Wall Street Journal Mistaken About the Obama Administration and Protocol I?

(Update: Pleased to see that the Journal has appended the following correction to the online edition:)

An earlier version of this story mistakenly reported that the Obama Administration is sending Additional Protocol 1 for Senate ratification. It is treating Article 75 of Protocol 1 as legally binding, though it has not been ratified by the Senate.

(Update 2:  John Bellinger, who knows this matter better than anyone (possibly excepting Matt Waxman), has a must-read post on the Obama administration’s international law framework in the “fact sheet” at Lawfare.  Among other things, he points out (and I stand corrected in my post below) that the administration has not claimed that Article 75 is actually customary international law:

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.

In addition, he comments on the question of whether the administration will apply Article 75 to non-international armed conflicts and non-state actors such as Al Qaeda:

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.

(Update 3.  International law scholar Marko Milanovic, writing at the EJILTalk blog, offers a very useful discussion of John Bellinger’s post, above, running both to the status of Article 75, and more generally about the nature of opinio juris.  Let me just add in passing that I haven’t cross-posted this to the Opinio Juris blog as it is in the middle of a symposium that I don’t want to interrupt with outside posts.)

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Unless I seriously have misread something in either today’s Wall Street Journal editorial on the Obama administration’s new executive order on detention, or else the Obama administration’s “fact sheet,” released yesterday with the text of the executive order, the Journal editorial is seriously factually mistaken as to the adminstration’s international law position.  The Journal editorial says, with respect to its “one exception” to the general praise it bestows on the policy:

The other note of trouble is Mr. Obama’s decision, also announced yesterday, to seek Senate ratification of a radical 1977 revision to the 1949 Geneva Conventions known as Additional Protocol 1. President Reagan repudiated Protocol 1 in 1987 because it vitiated the distinction between lawful and unlawful enemy combatants. Terrorists fight out of uniform and target civilians and thus do not deserve traditional prisoner-of-war protections. This was the two-decade political consensus until the Bush Presidency. Both the New York Times and the Washington Post editorialized in favor of Reagan’s Protocol 1 decision.

Our guess is that Mr. Obama has adopted Protocol 1 to appease the domestic left and especially the “international community” that will be dismayed by his new embrace of Gitmo and George W. Bush’s policies. Remember the moralizing Europeans? (See here.) Mr. Obama is nonetheless complicating the task of U.S. terror fighters, and encouraging further barbarism, by extending the laws of war to terrorists who hold combat restrictions in contempt.

The problem is, that is not what “fact sheet” says.  (The Executive Order on detention does not address these broader policy issues at all, and is confined to the internal workings of detention and hearings.)  The “fact sheet” gives a broader statement of US views and policies, including what it describes as a commitment to the international law framework that informs the law and policy.  In its section on international law, it commits itself to two things, neither of which is “seeking ratification of … Additional Protocol 1.”

The first is a commitment to seek ratification of Additional Protocol 2 (not 1).  This second additional protocol to the 1949 Geneva Conventions (like Protocol 1 opened for signature as treaties in 1977) addresses aspects of non-international armed conflict.  The United States government under President Reagan did not have a problem with this protocol overall – the Reagan administration in 1987 submitted it for Senate ratification.  The Obama administration has merely called for the Senate to go forward with a ratification process initiated by the Reagan administration.

This is by sharp contrast, as the Journal editorial has said, with the Reagan administration’s views of Protocol 1, which provides a redrafting – in some ways good, but in some enormously important things bad, as the Journal correctly says – of the law of international armed conflict.  But the fact sheet nowhere calls for ratification of Protocol 1, and indeed says that the “Administration continues to have significant concerns with Protocol I.”  A straight reading of the fact sheet says that the Administration would like to see a relatively uncontroversial and uncontested treaty on non-international armed conflict that was endorsed by the Reagan administration finally ratified, and that the Administration continues to have problems with Protocol 1 and is not pursuing ratification now any more than it or any administration subsequent to the Reagan administration has done.

Second, what the fact sheet does say about Protocol 1 is that the United States will embrace one article of it, Article 75.  The US government embraces Article 75 as something it has long done and accepted, and therefore the United States will

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.

The fact sheet does not say that the US will regard Article 75 as “customary law,” but that is the effect of the US saying that it will adhere “out of a sense of legal obligation.” Meaning that the US will follow this provision because it believes that it is binding law and on that basis expects other states to do the same.

What is Article 75?  It is a provision of Additional Protocol 1 applicable in “international” armed conflict that provides for certain basic minimums, so called “fundamental guarantees.” It repeats language in many other conventions concerning torture and what was at the time of drafting understood as a reference to rape and sexual assault – “outrages upon personal dignity” and “indecent assault,” and provides special protections for women held in detention.  (I’ve put the text in full below the fold.)

Article 75 has particular reference, however, to trials of a person detained under the laws of international armed conflict.  Its most basic provision is that there shall be no summary execution, and that prior to the imposition of a penalty, the accused be afforded a hearing and certain other minimum protections.  But it is pretty minimal.  It specifically contemplates that a Party to a conflict might impose the death penalty; it requires some additional process, but not really very much.  It provides for counsel – but does not assume that the counsel shall be a lawyer, but might be a fellow detainee.

Article 75 came to prominence as a source of law that might be applied in the Bush-era detainee cases as a set of minimum standards of hearings, and so on.  The difficulty on its face is that this is a provision in a treaty applicable to international armed conflict, and the conflict with Al Qaeda was rapidly being characterized as a non-international armed conflict.  There was a move to treat Article 75 as “customary” law that could be somehow treated as applicable across all forms of conflict.  The Supreme Court, in its Hamdan and related decisions, raised these possibilities without actually settling anything about Article 75.

I myself do not have a problem with treating Article 75 as a source of law that the US should use to guide all hearing processes of detention, in international or non-international armed conflict.  But that is a matter of choice by the United States, not in my view compelled by a provision of a treaty governing international armed conflict to which, additionally, the US is not even a ratifying party.  I am okay with the US applying this as a standard in non-international armed conflict on a voluntary basis, provided however that the standard of care taken be the same for all parties as the minimum.   The problem with how some discussion of Article 75 proceeds is that the assumption is one of “greater capacities, greater obligations.”

In this, the underlying assumption goes to a larger discussion today over the laws of war – viz., if you have greater capabilities or capacities, whether to use precision weapons, to hold more “formal” and “lawyerized” trials, etc., you have a legal obligation under the laws of war to do so, even if your enemies on the other side, lacking the capacity, do not do so and are not required to do so. This “each according to his capacities” re-write of the laws of war seems to me a terrible idea.  It gives each side, but particularly the weaker side, incentives never to develop such capacities, to start with – not just in technology, but in the ability to hold prisoners, conduct hearings, etc.  It similarly disincentivizes the more sophisticated side from developing such things as better precision weaponry, if the effect is to tell you that now you’re required to use it irrespective of what the other side does or your own concerns about resources and application of them.

I wondered about this trend back as precision weapons were becoming cheaper and more available, while working for Human Rights Watch in the early 1990s, and asked senior people at the International Committee of the Red Cross whether there would be an obligation upon one side, but not the other, to use such weapons: the capacities approach, creating unequal obligations upon the sides.  And I was told in no uncertain terms that this would never be the case – each side held to exactly the same standard was firmly asserted as the only sound basis for holding sides accountable. Well, time passes. I’m not entirely sure where the leading monitors are on this question, these days, but the hot discussion in cutting edge academic circles is, indeed, toward a capacities approach overall to the laws of war.  To which I am unequivocally opposed.

However, whatever risks one sees in a capacities approach combined with a view that Article 75 is customary law applicable in all forms of conflict, international and non-international, that is not actually what the Obama administration embraces in the fact sheet.  The fact sheet takes Article 75 on its own terms and in every instance refers to “international armed conflict.”  That’s it.  It embraces Article 75 on its face, as an obligation of states in international armed conflict.  That is not even addressing the kind of non-international armed conflict references that surface in the Supreme Court opinions or the concerns about non-international armed conflicts and terrorist detentions that the Journal mentions.  It is a position urged by Bush administration State Department Legal Advisor John Bellinger and numerous others, including me.

I am not exactly a cheerleader for the Obama administration, and my view of ratification of Protocol 1 is probably identical to the Journal’s.  But I think the Wall Street Journal editorial simply gets its facts wrong in this case.  My recommendation to the Journal is not to try and bluff and bluster out of it – claiming that what is said about Article 75 is enough to justify what it says about Protocol 1 in total, for example.  Better in this case to admit that it read, and wrote, too quickly, and made a mistake about what the Obama administration has said and done.

(And who knows, maybe I have read the editorial too quickly, or the fact sheet and order too superficially and have missed something major, in which case I am happy to be corrected and will says so.  But at this moment I don’t see it.)   Below the fold, the text of Article 75.Art 75. Fundamental guarantees

1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
(a) violence to the life, health, or physical or mental well-being of persons, in particular:
(i) murder;
(ii) torture of all kinds, whether physical or mental;
(iii) corporal punishment; and
(iv) mutilation;

(b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
(c) the taking of hostages;
(d) collective punishments; and
(e) threats to commit any of the foregoing acts.

3. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be accused or convicted of a criminal offence on account or any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt;
(g) anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(h) no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;
(i) anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and
(j) a convicted person shall be advised on conviction or his judicial and other remedies and of the time-limits within which they may be exercised.

5. Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men’s quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.

6. Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this Article until their final release, repatriation or re-establishment, even after the end of the armed conflict.

7. In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply:
(a) persons who are accused of such crimes should be submitted for the purpose of prosecution and trial in accordance with the applicable rules of international law; and
(b) any such persons who do not benefit from more favourable treatment under the Conventions or this Protocol shall be accorded the treatment provided by this Article, whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol.

8. No provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.