Obama's Announcements on International Law

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. 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.