In my initial post on the White House statement regarding Article 75 of Additional Protocol I, I said I assumed that the statement means that the Administration intends to apply Article 75, as a matter of law, to the Al Qaida and Taliban detainees it currently holds, even though the Supreme Court concluded in Hamdan that the conflict with al Qaida is a non-international armed conflict.
I assumed this for several reasons. First, the statement is included in a Fact Sheet about Guantanamo Bay and the legal regime “for the handling of detainees there.” Second, if it does not apply to current al Qaida or Taliban detainees (or to future al Qaida or Taliban detainees captured in a non-international armed conflict), the statement is of limited significance in practice and would not appear to merit highlighting in a White House press release. Third, during the second term of the Bush Administration, the State Department had urged that the Administration announce that it would apply Article 75 as a legal obligation in both international and non-international armed conflicts, in order to clarify the international legal framework applicable to al Qaida and Taliban detainees. Fourth, I know the career lawyers and political appointees working on these issues in the Administration have been working hard to clarify the international rules the Administration is applying in the current conflict with al Qaida and the Taliban.
Although the Administration’s intent remains unclear, I now agree with Jack that it appears that the Administration does not intend to apply Article 75, as a matter of law, to the current al Qaida and Taliban detainees. As Jack suggests, the Administration may have decided that, because the provisions in Article 75 are virtually identical to the provisions in Articles 4-6 of Additional Protocol II, for which the Administration is seeking Senate approval, the Administration did not want to get out ahead of the Senate in a way that might jeopardize Senate approval of Additional Protocol II. I would have liked to have seen the Administration apply Article 75 to the al Qaida and Taliban detainees as a matter of law, so that they are being detained pursuant to an internationally recognized legal framework, but allowing the Senate the opportunity to consider the same provisions in Additional Protocol II may be politically prudent. Moreover, the Administration says 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.
I do think the Administration should promptly clarify if it does not intend to apply Article 75 to current al Qaida and Taliban detainees as a legally binding obligation. The ambiguity has confused both the Administration’s supporters and critics.
There also continues to be confusion about what the Administration means by the statement that it “will choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable….” As I noted in my initial post, it is clear to me that the Administration does not think that Article 75 is customary international law in either international or non-international armed conflicts. If the Administration thought that Article 75 has become customary international law, it would have said so, rather than using this unusual formulation. Administration lawyers (both career and political) are fully aware of the statements about the status of Article 75 in then Deputy Legal Adviser Mike Matheson’s 1987 article, in then Legal Adviser Will Taft’s 2003 article, and in Hamdan. Nonetheless, they have consciously chosen not to state that Article 75 is customary international law. And to be clear: I am not questioning the merits of the principles in Article 75. The U.S. has long supported these fundamental guarantees, and I had urged the Bush Administration to announce its support for them. My point is only that the Obama Administration has not, despite a two-year review and the presence of numerous international lawyers in the Administration, concluded that Article 75 is customary international law.
Finally, it is worth recalling what the Reagan Administration said about Additional Protocols I and II. In his January 29, 1987 message to the Senate, President Reagan called on the Senate to “act promptly to give advice and consent” to Additional Protocol II (which, as noted above, contains provisions virtually identical to Article 75). Secretary of State Shultz said in his letter of submittal to the President that “the obligations contained in Protocol II are no more than a restatement of the rules of conduct with which U.S. military forces would almost certainly comply as a matter of national policy, constitutional and legal protections, and common decency.” President Reagan also said that, although Additional Protocol I was “fundamentally and irreconcilably flawed,” nevertheless it contains certain “sound” and “meritorious” elements. The President did not specifically identify Article 75 as one of these elements, but Mike Matheson’s subsequent article, which had been cleared by other departments, stated that the U.S. Government believed that the “fundamental guarantees” in Article 75 were among the principles that “should be observed and in due course recognized as customary law.” Even more significant, President Reagan stated in his Senate message that the Administration was “in the process of consulting with our allies to develop appropriate methods for incorporating these positive provisions [of Additional Protocol I] into the rules that govern our military operations, and as customary international law.” Although the results of the Reagan Administration’s consultations with its allies are unclear, what is clear is that the Reagan Administration supported application of the principles of Article 75, in both international and non-international armed conflicts.