What appears to be one of the most significant changes in U.S. detention policy announced by the White House yesterday was not included in the new Executive Order but, rather, was buried at the very end of the accompanying Fact Sheet. As noted in Bobby Chesney’s post, the Administration announces that it is clarifying the international legal framework applicable to detention in two ways. First, the White House urges the Senate to approve Additional Protocol II to the Geneva Conventions, which has languished before the Senate since 1987, when President Reagan first transmitted it and urged its rapid approval. More significant, the Administration states that while it continues to have serious concerns about Additional Protocol I, it nevertheless plans to apply Article 75 of Additional Protocol I, which sets forth certain minimum protections for individuals detained in international armed conflicts who do not qualify for more favorable treatment as Prisoners of War under the Third Convention or as Protected Persons under the Fourth Convention.
Just how dramatic a change this is remains unclear. The Administration states that it will apply Article 75 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.
Either way, both of these announcements are important assertions of U.S. leadership in international humanitarian law, although they are years late in coming. During the second term of the Bush Administration, State Department lawyers and Matt Waxman at the Defense Department urged that if Al Qaeda and Taliban detainees were not covered by the Third and Fourth Geneva Conventions, then the Administration should announce that it would at least apply the minimum protections of Common Article 3 of the Geneva Conventions and Article 75 of Additional Protocol I. Others in the Administration opposed this approach. In Hamdan, the Supreme Court held that Common Article 3 of the Geneva Conventions applied to the U.S. conflict with Al Qaeda, and four members of the Court concluded that Article 75 constitutes customary international law. During the transition, I recommended to the incoming Administration that it clarify the international legal framework by announcing support for Article 75. The new Administration then embarked on a 25-month study of the issue. Last August, on the 61st anniversary of the Geneva Conventions, I wrote this op-ed on ForeignPolicy.com’s Shadow Government blog, noting that the Obama Administration was not actually applying the Third or Fourth Geneva Conventions as a legal framework to Al Qaeda and Taliban detainees in any way differently from the Bush Administration.
I urged the Administration to announce that it accepts Article 75 as legally binding and to push the Senate to approve Additional Protocol II. The State and Defense Departments were reportedly prepared to make these announcements last fall, but the White House apparently did not want to announce any new “rights” for terrorists before the election.
Among the other reasons for the long delay is that the Administration needed to ensure that military commission trials complied with the requirements of Article 75, which requires, among other things, that any detained person be prosecuted only before a “regularly constituted court respecting the generally recognized principles of regular judicial procedure,” including the right to examine witnesses against him.
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. Instead, the Administration has announced that it will “choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual detained in an international armed conflict, and expects all other nations to adhere to these principles as well.” In other words, the Administration is saying (appropriately, in my view) that it will lead by example by attempting to create customary international law through state practice.
Finally, with respect to Additional Protocol II, ironically one of the Reagan Administration’s concerns about the treaty was that it applies by its terms only to non-international armed conflicts with non-state groups where the non-state group controls some of the territory of a state. The Reagan Administration concluded that this limitation was too narrow because many conflicts, even in the 1980s, involved conflicts between a state and a group that did not control territory. Accordingly, the Reagan Administration recommended that the Senate include an understanding that the U.S. would apply Additional Protocol II in all non-international armed conflicts. Had the Senate acted on Additional Protocol II, as President Reagan had requested, it would have given the Bush and Obama Administrations a more robust international legal framework to apply in the conflict with Al Qaeda and the Taliban. The Obama Administration is right to push for Senate approval of this forgotten treaty.