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