure a peaceful world and to establish and

protect the rights of U.S. citizens and companies. We use it as a standard to which we hold other countries, and it is a measure by which other countries judge our actions. Through international law, we have achieved important objectives in nearly every area-trade, investment, security, environment, human rights, technology, health, law enforcement, and so forth. In short, international law is indispensable to the successful conduct of our foreign and security policy.

It is important here to recall the United States' historic role in the development and expansion of international law. For nearly a century, the United States has led the world in the promotion of international law and has been the key player in negotiating treaties and setting up international institutions to resolve disputes. During this period, the United States has seen a huge increase in the quantity and complexity of its international engagements, and the United States and other countries have had to develop more international law to carry out these new engagements. More countries have accepted international law as a set of rules that must be followed or according to which their actions must be justified. Even the most powerful countries offer international legal justifications for their actions to obtain greater legitimacy. Certainly, the United States does this.

Overall, the growth of international law and its influence over the past century has been a very positive development, and the United States and the world have benefited enormously from increased international cooperation. We have seen increased economic and social welfare for millions of people throughout the world. Several significant and terrible diseases have been wiped out entirely and considerable progress is being made in the fight against other diseases, notably AIDS. Important portions of the global environment have been protected. Millions of suffering people have received humanitarian assistance during armed conflicts and natural catastrophes, including recently on an unprecedented scale in response to the devastation following the massive earthquake in the Indian Ocean. Potentially bloody conflicts have been prevented from escalating into major wars, and most nations now are parties to treaties that commit them to provide to their people a broad range of widely accepted human rights.2 Many of the treaties and

conventions brought about by the United Nations (UN) and other regional and international organizations as well as numerous multilateral treaties in technical, economic, and scientific areas have been critical in making all this happen.

Although the United States has been the principal advocate, as well as a strong supporter, politically and financially, of the modern international legal system and its key institutions as they developed over the last century, recently our credibility as an advocate of the rule of law has not gone unquestioned. Our reputation for compliance with our international obligations-and hence our ability to pressure other states to carry out their obligations-has been diminished as a result.

Strengthening our reputation as a country that abides by the rule of law would help us achieve our foreign policy and security objectives by encouraging other countries to cooperate with us and by allowing us more effectively to use legal principles to influence other countries' behavior. We need to enhance both our reputation and authority in this regard.

As lawyers on the front lines of our foreign and security policy, you regularly provide legal advice to military leaders regarding treaties, international conventions, and rules of engagement, and you observe and report on trials of U.S. personnel in foreign countries to ensure that their due process rights are respected. You know, I dare say, from your experience that our respect for the rule of law is important not only as an academic matter but also in practice.

There are many areas where emphasizing respect for rule of law as a central element of our foreign and security policy, while simultaneously taking steps to assure that our own conduct is consistent with our international obligations, will help us achieve our objectives. I would like to focus this morning on three different places where this issue is in play in different ways: (1) the treatment of detainees in the global war terrorists are currently fighting against us; (2) the situation in Iraq; and,

(3) our attitude towards the International Criminal Court (ICC).

Treatment of Detainees in the Global War on Terror

The Bush administration's detainee policy and associated legal positions in the global war on terrorism remain a focus of international criticism. They complicate our diplomatic as well as our military efforts to achieve our foreign policy and national security objectives, and in particular instances have isolated us from friends and allies who could provide us with more help in fighting the terrorists. In the last three years we have offered a number of explanations for our treatment of detainees. Our arguments have not been frivolous, but most states have rejected, among other things, our position that the...