There has been much confusion in recent days about this statement in the Administration’s Fact Sheet on Guantanamo and Detainee Policy: “The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.” (My emphasis.) Bobby, first out of the box, interpreted it to mean that the administration had embraced John Bellinger’s suggestion that it should extend Article 75 of Protocol I – which confers minimal humane protections on persons detained in an international armed conflict – to al Qaeda, Taliban, and other detainees at GTMO and Afghanistan, as a matter of customary international law. This is the way many commentators, including Senator Kyl in a speech very critical of the administration, interpreted the statement.
When John Bellinger weighed in a few days ago, he noted that the matter was not so clear:
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.
I think the standard interpretation of the Fact Sheet, as well as John’s assumption that the administration plans to apply Article 75 to al Qaida and the Taliban, is wrong. (In an email, John says he now thinks his assumption is wrong as well.) I believe the Administration meant what it said: It chooses “out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable” in an international armed conflict (IAC), but not in a non-international armed conflict (NIAC) such as the one being waged against al Qaida and the Taliban. I think this for two reasons. First, the Fact Sheet was carefully worded and doubtlessly much-vetted in the inter-agency process. The smart lawyers in the government who drafted it are well aware of the distinction between IAC and NIAC. Second, the administration submitted Protocol II – which governs NIAC – to the Senate for its consent. Many of the provisions of Protocol II mirror the protections of Article 75 of Protocol I and simply conform them to the context of a NIAC. It would be very strange – almost unthinkable, in fact – for the administration to submit a treaty on NIAC for consent to the Senate, the core of which it just unilaterally declared it would follow in a NIAC as a matter of customary international law.
The bottom line, I think, is that the war against al Qaeda and the Taliban, and all legal authorities asserted in that war (including detention and military commissions), continue to be governed by Common Article 3 of the 1949 Geneva Conventions. More elaborate international law protections for al Qaida and Taliban detainees will come only if the Senate consents to Protocol II. It was confusing and misleading for the administration to discuss the issue of Article 75 as custom in an IAC in a Fact Sheet on GTMO that otherwise concerned a NIAC. The effect of this confusion has already been to rouse conservatives (like Senator Kyl) who worry about creeping internationalism. It will be interesting to see how the administration's critics from the left react when they realize that it recognized no new international law rights for terrorists.
A final point. John notes: “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.” I think John is right, for two reasons. First, as John says, it is possible that even in an IAC, “the Administration has not concluded that Article 75 already constitutes ‘customary international law,’” but rather “is saying (appropriately, in my view) that it will lead by example by attempting to create customary international law through state practice.” Second, 170 nations have ratified Protocol I (including its Article 75), and DOD doctrine for IAC almost certainly confirms to the Article 75 standard.