Gabor Rona on Article 75 and Additional Protocols I and II

Gabor Rona (Human Rights First) joins the conversation sparked by the Administration's announcement relating to Additional Protocol II and Article 75 and Additional Protocol I.  His comments appear in full below, along with a brief response from me 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.) And finally, point 3: So why could the administration announce application of Art. 75 in international, but not non-international armed conflict? Easy. The U.S. is not presently involved in any international armed conflict and so, there is no question of non-compliance, with the possible exception of Taliban members detained from the time the Taliban controlled Afghanistan – a category that I don’t know to exist. But one simple reason they couldn't go the extra mile, even though they should have, is that the U.S. is out of compliance with Art. 75 in its non-international armed conflict with the Taliban and Al Qaida. And I think they know it. One of the important judicial guarantees in Art. 75 is the prohibition against ex post facto prosecution. The administration has made no secret of its discomfort with Military Commission crimes created after 9/11 that are being applied to pre-9/11 conduct. Another bit of evidence that Military Commissions cannot be squared with Art. 75 is reflected in the fallout from a parallel provision of the Geneva Conventions: Common Article 3's judicial guarantee provision. Recall that before the military commissions, we had a War Crimes Act. That law criminalized violations of Common Article 3. Then a funny thing happened to the War Crimes Act in the very same legislation that created the post-9/11 military commissions. The MCA re-wrote the War Crimes Act to remove violation of the judicial guarantees provision of Common Article 3. Why? Perhaps because the drafters knew that the military commissions don’t pass the smell test under Common Article 3. And there’s no reason to believe that the fragrance is better under AP I, Art. 75. B) Observations on AP II John notes that the Administration has also seen fit to renew its interest in Senate advice and consent to AP II. This is excellent news. It would be even more excellent if it came with the understanding, suggested by John, that the application of AP II provisions will extend to ALL non-international armed conflict – in other words, beyond to de jure borders of that treaty, which is generally understood to apply only to non-international armed conflicts in which rebel groups control territory. (AP II actually says that the non-State armed group must “exercise such control over a part of [a High Contracting Party’s] territory [so] as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” Common Article 3, by contrast, has no such limitation.) But if the U.S. does attach an understanding to its AP II ratification that it will apply the treaty to all non-international armed conflict, then it will be out of compliance with that understanding as long as military commissions in their present form continue to grind out cases. This is because like Art. 75 of AP I, AP II also contains a judicial guarantees section, including the standard prohibition against ex post facto prosecution.  C) No Recommendation for Action on AP I Acceptance of Art. 75 aside, the Administration notably does not express the same enthusiasm for AP I as it does for AP II. The historic U.S. reticence to become party to AP I is largely a reaction to that treaty’s declaration that armed conflicts against colonial and racist regimes will be considered international armed conflict. This is a relic of the politics of the 1970s, when the APs were drafted. It has little practical significance. Contrary to fears of the U.S., the designation does not mandate recognition of a privilege of belligerency or entitlement to PoW status upon capture of non-State fighters. However, the ease with which critics of the treaty have, albeit inaccurately, tarred and feathered it as “giving rights to terrorists” surely means that no political capital will be expended on its ratification. D) Conclusion In short, the floor is rising toward the ceiling. Given the degree to which the customary law of non-international armed conflict has caught up with the customary law of international armed conflict, there is now little principled basis for States Party to the Geneva Conventions to balk at full-throated support for either AP I or AP II. The hitch for the U.S. appears to be the assumption that there are people who do not deserve the standard menu of judicial guarantees. That is both wrong as a matter of law and bad as a matter of policy.

[Bobby again:] I'll limit my response to Part C) of Gabor's post, which contends that the "historic U.S. reticence to become party to AP I is largely a reaction to that treaty’s declaration that armed conflicts against colonial and racist regimes will be considered international armed conflict. This is a relic of the politics of the 1970s, when the APs were drafted. It has little practical significance."  I do not agree with that description; for a contrary perspective, I refer readers to Mike Newton's excellent article on this topic.