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

by Michael W. Lewis

[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?

http://opiniojuris.org/2013/02/17/michael-lewis-guest-post-how-clear-and-inviolable-is-the-line-between-ap-i-and-ap-ii/

3 Responses

  1. I remember the path as Common Article 3 (at a minimum) and API article 75 as a codification of customary international law that the US recognizes as such. Not sure if APII article 6 had reached that point at the time as customary international law codification acceptable to the US.

    With the events at the military commissions that have occurred recently maybe someone would say we meet APII art 6 at least so what we are doing is ok even if more questionable under API art 75.

    Stevens came out of WWII pre UCMJ and problematic death penalties in courts-martial then and now due to lack of death penalty qualified counsel or enough of them.

    As to whether we shift down to APII art 6 now in internal law being Hamdan I compliant AND being higher than APII art 6 compliant in international law makes prosecution harder than required. But maybe given the process by which we have gotten here that is not a bad thing. The torture complicates everything.

  2. Michael,
    I’ll accept your invitiation and provide some thoughts on the subjects you have mentioned.
    First, with all due respect to my good friend Dieter, I do not believe that it ever was black letter customary international law that the rules of NIAC’s applied only to internal armed conflict reaching a belligerency threshold.  I believe that view arose—particularly in Europe—from teleological interpretaitons of Common Article 3 and AP II (against the backdrop of customary law regarding belligerency).  Note that by its terms AP I applies to conflicts that are not necessarily strictly internal (wars between high contracting parties and wars against colonialism, alien occupation and racist regimes, someties called “CARS” conflicts).
    The U.S., the U.K. and others have always held a broader view of the customary applicabiiity of the law of war to armed conflict of any stripe: international, transnational and noninternational. That is why the Bush administration’s early view that transnational armed conflict was basically subject to no law at all (contending that because it was not international armed conflict but international in scope the war powers could be used without observing law of war constraints) was such a radical departure.  
    Regarding the dividing line between API and APII, I do not think it is absolute by their terms.  CARS conflicts, for example, could fit within the scope of either and might be subject to competing claims, with states claiming AP II or CA 3 (minimally regulated) conflict and non-state parties seeking AP I application for, among other things, the benefits of prisoner of war status.
    But all of this says nothing about which of their rules apply by custom to conflicts not subject to them by their terms.  The real issue on the table is whether or the extent to which the various provisions of AP I or AP II apply as a matter of customary international law to a transnational armed conflict and thus the “dividing line” formulation of the problem overemphasizes the text of the treaties, particularly the very narrow scope of AP II.
    It should also be kept in mind that AP II, like Common Article 3, is minimal because: (1) it clearly applied to internal armed conflict (but in AP II’s case, only in certain specific circumstances) and therefore required states to cede sovereignty over purely internal matters (something they usually do sparingly, in hortatory terms, and without providing a clear remedy); and (2) it was drafted, according to the commentary, with the ICCPR firmly in mind. 

  3. Foremost, I would advance the contention that the scope of applicability of AP II is broader than that of AP I. This follows in line with the expanding notion of what constitutes a NIAC, the determination of which is not subject to territorial confinement but rather to the actors involved.

    Secondly, broadening the understanding of what constitutes either an IAC or NIAC may not be such a bad thing. Effectively, it may lead to a hybrid situation whereby you have an “internationalized” NIAC, thus rendering both AP I and AP II applicable simultaneously. Considering the additional legal protections this may afford victims to an armed conflict, is this necessarily such a bad thing?

    Moreover, many of the legal safeguards stipulated in both Art. 75 and Art. 6 derive from either IHRL and/or customary international law. Hence, you already have a situation where the same legal norm regulates the same conduct, albeit derivative from a different legal framework. Why then, can you not have a situation where both AP I and AP II apply together?
     

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