Letter from William H. Taft, State Department Legal Adviser, to Jakob Kellnberger International Committee for the Red Cross re: International Committee for the Red Cross Legal Staff Op-Ed in the Financial Times

This letter is from William H. Taft, IV of the State Department to Jakob Kellnberger, President of the International Committee for the Red Cross (ICRC) concerning an Opinion Editorial a member of the ICRC's legal staff wrote for the Financial Times (of London). The Op-Ed was critical of the U.S. policies in prosecuting individuals involved in international terrorism, the U.S. detention of those individuals and the assertion that the detainees have a right to challenge their detention under international law. Mr. Taft states that there is "no such entitlement in the 1949 Geneva Conventions. However, the implication in the article is that the Geneva Conventions do provide such entitlement" and this assertion has the "effect of misleading the public" as to the rights of the detainees. He insists that “There are several other erroneous and inappropriate statements in the article” and that “Your legal staff certainly knows...[that] military courts may exercise jurisdiction over civilians who are unprivileged belligerents or security detainees as well as military personnel; this is consistent with the express terms of both the Third and Fourth Geneva Conventions.” The letter concludes with “we value the serious dialogue we have always had with you and your representatives on the implementation of the Geneva Conventions and the detentions in Guantanamo generally.”

Doc_type: 
Letter
Doc_date: 
Tuesday, March 16, 2004
Doc_rel_date: 
Monday, November 22, 2004
Doc_text: 

UNCLASSIFIED
THE LEGAL ADVISER

aLt

RELEASED IN FULL
DEPARTMENT OF STATE
WASHINGTON
March 16, 2004

VIA FACSIMILE 41-22-733-2057
The Honorable
Jakob Kellenberger
President
International Committee of the Red Cross
19, Avenue de la Paix
1202 Geneva
Switzerland

Dear Mr. Kellenberger,

On March 1, The Financial Times published an op-ed by
a member of your legal staff criticizing U.S. views
regarding the law of armed conflict and terrorism. I must
take exception to several assertions made in this piece, in
particular the author's attribution of views to the United
States that he knows very well it does not hold.

After referring to my article, the author claims that
the United States is suggesting that a war paradigm applies
to "everyone and everything considered terrorist."
That is not the view of the U.S. Government. Your staff
goes on to state that if the U.S. considers a person to be
an enemy, it "would be within its right to shoot him" on
the streets of the U.S. This is also not our view. It is
highly objectionable for your staff to give the impression
that it is.

Your staff states categorically that detainees are
entitled to an individualized procedure to challenge the
basis of their detention. No citation or support is
provided for this assertion. There is, in fact, no such
entitlement in the 1949 Geneva Conventions. However, the
implication in the article is that the Geneva Conventions
do provide such entitlement. This again has the unfortunate
effect of misleading the public.

Your staff also refers to prisoners taken in places
such as Zambia but "beyond any connection with armed
conflict," implying that it is the View of the United

UNITEDSTATESDEPARTMENTOF'STATE UNCLASSIFIED
REVIEW AUTHORITY: FRANK E SCHMELZER

DATE/CASE ID: 10 SEP 2004 200303827
DOS-000118

UNCLASSIFIED
- 2 -
States that the laws of armed conflict apply to prisoners

taken outside an armed conflict. Again, this is not our

view and it is misleading to suggest that it is. We are in

armed conflict with al Qaida and the laws of armed conflict

govern in that conflict.

There are several other erroneous and inappropriate
statements in the article. The author asks how the U.S.
can justify using military commissions to try detainees,
since they are not POWs. Your legal staff certainly knows
the answer perfectly well: military courts may exercise
jurisdiction over civilians who are unprivileged
belligerents or security detainees as well as military
personnel; this is consistent with the express terms of
both the Third and Fourth Geneva Conventions.

As you know, we value the serious dialogue we have
always had with you and your representatives on the
implementation of the Geneva Conventions and the detentions
in Guantanamo generally. It is thus especially
disappointing to see the publication of such a misleading
and confrontational article. The credibility of the ICRC is
vital for it to perform its humanitarian functions.
Misleading or erroneous statements of the kind repeatedly
made in the article can only seriously undermine its
credibility, however, and diminish its ability to carry out
its important work.

Sincerely,

William H. Taft, IV

UNCLASSIFIED
DOS-000119

UNCLASSIFIED
3

Drafted: L/ACV - ERCummings
Doc. # 116645

Cleared:
L/PM - JADolan -ok
S/wCI -RWMiller - ok
NSC/Legal - JBellinger - ok
DOJ/OLC - JGoldsmith - ok
DOJ/Crim - Prowan - ok
DoD/OGC - Khecker - ok

UNCLASSIFIED

DOS-000120

Doc_nid: 
6909
Doc_type_num: 
69