Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
In the esoteric discussion about whether and how Article 75 of Protocol I, a treaty about international armed conflict (IAC), applies in the Non-International Armed Conflict (NIAC) with al Qaeda and The Taliban, the ambiguities in the administration’s Fact Sheet are piling up. Here I will try to sort out the ambiguities. At the end I explain how they can all be clarified, consistent with the Administration’s probable aims, in a single sentence. There are at least four issues. First, did the administration announce that it would (or wanted to) comply with Article 75 in a NIAC as a matter of customary international law? Early commentators thought the answer was “yes,” but it now seems clear that the answer is “no.” On this question, John, Gabor, and I agree, for what that is worth. Second, should Article 75, properly understood, govern in the current NIAC as a matter of customary international law? John and Gabor think it should. I have my doubts whether state practice supports this conclusion. And the Administration apparently has doubts about the conclusion as well. Third, regardless of whether Article 75 is or should be custom in a NIAC, is the administration acting consistent with the terms of Article 75 in the current NIAC, especially in its currently constituted military commissions? This is what Cully Stimson and Kevin Jon Heller are arguing about, in the context of Article 75(4)(g). Nothing of legal significance turns on this dispute unless Article 75 governs in a NIAC as a matter of custom. Fourth, what has the administration said on this third question? John claims that it has said “that its current policies and practices are already consistent with the provisions of Article 75, and this presumably includes its policies and practices with respect to current al Qaida and Taliban detainees.” John may be right (see below), but once again, the Fact Sheet is unclear. In its paragraph about its submission of Protocol II to the Senate, the administration said: “An extensive interagency review concluded that United States military practice is already consistent with the [Protocol II’s] provisions.” Because many of the provisions of Article 75 are replicated in Protocol II, one might take this statement to imply that the administration has concluded that it is acting consistent with Article 75 in the NIAC. Unfortunately, one provision from Article 75 that does not appear in Protocol II is the one in dispute between Stimson and Heller – Article 75(4)(g). Thus, consistency with Protocol II does not entail consistency with Article 75. The administration goes on to say the following, in its paragraph about Article 75 of Protocol I: “Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported.” Since the paragraph is about IAC, not NIAC, a natural interpretation of this sentence is that the administration’s “policies and practice” in IAC, not NIAC, are consistent with Article 75. However, since the United States is not currently in an IAC, perhaps the term “practice” here was meant to sweep in practices in the current NIAC as well. That would be an unusual and very indirect way for the administration to announce that its NIAC practices are consistent with Article 75. Despite the ambiguity just noted, I suspect – based on what John has said, and conversations with others – that the Administration has in fact concluded that its current practices in the NIAC are consistent with Article 75. Certainly nothing in the NIAC is obviously inconsistent with Article 75 (I think Kevin is right about Article 75(4(g)). But if this is right, why doesn’t the Administration just say so? This simple sentence could clear up all the confusion generated by the Fact Sheet: “The Administration has not concluded that Article 75 applies as customary international law in the NIAC with al Qaeda and The Taliban, but it has examined its practices in this NIAC and has concluded that they are consistent with Article 75.” The Administration could further add, if it wanted, that it commits the United States to complying with Article 75 in the NIAC as a matter of policy.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
The issues—and Lawfare coverage—that kept our editors up at night in 2023.
The U.S. government has begun invoking quarantine authority, so now is probably a good time for a review of the legal architectures that both authorize and constrain the quarantine power.
The French foreign minister has made a trip to Iraq to attempt to make a deal to try foreign fighters in the country. The plan faces diplomatic obstacles abroad and opposition at home.