Michael Lewis Guest Post: How Clear and Inviolable is the Line between AP I and AP II?

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

In his Hamdan opinion in 2006 Justice Stevens described the conflict between al Qaeda and the United States as a NIAC (his opinion did not address in any way the geographical scope of that NIAC).  He then went on to measure the process provided by the military commissions against the requirements laid out in AP I Art. 75.  At the time I found this to be odd because AP I is supposed to apply to IAC’s while AP II applies to NIAC’s.  As I pointed out here this was all the more puzzling because AP II Art. 6 is worded in almost exactly the same way as AP I Art. 75.  However, Art. 6 is four paragraphs shorter than Art. 75 and fails to provide some of the protections that Justice Stevens found to be indispensable in his opinion striking down the military commissions.  At the time everyone seemed to agree with Stevens’ reliance on Art. 75 and most critiques of the future military commissions also referenced Art. 75 as the standard against which they were to be measured.  I don’t believe I have ever seen a reference to AP II Art. 6 in any of these discussions. This agreement in relying upon an AP I article to determine the indispensable guarantees associated with a NIAC cut across the political spectrum from members of the JAG Corps to ICRC representatives to members of Human Rights Watch and Human Rights First.  When, as someone brand new to academia, I raised the textual problem one individual patiently explained to me that a lot had changed since 1977 and intervening wars, particularly the one in the former Yugoslavia, had changed the way this divide was perceived.

Why am I mentioning this now?  Because it seems as though IHL scholars currently have an interest in AP II that did not seem to exist in 2006.  In a variety of areas from Deborah’s analysis of the White Paper to panelists at various events insisting that the line between AP I and AP II should not be blurred there appears to be a (re)new(ed) interest in keeping the provisions of the two Protocols separate.  Meanwhile Kevin’s analysis of the White Paper relies heavily on provisions found in AP I.

My own view is that textually there is a clear divide between the two Protocols. However, the conflict with al Qaeda does not truly fit into either category of conflict.  It should be remembered that as late as 1995 it was quite literally “black letter” law that the rules of NIAC’s only applied to internal conflicts that reached the “magnitude of an armed riot or a civil war” (or so said The Handbook of Humanitarian Law in Armed Conflicts).  It is perhaps understandable then if, absent an international convention clearly establishing the rules for this sort of conflict, the rules governing both IAC’s and NIAC’s are borrowed from in an attempt to most appropriately regulate such a conflict.

I therefore believe that either framework (hybrid rules for a hybrid conflict or strict adherence to the laws of NIAC) is defensible.  What prompted this post is that the seeming consensus around using hybrid rules to deal with a hybrid conflict seems to have recently eroded in favor (at least in some areas) of strict adherence to the laws of NIAC and the primacy of AP II.  This was not an approach that received even marginal attention in its clearest of applications (Art. 6 vs. Art. 75) seven years ago.

I am curious what readers think about the dividing line between the two Protocols.  Should the separation be absolute?  Has it always been viewed that way?  Is the line separating the two Protocols more important now than it was in 2006?