Does AP I Art. 75 apply to NIAC’s?
There has been a good deal of discussion both here between Kevin Heller and Cully Stimson and over at Lawfare by Jack Goldsmith, Gabor Rona and John Bellinger on the impact of the Administration’s declaration on Additional Protocol I and it’s possible effect on hearsay admissions in military commission hearings.
While I agree with Jack and Kevin that it should not effect the military commissions it is for a reason scarcely touched upon in any of the other posts. That is the existence of Article 6 of Additional Protocol II, the AP II analog to Article 75(4) of AP I. While John acknowledges its existence he states that it is virtually identlical to Article 75, and he is right to a point, but it is the difference between these articles that is so critical.
It was the “right to examine . . . the witnesses against him” which prompted Cully to posit that this might undermine the hearsay exclusions found in the military commissions. This right is found in Article 75(4)(g) of AP I. However, unlike Article 75(4) which has ten subparagraphs (a-j), Article 6 only contains 6 subparagraphs (a-f). The included paragraphs are essentially identical, but Article 6 does not contain a subparagraph (g) or any language about a right to examine witnesses.
This matters because both the plain language of the Geneva Conventions and their interpretation by Justice Stevens in Hamdan, indicates that the conflict between the United States and Al Qaeda is a non-international armed conflict (NIAC) which is governed by Common Article 3 and Protocol II, as opposed to an international armed conflict (IAC) which is governed by the full panoply of the Geneva Conventions and Protocol I.
Because the Additional Protocols were drafted in parallel, AP I applying to IAC’s and AP II to NIAC’s, differences between the two would seem to reflect the contracting states’ desire to differentiate between the two types of conflict. As a result, claims that portions of AP I have become customary law for IAC’s, the field of conflict they were intended to regulate in the first place, are much stronger than claims that provisions of AP I have become customary law for NIAC’s. This is particularly true where, as here, the provision governing NIAC’s, Article 6, consciously excludes the very language that is being advanced as having achieved customary status (Article 75(4)(g)). In such a circumstance, absent a clear and unequivocal statement that a state considers itself bound by the AP I provision in the context of a NIAC, such AP I provisions cannot achieve customary status. The Administration’s statements regarding Article 75 and AP I fall well short of this mark.
I wrote at more length on this issue here in discussing the Hamdan opinion’s reliance on Article 75 rather than Article 6 in the context of a NIAC.