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Rice To American Society of International Law


Centennial Annual Meeting of the American Society of International Law


Secretary Condoleezza Rice
Fairmont Hotel
Washington, DC
March 29, 2006

(4:40 p.m. EST)

MR. CARTER: 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 Eiffel, who is the moderator and managing editor of Washington Week and senior correspondent for The Newshour 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.

Secretary Rice, we're particularly pleased to welcome you back for a repeat performance. Last year you were kind enough to renew the tradition of a dialogue between international lawyers and the U.S. Secretary of State. At that time I presented you with a presidential mug listing my distinguished predecessors, including the three presidents of the society who served simultaneously in that office and also as Secretary of State. Those were Elihu Root, Charles Evans Hughes and Cordell Hull.

That list was in a sense a condensed history of the ASIL's first hundred years, but today I can top that. I'd like to present you now with a copy of our just-published Centennial History authored by President Frederic L. Kirgis, which tells the whole story. I hope it will form a part of your State Department library.

SECRETARY RICE: Thank you.

(Applause.)

MR. CARTER: And I now turn the program over to Gwen Eiffel.

(Applause.)

MS. EIFFEL: Thank you. Thank you, Jim. Secretary Rice was just telling me that she leaves here probably within -- at the moment she leaves here she's getting on a plane and flying transatlantic, so now she has a little casual reading. She was taking her People magazine and now she has her 100th anniversary. (Laughter.) So thank you. There will be a quiz.

When I was first invited here today, I was a little overwhelmed. Sometimes I get to play a lawyer on television but, in fact, I'm not very good at it and you could all see right through me. Then I realized this would be right down my alley because, if nothing else, the headlines almost always trump everything when you're about to lead a conversation that features the Secretary of State. And I have the fortune of addressing an audience which cares about current events and wants some candid answers today to some complicated questions, among them: How we wage war and prosecute war crimes; what to do when the rules of interrogation, torture and surveillance change; how to strike a balance between civil liberties and civil rights; and whether foreign law can, should and does affect the application of our own U.S. law.

Now, that's a lot to cover in one hour so I'm going to start the conversation right away by sharing some of the questions that I've come up with, and after I have exhausted my questions -- and perhaps before that -- I will then turn to some of the questions that you have filled out on the little yellow cards that you were given with your registration that I have judiciously read, but only just before I walked in here this afternoon. So they'll be a surprise to everyone.

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 -- they 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. Fairly broad language.

So, Secretary Rice, the first question goes to you. Would you endorse these resolutions?

SECRETARY RICE: All right. Well, let's see. Here's the microphone. Well, first, Gwen, if you will permit me just to thank the members of the American Society of International Law for having us here. 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. (Laughter.) 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. They 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. (Applause.)

And I'm glad to join Gwen Eiffel 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 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 who, 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 convention nor really could ever be party to the convention.

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 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-Qaida 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 consistent with the provisions of the Geneva Convention, 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 Geneva 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.

MS. EIFFEL: My reporting tells me that you've been having quite a complex debate about that very issue. 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 that we never gave a trial and civil courts to people captured in the war. We captured a lot of Germans during World War II that 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? (Laughter.)

JUSTICE O'CONNOR: 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 had 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 to 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.

MS. EIFFEL: 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. (Laughter.)

Judge Higgins.

JUDGE HIGGINS: 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 one of the 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 the Geneva four in the occupied territories -- our court said it was a de jure requirement -- 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 remain 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.

MS. EIFFEL: Professor Alvarez, you were privy to some of the debate among this membership today. Your response?

PROFESSOR ALVAREZ: Well, I think our members are concerned, or at least many of them are, especially the sponsors of these resolutions, because it's not enough to condemn torture in the abstract and part of the problem is that we have created some confusion around the world about what we consider to be torture or cruel and inhuman treatment, so that when our own Attorney General refuses to rule in or out water boarding, mock execution -- which is really what we're talking about with water boarding -- people are confused about that.

What it's also important to pick up on what Judge Higgins was saying that the torture convention, the part that we have not reserved on, clearly also says you're not supposed to send anyone to a place where they might be tortured. It also says that we're supposed to affirm command responsibility, have clear instructions on the field about what is permissible and what isn't. There's a whole range of provisions that I think the world is confused about whether we are enforcing.

And let me say that I have a nephew that is serving in Iraq and I am concerned, if the assertion that we're making is that a few rotten apples -- and he's a private -- are doing these things, and I'm concerned and I think some members are concerned, if he's not getting the proper clearance, he is not getting the proper instructions and command responsibility stops here and doesn't go all the way to the top, I would like him to be able to come back from Iraq having served nobly, just like the greatest generation, and to hold his head up high. It is also why I think a lot of our military JAG lawyers are concerned about these very issues.

And with respect to the statement of the military commissions, we have a huge debate in this society about the legality of military commissions. But even putting that aside, the Secretary mentioned Common Article 3 of Geneva, which says that everybody -- combatants, noncombatants and including this new category of unlawful combatants -- is supposed to be treated with the common standards of humanity. From my understanding from those people who have been looking at those commissions now, even the few people that are coming through -- and keep in mind that many people are not seeing these commissions at all and we are just holding them indefinitely without trial or without any commission -- we have not ruled out use of evidence obtained by torture. It's an uneven playing field with respect to the defense attorneys who can't even share a lot of the information that they have, even unclassified information, just official secret information.

So that those are the issues that I think drove many people to support these resolutions.

MS. EIFFEL: We have a lot of questions to get to so I promise that will be our one time where we go all the way around the panel, but I thought was important --

SECRETARY RICE: Gwen? Gwen, may I say something?

MS. EIFFEL: And you may respond, Madame Secretary. (Laughter.)

SECRETARY RICE: Because I need to respond to just a couple of points.

First of all, as to confusion around the world, I think the President -- and I went to Europe on the heels of a lot of issues that were arising in the press at the particular time about detention and rendition and so forth. I was in Europe that very week. And as I talked to my colleagues more and more about it, I think they did begin to understand the dilemmas.

But there are a couple things on which there are not dilemmas. The United States is going to live up to its obligations under the Convention Against Torture. The President has been very clear about that. The United States is going to live up to its own laws which relate to those issues. About that there is no confusion.

The United States has been clear that in that the people who are in Guantanamo have a right to have been reviewed, to be reviewed on a regular basis. We don't want to be the world's jailer. Why would the United States want to do this? But I would ask: What are we to do with people who were picked up on the battlefield in Afghanistan, some of whom regularly say that if they are released they will go out and kill more people? What are we to do with them? What are we to do with people who clearly are related to those or have helped or financed or facilitated the killing of innocents? What are we to do with them?

And the United States has a case before the Supreme Court about the military commissions so I'll not speak further about that. But the military commissions were designed, and the design overseen by a panel of distinguished people who were brought in to look at them from the outside, in order to try to balance the requirements of protecting information that might still be relevant to stopping the next terrorist attack and trying to give people a process that was defensible in terms of due process.

So if there is confusion, I want to be just very clear that I don't think there should be confusion on those issues.

Finally, as to what our soldiers are asked to do, I do think they're serving honorably and I think when they return they will be able to say that they're honorably. And with all due respect, it usually is a few people who are involved in the Abu Ghraibs, for instance, which was a horrible, disgusting and, for me, sickening set of events.

But the great majority of American men and women serve not just honorably but compassionately. And when we have the debates about people who have to deal with detainees, we also need to remember that many of these are the same people who are simply putting their lives on the line for innocent Iraqis, innocent Afghans, and so on. So I would hope there wouldn't be any confusion on those points.

MS. EIFFEL: The latest Confidence in Foreign Policy Index released just today by a group called Public Agenda in cooperation with Foreign Affairs Magazine, found these figures: Only 36 percent of Americans believe the United States can help other countries become democracies; 58 percent say democracy is something that countries only come to on their own when they're ready for it; 20 percent said actively creating democracies very important, only 20 percent; and 30 percent said it's not very or not at all important.

Why this lukewarm public support for what the President today in his remarks called "the advance of freedom, the story of our time"?

SECRETARY RICE: Well, Gwen, I would be very interested to know what those figures would have looked like had you asked people were we going to be able to help facilitate a democratic Japan or a democratic Germany. I would have been interesting to see -- interested to see what those figures would have looked like in the 1940s when people said black Americans weren't ready for democracy. What would those numbers have looked like at that time?

So I think it reflects that it's hard, it's actually very hard, to facilitate -- and by the way, one place I would agree is that it has to happen by people on the ground. It can't be brought from the outside. It has to have an indigenous character to the search for democracy. But I think we're seeing across the world that that indigenous character is there. We saw it when 11 million Iraqis went out and voted despite terrorist threats to kill them. We saw it when 8.5 million -- sorry, 10 million Afghans went out to vote though much of the country is still illiterate. We saw it just this past week in Belarus where despite a dictatorship, the worst dictatorship in Europe, despite police presence, despite arrests, people still went out and voted for the opposition. So we see that there are, in fact, indigenous groups for this democracy. I've always said that you don't have to impose democracy; you have to impose tyranny.

And there's one line in there that troubles me in particular: "When they are ready for it." What does that mean? What people on earth are not ready to be able to have a say in those who will govern them? What people on earth are not ready to be able to worship freely? What people on earth are not ready to be able to educate their boys and girls?

MS. EIFFEL: Let me follow up and then ask Judge Higgins to respond. When does involvement, U.S. involvement in trying to spread democracy, become interference? Say involvement is defined as what happened with -- in Liberia in which Charles Taylor today was captured and returned to be tried and justice is going to reign and Ellen Johnson-Sirleaf is going to save the day and the U.S. is on the right side, compared to what we read in the newspaper today that the United States has advised Iraqi leaders that in fact they think that maybe al-Jafari wouldn't be such a great prime minister? When is -- is that interference and is the other involvement? What is the line?

SECRETARY RICE: I, first of all, wouldn't believe everything I read in a newspaper, Gwen. (Laughter.)

MS. EIFFEL: She just said -- her mike wasn't working. She said she doesn't believe everything she reads in a newspaper, and I find that hard to believe. (Laughter.)

SECRETARY RICE: On Iraq, we've been very clear that this is a choice the Iraqis are going to have to make. All that we are doing is in a system in which people of different groups -- Sunni, Shia, Kurds -- have not been accustomed to coming together to resolve their differences peacefully, we've been trying to act as an active facilitator in that process. That's what Zal Khalilzad does.

The United States can often create the -- help to create the circumstances under which people can then take the opportunity to build democracy. We can't build the democracy. That has to be the people on the ground. But we can certainly help to create circumstances in which that's possible.

You mentioned Liberia. It was inconceivable four or so years ago when Charles Taylor was rampaging in the country and when little boys were on the front pages of the New York Times with AK-47s that you were going to be able to have democracy in Liberia. So the United States intervened in that conflict along with the ECOWAS, the African regional -- West African regional organization, and stopped the violence, put in place through the United Nations a process by which then the new president of Liberia was elected. So that's how the United States facilitated in that case.

So I think of it as helping to create the conditions in which people can then take the opportunity to build democracy, not trying to impose it.

MS. EIFFEL: Did the U.S. Ambassador make the suggestion or not?

SECRETARY RICE: Gwen, I've been very clear that the United States -- the position of the United States is that they need to form a unity government and they need to do it now, they need to do it with strong leadership that can in fact get the necessary votes to become prime minister. We have to remember that in this system it's like any coalition government; the UIA, the Shia alliance, did not win enough votes to form a government and so what we're trying to help all of the Iraqis do is to come to some coalition that can then be a government. And so it will be up to the Iraqis to decide who the prime minister is.

MS. EIFFEL: Okay. Just for the record, that wasn't strictly an answer to the question.

SECRETARY RICE: I said, Gwen, it will be up to the Iraqis who the prime minister is.

MS. EIFFEL: Judge Higgins.

JUDGE HIGGINS: I think that the first point to make here is that I thoroughly agree there are no peoples who are "not yet ready for democracy." I've been in the human rights field long enough to know that this is simply a human condition that we all want to be governed by those who we feel we've had a say in choosing. And I think we have indeed seen around the world the huge enthusiasm for the chance to vote a government in and of course then in due course to vote a government out.

Naturally, democracy is more than having periodic votes. It's also getting those voted in to understand they have to take care of minorities and it's also getting minorities to understand that the majority must on a certain range of issues be allowed to have its day provided that overall some good distribution of powers and checks and balances are in play. That is extremely hard to achieve.

It seems to be well accepted now that you're not violating any norm of international law in lending assistance to people to achieve democracy provided, of course, you are not engaging in the use of force against a government to do so. And I think this is now a growing perception and it comes with all of its faults, with all of its setbacks, with all of its difficulties, and one has to be extremely careful not to use the phrase "working for democracy," "doing this for democracy," also to do other sorts of quite clearly unlawful things.

MS. EIFFEL: You just said as long as we don't use force to force democracy. Are there exceptions to that rule, say in the case of trying to remove a terrorist, a so-called or described terrorist, from office?

JUDGE HIGGINS: At the moment there seem to be great difficulties in law in an individual state taking that task upon itself. Firstly, there is the question of who does that assessment. That is always a difficult issue. Secondly, under the UN Charter, the membership of the UN is predicated upon states being democracies. So there is no entitlement of one member of the United Nations to use force to dislodge another government that is regarded as a terrorist government. There are a variety of other mechanisms through the United Nations, through consultations and arrangements with allies, through working with opposition, that are the preferred route for it.

MS. EIFFEL: Since, Secretary Rice, that is in essence what the United States did in Iraq?

SECRETARY RICE: The United States went to war against Iraq with a number of other states because Iraq had been deemed a threat to international peace and security. Let's be very clear about the grounds for war against Iraq. It was actually not to bring democracy to Iraq. The Chapter 7 resolutions which had been passed against Iraq since 1991 had constituted Iraq a threat to international peace and security. That was the basis on which we went to war.

Now, having gone to war and deposed Saddam Hussein, you do have a question to ask: What obligation do you have to try to leave a particular kind of government or the conditions for a particular kind of government? And here I would relate this to what we did in World War II. We did not go to war against Germany to create a democratic Germany. We went to war against Germany to stop Adolf Hitler. But once Adolf Hitler was defeated, the United States was really the only of the major powers that believed that the answer to a permanently peaceful Germany was a democratic Germany. And so I think that's the difference, Gwen.

MS. EIFFEL: The reverse version of this question in a way, and I'm going to direct it again to you, Secretary Rice, and ask Justice O'Connor to respond, which is that there is some debate in legal circles about the degree to which it is important to learn something from other democracies; that is, to use foreign law as a precedent or as something to support laws that we indeed make ourselves. Where do you come down on that, Secretary Rice?

SECRETARY RICE: Well, it is -- obviously the United States doesn't exist in a vacuum and I understand I'm not a lawyer, but I understand there may be times when questions of foreign law apply. But in general, it is my understanding that the United States looks to its own laws as the principal source in interpreting its Constitution.

MS. EIFFEL: Justice O'Connor.

JUSTICE O'CONNOR: This is a frequently discussed subject of late and I cannot think of an instance when the United States Supreme Court has cited a foreign judgment as binding authority for any interpretation of our Constitution. That hasn't happened. But a number of the Justices on our court have referred to judgments of other nations or the Court of Human Rights or something of that sort, by way of illustration of how other courts have perceived or handled certain problems, just as judges will sometimes cite a law review article or a textbook writer or some other source of interesting comparative information.

And there have been objections raised by some members of our Congress to even that modest citation of authority. That's a little difficult to understand because if it's not being used for any binding authority, but by way of example, it's not uncommon to look to other sources for ideas or thoughts. So I think that's where we are in this country.

MS. EIFFEL: Professor Alvarez, can I ask you to follow on to that?

PROFESSOR ALVAREZ: Yes. I think that the debate is a little misleading in that we use foreign law, or at least that's how Congress puts its, but we use, say, international law, which is the subject of our society, in different ways for different purposes. With respect to a domestic statute, we have the Charming Betsy presumption, which is a canon of interpretation that basically says you presume that what Congress did is consistent with international law and you try to interpret the law to be consistent with international law.

Now, with respect to using international law for purposes of constitutional interpretation, that's where some of the controversy lies. I agree with Justice O'Connor that I do not see -- I mean, the Supreme Court wrote or any of the recent cases a reliance by the court on international law to interpret a provision of the U.S. Constitution. For that reason, I totally agree with her that these moves in Congress that would suggest that you should impeach a judge for using foreign law are deeply, deeply misguided especially because I think they don't even understand necessarily the difference between foreign law and international law.

MS. EIFFEL: And I apologize for even using the term myself.

Justice O'Connor.

JUSTICE O'CONNOR: Gwen,this is important. There is a difference between foreign law and international law. From the earliest days of our country, the Supreme Court has said international law is part of our law and the Law of the Open Seas and other international legal principles are very much a part of our law. And of course, we cite them and refer to them. Foreign law is typically the term used to apply to a judgment of another nation in a case that is not a principle of international law, but a judgment from anther court based on their own law. And I think it is really the use -- the citation -- of foreign law judgments that's being objected to by some.

MS. EIFFEL: I have one more question, then I want to get to a few from the membership here. And this is on a subject near and dear to your heart, Secretary Rice, which is Russia. In recent weeks, months, it seems that they have been on the wrong side of the U.S. definition of the rule of law in Belarus, in Iran, in the way that they treat their own nongovernmental organizations. The President said today in a speech at Freedom House, he said, "I haven't given up on Russia." What does he mean by that? (Laughter.)

SECRETARY RICE: It's never wise to interpret the President's speeches, Gwen.

MS. EIFFEL: I'm counting on you. (Laughter.)

SECRETARY RICE: First of all, let me just say on Iran it's my understanding we've just reached agreement on a presidential statement. And we've had some differences of tactics in the United Nations Security Council. We've had some differences of tactics with Russia, but I think on the principle about the Iranian nuclear program that there should not be an Iranian nuclear weapon and that that means Iran cannot have access to certain kinds of technology on its territory, I think we're in agreement. So I would take Iran to the side of that list. Clearly, we have had our differences, though.

In terms of how democracy is moving in Russia and this transition in this great and complicated place, that there does seem to be a centralization of power and authority in the executive branch in the Kremlin. And what we've said to the Russians is that it's generally understood that if you have too much concentration of power in the executive, without countervailing authorities and power in either a legislature that is truly independent or a judiciary that is truly independent, then you are setting up the conditions for authoritarianism. It is not to say that Russia today is necessarily in that situation. But I think one thing that the Founding Fathers in the United States understood was that separation of powers was a guarantee against whoever might hold the executive power of the presidency because it could, in fact, overreach and then you would have countervailing. So that's been the debate.

We're not giving up on Russia because, look, there was a hope at one point that the March of Russia toward completely democratic institutions where you had the proper separation of authority between the executive and other branches, where freedom of the press reigned supreme, where there were no questions about the ability of nongovernmental organizations, that that march would be smooth and direct, and that after 1991 and the fall of the Soviet Union I think there was great hope that that was going to take place.

There have been some -- there's been some in that direction. This is not the Soviet Union and I want to underscore this is not the Soviet Union. But there have been reversals, too, like the nongovernmental organization law, like concerns about freedom of the press.

But I would ask anyone: Are we going to be better off with a policy toward Russia that somehow tries to isolate Russia from the very international institutions in which the values of human rights and democracy are enshrined? Is that going to produce a more democratic Russia? I've heard people say Russia shouldn't be in the G-8. I've heard people say Russia should not -- we shouldn't have a NATO-Russia council. But I don't see any policy that isolates Russia from those institutions that is, in fact, going to make Russia more democratic. And so I think that's really what the President is referring to. We've had disappointments. We've had setbacks. But you have to stay on a road that continues to press for Russia to move toward the norms of democratic development.

MS. EIFFEL: Would any other member of the panel like to respond before we move on to the next questions?

PROFESSOR ALVAREZ: I would just like to say I'm delighted to hear the Secretary praise a system of checks and balances and unreviewable authority because at least some members of this society have been quite concerned about that much closer to home. (Laughter.)

SECRETARY RICE: That's why we've got the system. (Applause.)

MS. EIFFEL: Okay. There's always an inside joke, isn't there? (Laughter.) This question -- and everyone who submitted questions very boldly signed their names, so I'm going to share them. Ralph Wild (ph), who is with the University College in London.

On it's centenary, the ASIL is a global society with many of its members, like me, from outside the United States. My country, the UK, supported your interventions in Afghanistan and Iraq despite the fact that it sometimes takes a different view on the meaning of international law and is subject to a broader set of obligations relating to intervention and occupation. For example, a prohibition on the death penalty. How do you address diplomatically the challenges of collaborating with allies when such differences exist?

SECRETARY RICE: That's a very good question. Now, first of all, we do it as allies and as friends and from a common set of values, which means that you are rarely in disagreement about what the goal is. You may, in fact, have some disagreement about various tactics on the way.

But I think that with Great Britain in particular, we have a common enough set of values and a common enough understanding of what needs to be done in Afghanistan and Iraq to stabilize these young democracies that I really think we've had relatively few disagreements even at the tactical level.

When it comes to something like the death penalty, we recognize that the European Union does not recognize or favor the death penalty. We recognize that this is an issue in many countries around the world. The United States is a democracy, just as are the democracies of the European Union, and our democracy feels differently about that particular issue.

Now, when you come then to what should a young state like Afghanistan or a young state like Iraq do, I think what you have to do is you have to press for a system of laws, rule of law, a judicial system, a justice system that is free and fair, a set of norms by which people are going to be dealt with if they are accused of crimes. It was one reason that the events around Mr. Rahman were, in fact, troubling and why the international community, I think, reacted the way that it did, because it ran up against the Universal Declaration of Human Rights and against all of our belief in religious freedom.

But I would think that we and our allies around the world would not try to impose on a young democracy an answer, for instance, to the question about the death penalty, but to let that emerge out of their society just as it has emerged out of our societies differently in Europe and in the United States.

MS. EIFFEL: Justice O'Connor, would you like to comment on that?

JUSTICE O'CONNOR: Well, most countries, if you count noses around the world, have eliminated the death penalty and our country has not. Certainly, the framers of the Constitution did not speak to outlaw it and it is left largely to each state in the United States to decide whether it wants to have a death penalty. And some states, perhaps about a fourth of them, have decided not to. And perhaps in the future we'll see other states address it and take a different view than they have.

MS. EIFFEL: Another question, and I will ask Judge Higgins to respond after the Secretary. You have spoken about the years after September 11, 2001 -- this is from Troy Prince (ph), also from Bradford University in the UK, a PhD student.

You've spoken about the years after September 11th as being analogous to the years 1945 to 1947, with the United States needing to influence the structure and character of the international order before the international system hardens again. International acquiescence to U.S. dominance was key to institution building after World War II, but seems to be lacking now. Do you think current U.S. efforts to influence the global order will be less lasting as a result?

SECRETARY RICE: That's a very good question. But I actually would challenge the premise of -- what's the name? Troy?

MS. EIFFEL: Uh -- (Laughter.)

SECRETARY RICE: Troy, is it?

MS. EIFFEL: Troy -- Troy. Right.

SECRETARY RICE: Troy, I would actually question the premise of it here. I think that when we look in retrospect at what happened after World War II, it all looks very orderly and like the United States was simply able to work its will on the international community and that's the way it all came out.

But I was lucky enough to be the White House Soviet specialist from 1989 to 1991 when Eastern Europe was being liberated, Germany was unified, the Soviet Union was collapsing peacefully. And it was a very heady time if you were in the White House at that time, particularly if you had my responsibilities. And I got to participate in the unification of Germany and the liberation of Eastern Europe and I started thinking back on the fact that actually all we were doing was harvesting good decisions that have been taken in 1946 and 1947 and 1948. And if you go back to that period, if you were Acheson or Truman or Marshall, it probably didn't look so inevitable or so permanent that these changes would go in that direction.

I would just recount a list. In 1946, there were huge communist votes in both Italy and France, to the point that it alarmed the United States, part of the reason for the beginnings of thinking about something like the Marshall Plan. And in 1947, of course, the European reconstruction was still failing. In 1947, you had a civil war in Greece and civil conflict in Turkey. In 1948, you had the Czechoslovak coup against a semi-democratic -- a democratic government in Czechoslovakia. In 1948, Germany was permanently divided by the Berlin events. In 1949, the Soviet Union exploded a nuclear weapon five years ahead of schedule and the Chinese Communists won.

Now, I would submit to you that if you're sitting in Washington in 1947 or 1948 or 1949, it looks like the world's fighting back pretty good because these are not actually small tactical setbacks for democratic development, but they are huge strategic setbacks. But what those people did, in conjunction with people in Germany and Britain and other places that held the same values, was to stay focused on the importance of an alliance of states that shared those values. So they created NATO which was a collective security organization that was avowedly a collective security organization of democracies. They created a little earlier the Bretton Woods institutions, the great economic institutions. And they went on then to enshrine those principles in the part of Europe that was free and over time to use those principles as a draw to the people in the parts of Europe that were not free. And in 1989 and in 1990 and 1991, they finally succeeded in creating the Europe whole and free that they had hoped to have in 1946 or 1947.

So I would suggest that when we think about the period that we're in now, we not think about this as the outcome but rather as this as the beginning of what is a very turbulent time when we are dealing with a region that has indeed not had democratic values, but for 60 years everybody ignored the need for democracy, and that we ask the question not what does this look like tomorrow or for tomorrow's headlines, but what will it look like in a number of years. When I think back on that period of the '40s, I don't think it looked like it was going to come out like it did in '89 or '90.

MS. EIFFEL: Judge Higgins.

JUDGE HIGGINS: It seems to me that the situation between these two eras is not analogous and not only for the reasons that Secretary Rice has given. In the first place, I think there is a profound divergence of views between nations and within nations about the nature of the current threat we are now seeing. Some countries perceive it as being a major threat but not of the all-embracing magnitude with everything that follows, as does the United States.

In my own country, there's a train of thought that says we lived through absolutely dire things for years with the IRA, we got used to having explosions and innocent people killed almost week in and week out and we dealt with it within -- with small exceptions within the confines of the existing law, making some small derogations to those and happily seems as if we've come out the other side. Others say no, that analogy is not correct, this is a problem of a different order, and obviously Prime Minister Blair sees it that way.

Another reason, I think, is that today we have something that we didn't have in the late '40s, which is, for good or ill, part of Europe regarding itself as being a counterweight to the United States. And again, there are divided views among Europeans as to whether that is or is not a desirable perception. But again, it certainly indicates a resistance that was not previously there to a major leadership role.

A third factor I'd mention is in the years that have followed we've had a series of global human rights treaties to which the United States has mostly come on board relatively recently and often with major qualifications and reservations. And I think that has made a lot of the natural allies a little hesitant in perceiving the clear leadership in the human rights field that was undoubtedly seen in the previous generation.

MS. EIFFEL: We don't have a lot of time left, but I have a couple more good questions here. I'm hoping that we can get through a couple.

Now that Charles Taylor has been apprehended and extradited to the Special Court for Sierra Leone, is the United States prepared to: (1) lend more resources to the court so that it will be able to accomplish its mission; and (2) support a similar tribunal for Liberia? This is from Professor J. Peter Tham (ph) of James Madison University.

SECRETARY RICE: I'm sorry. A similar tribunal for Liberia?

MS. EIFFEL: A similar tribunal for Liberia.

SECRETARY RICE: I'm not quite certain of the meaning of that, but let me speak to the Charles Taylor case. Charles Taylor is in Sierra Leone, as the President noted a little while ago in his speech where I guess he answered a question. We are looking at potentially using The Hague as a place to seat Sierra Leone -- the Sierra Leone court because people are concerned about the stability of the region if the trial takes place there.

I would note, picking up on something that Judge Higgins said, the United States does sometimes have reservations to treaties. I think it's mostly because we are really pretty bluntly honest when we really do have a reservation. And I think that's the way the world would like us to be. We had reservations to the ICC and therefore would not join it. We don't like the idea of an unaccountable prosecutor.

But even though we've sometimes opposed even something like the ICC, we've tried to find ways to be cooperative when necessary, so that when it was necessary to have a resolution in the UN to deal with Sudan, we made clear that as long as our own citizens were not under the jurisdiction of the ICC, we would be prepared to cooperate because we've always stood on the side of bringing perpetrators of injustice to justice. And we've done it with Charles Taylor. I think you would say we're trying to do it with Sudan.

But I want to say just one other thing. I don't think that you do want the United States to simply sign on to treaties with which it does not agree. It wouldn't work in our system were we to do that. I was explaining to my colleagues in Europe that while it is sometimes thought that our war on terror and the way that we are waging it is to give the United States greater scope than international treaties would. When we talk about our Constitution, there are certain aspects of our constitution that actually will narrow what we can do.

I cannot imagine the United States pursuing some of the incitement laws that are being pursued in Europe. We have too powerful a view of freedom of speech in this country to pursue some of the incitement laws that are being pursued in Europe. And so it's not always the case that the United States is pushing the envelope to the outside more than the Europeans.

I think we have to be very honest when we have reservations. We also have a federal system and there are times when we need to preserve the federal character of our system and not interfere with the powers and rights that are reserved to the state by our Constitution which, of course, in our case, tends to be a hefty volume. And so yes, we've had some reservations, but I don't think that it is because the United States is not a firm, in fact principled and in fact fierce, defender of human rights. It's because we have to be honest when we think that the treaties don't actually achieve that goal.

MS. EIFFEL: Judge Higgins, your response?

JUDGE HIGGINS: I think it is very important to try and avoid, if it's at all possible, the impression in international relations that one is keen on human rights and other people being made accountable but not opening oneself up to scrutiny. (Applause.) And most of the great allies of the United States have found these treaties quite livable with and put up with the periodic investigations on their behavior under them. And of course in my country it's absolutely routine to be told by the Strasburg Court you've got it wrong, that was not lawful, kindly change something, and it's no big deal. We do so. The culture is profoundly different.

SECRETARY RICE: Well, that's the point, though. The culture is profoundly different. The United States is a very different entity. With all due respect, we broke from Europe. So the United States is different. (Applause.)

And the United States, of course, has a very, very free press so it's not as if human rights issues in the United States and American behavior and behavior of the government is not very often up to scrutiny. We also do have a separation of powers, which was mentioned. That means that there is congressional scrutiny of what is done, there is legislative scrutiny through the judicial branch at all levels of the United States. So it's not as if the United States can somehow hide in a corner what we are doing. But we have a very different culture, we have a very different history, and I think that has to be respected. I would never say to Europe don't pursue incitement laws because we think that that would be a problem for freedom of speech. You have a different tradition. And so we have to recognize that countries with different traditions are going to view these things differently and I don't think that it is the purpose of international law or of international relations to simply agree for the sake of comity.

MS. EIFFEL: We are almost out of time but I want to give Justice O'Connor and Professor Alvarez a brief chance to respond to that. First Justice O'Connor, unless you prefer just not to get in the middle of it. (Laughter.)

JUSTICE O'CONNOR: No, I don't think I have a contribution.

MS. EIFFEL: Okay.

PROFESSOR ALVAREZ: Look, I think I totally agree, actually, with Secretary Rice that the U.S. is totally free not to sign on to treaties. I mean, that's what treaties are all about. And I actually applaud the United States for closely scrutinizing which treaties it can ratify.

But in terms of this issue, what I see, I hope, is a somewhat softening position of the United States with relation to international criminal justice. I think the fact that we abstained on the Security Council reference on Darfur to the International Criminal Court, our own pressure, apparently that helped bring about Charles Taylor, suggesting that we're starting to see that at least in Africa it's very much in our interest to end impunity whether through hybrid courts or the International Criminal Court.

So that while it's perfectly fine for the United States to stay away from the International Criminal Court, what gives many of our members pause is when we go further and try to interfere in other states which do adhere to this. And we've done so in various ways through rather expansive Article 98 agreements that go far beyond our status of forces agreements and say no U.S. citizen at any time, even if they commit genocide in your territory, can ever be brought before the court, and are very heavy sticks that we use to convince those who adhere to this to stay away from the court. And I think that goes a bit too far. I think we can stay away from and it will take years, decades, I'm convinced, before we will see it in our national interest, but I suspect someday it may be. But I think we should respect other states that have decided to adhere to this court; and after all, it was not unusual for our nationals to commit these horrible crimes abroad to be able to be brought before those national courts and it is not, to me or to many members, I think, very different if those U.S. nationals who may commit genocide or crimes against humanity in some other state's territory that happens to be a party to the court are brought before that body.

MS. EIFFEL: I only regret we don't have time to get to the very other many good questions we have here, but I want you to join me in thanking the panel: Jose Alvarez, Rosalyn Higgins, Sandra Day O'Connor, Condoleezza Rice. Thank you.

(Applause.) 2006/325

Released on March 30, 2006

ENDS


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