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Gabor Rona on Article 75 and Additional Protocols I and II

Robert Chesney covers on Lawfare Blog, in a post available here, Gabor Rona's remarks related to the Administration’s announcement relating to Additional Protocol II and Article 75 and Additional Protocol I. Rona's comments appear in full below, along with a brief response from Chesney as to one of his arguments:

A) Three points on AP I, Art. 75

1) There’s less than meets the eye in the Administration’s announcement that it will now apply Article 75 (“fundamental guarantees”) of the First Additional Protocol to the Geneva Conventions, despite that the U.S. is not a party to the treaty; 

2) I don’t share John Bellinger’s assumptions on what the announcement means about the Administration’s understanding of the legal framework for the armed conflict in Afghanistan and against al Qaida; and

3) This all leads to informed speculation that the Administration knows that Military Commissions do not comply with Art. 75, or for that matter, with Common Article 3 of the Geneva Conventions.

I’ll start with point 2. John notes that AP I applies:

“only to individuals detained “in an international armed conflict.” The Supreme Court in Hamdan, by contrast, concluded that the U.S. conflict with al Qaida is a “non-international armed conflict.” Accordingly, it is not clear whether the Administration disagrees with the Supreme Court’s characterization of the conflict or whether it actually intends not to apply Article 75 to current al Qaida and Taliban detainees. If the Administration does not, in fact, plan to apply Article 75 to current Al Qaida and Taliban detainees (or to other non-state actors captured in non-international armed conflicts), then the White House’s announcement, while still laudable, is considerably less significant than it first appears.  My assumption is that the Administration does plan to apply Article 75 to al Qaida and the Taliban and that it does not agree with (or overlooked) the Supreme Court’s conclusion that the conflict is a non-international armed conflict.”

True that AP I applies only to international armed conflict, meaning between high-contracting parties to the Geneva Conventions, i.e., States. True that Al Qaida and the Taliban are not, and do not represent, States. Therefore, true that this (or these) armed conflict(s) are not “international,” and that they are, therefore, ”non-international.” (All armed conflict is either international or non-international).

But it does not follow that this calls into question the administration’s view on the Supreme Court’s correct determination in Hamdan that the conflict(s) is/are, indeed, non-international.

This leads back to point 1:

John’s assumption “that the Administration does plan to apply Art. 75 to al Qaida and the Taliban” is consistent with his assumption that the administration also takes issue with the qualification of conflict in Hamdan. But there’s nothing in its pronouncements, or even between the lines, to suggest that the Administration disputes the notion that the Hamdan context is Common Article 3 or believes that the conflict(s) with al Qaida or the Taliban is/are international. Nor is there any evidence that the Administration does intend to apply Art. 75 to present circumstances. There is, however, evidence to the contrary (see point 3, below). More likely, the Administration is merely repeating a long-implied U.S. understanding that AP I, Art. 75 is applicable, either as a matter of policy, or as a matter of customary international law, in international armed conflict. This is nice, but nothing revolutionary. The weight of international legal opinion and State practice conceded the customary nature of Art. 75 a long time ago.

John disagrees. He says:

“It is also important to note that (contrary to the views of four present or past justices of the Supreme Court) the Administration has not concluded that Article 75 already constitutes “customary international law.” This would have required the Administration to determine that almost all the states in the world accept Article 75 as a legally binding obligation, which would have been difficult to do.”

Why would it be difficult? 

  • To begin with, 168 states have ratified AP I, and some might say that that already includes “almost all the states of the world” (86%, to be precise). 
  • The United States never cited Article 75 as one of the provisions of AP I to which it objects, or as part of its reason for not joining AP I – see Abraham D. Sofaer, The Position of the United States on Certain Law of War Agreements, 2 Am. U. J. Intl. L. & Poly. 60 (1988).
  • Furthermore, Mike Matheson’s 1988 article asserted that Article 75(4) was one of those that the US accepts – see Mike Matheson, Additional Protocol I as Expressions of Customary International Law, 2 Am. U. J. Intl. L. & Poly. 419, 428 n. 39 and TAN 39. Sofaer, too, affirms “that certain provisions of Protocol I represent customary international law.”  Id. at 471. I realize that subsequent commentators have dismissed the Matheson article as unauthoritative, but Matheson was the Reagan Administration’s deputy legal adviser, and he purported to be speaking for the administration. One of those subsequent commentators, Hays Parks, was himself the organizer of a small DOD law of war working group that also acknowledged in a May 8, 1986 memo that Art. 75 was customary international law. 
  • Given that international law only exempts “persistent objectors” from customary international law, and that the U.S. cannot be a persistent objector to something that it previously accepted as CIL, this horse is long out of the barn.

Here’s what the Administration should have, but didn’t (and under present circumstances, couldn’t) do. It didn’t declare that AP I, Art. 75 is customary law applicable to ALL armed conflicts. It should have because it’s the right thing to do. (In other words, what part of Art. 75′s recitation of humane treatment obligations and judicial guarantees does the administration think should not be respected in armed conflicts involving non-State actors?)

In fact, there is strong evidence that Art. 75 is customary law in all armed conflict. (See ICRC’s Customary International Humanitarian Law study. See also the laundry list of non-international armed conflict war crimes in the Rome Statute, which the drafters adopted with the understanding that they constitute extant reflections of customary international humanitarian law. See also the jurisprudence of the ICJ, the ICTY, the ICTR and the pronouncements of international human rights treaty bodies on the applicability of human rights instruments in armed conflict, which instruments detail humane treatment and judicial guarantees parallel to those of Art. 75.)

For the full text of Rona's comments and Chesney's response, link here

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