Why The US Declaration on AP I Will Not Prevent the Admission of Hearsay

Our friends at Lawfare have been having a typically intelligent debate about the meaning of the Obama administration’s recent declaration that “The U.S. Government will… choose out of a sense of legal obligation to treat the principles set forth in Article 75 [of the First Additional Protocol] as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.”  I won’t try to recapitulate the debate; readers interested in IHL should check out the sequence of posts for themselves.  (You can start with John Bellinger’s guest-post here.)  I would, however, like to respond to a guest-post by Cully Stimson, a former Deputy Assistant Secretary of Defense for Detainee Affairs, in which he claims that the declaration opens the door to detainee arguments that hearsay is inadmissible in the military commissions:

Here’s the question: by recognizing Article 75 of API as customary international law, which includes in §4(g) the “right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf,” has the administration inadvertently (or intentionally) invoked the Confrontation Clause of the Sixth Amendment, thereby potentially gutting the relaxed rules on the admission of hearsay available to both sides in military commissions? … I believe that this will result in substantial pretrial, trial, and appellate litigation.

The idea that Article 75(4)(g) prohibits hearsay is incorrect.  Although the provision bears a superficial resemblance to the Sixth Amendment, it was in fact carefully drafted to accommodate both the common law and civil law approaches to evidence.  Here is the ICRC’s commentary on the provision:

According to the Rapporteur of Committee III, this provision was worded so as to be compatible with both the system of cross examination of witnesses and with the inquisitorial system in which the judge himself conducts the interrogation.

Properly understood, therefore, Article 75(4)(g) only applies to witnesses who actually testify during trial; it does not apply to hearsay declarants, much less adopt the common law’s understanding of the right of confrontation.

That limitation may seem artificial or counterintuitive, but it is consistent with the significant influence that the civilian tradition’s “free proof” approach to the admissibility of evidence has had on the development of international law.  Every international criminal tribunal since Nuremberg has followed the civilian approach, even though nearly all of them have adopted adversarial models of procedure.  And that includes limiting the right of cross-examination to witnesses actually called by the prosecution, as indicated by the (slightly more clear) text of Article 16(3) of the London Charter, which provided that “[a] Defendant shall have the right through himself or through his Counsel… to cross-examine any witness called by the Prosecution” (emphasis mine).  It would thus be doubly strange if Article 75(4)(g) prohibited hearsay.

American military tribunals, it is worth noting, have followed the civilian approach embraced by Article 16(3).  For example, Article IV(e) of Ordinance No. 7, which specified the evidentiary and procedural rules for the Nuremberg Military Tribunals, simply reproduced Article 16(3) verbatim.  And although three NMTs ignored the text of Article IV(e) in favor of the common-law approach to hearsay — Farben, Flick, and Hostage — they were in the minority.

I would much prefer a military commission system that prohibited the admission of hearsay.  Article 75(4)(g), however, doesn’t advance the cause.