United States is “Looking at” the Place of Fundamental Guarantees in the War on Terror

One of the enduring legal mysteries about the U.S. “war on terror” is whether the United States, which claims to be fighting an international armed conflict against al-Qaeda and related groups, accepts that it is bound by traditionally accepted rules of customary international law in that conflict.  Although this may seem like an arcane point, it is actually quite significant, since customary law would provide a number of protections for detainees held by the United States where they are not protected by the more detailed rules of the Geneva Conventions.

These protections are known as “fundamental guarantees” and are enumerated in Article 75 of the first Additional Protocol to the Geneva Convention of 1977.  They include a requirement that detainees “shall be treated humanely in all circumstances” as well as specific prohibitions of torture and humiliating and degrading treatment, and a requirement that no one can be convicted of a crime and sentenced except by “an impartial and regularly constituted court, respecting the generally recognized principles of regular judicial procedure.” 

The United States has not signed the Additional Protocol, but it has traditionally accepted that that the fundamental guarantees in Article 75 “should be observed…as customary law” (in the words of Michael Matheson, State Department Deputy Legal Adviser, in 1987).  It would seem to follow, therefore, that the United States should recognize the fundamental guarantees as binding on the United Sates in all international armed conflicts it is engaged in – including the armed conflict that it characterizes the “war on terror” as being.  That would mean that the use of humiliating and degrading treatment against detainees in Guantanamo and elsewhere would be forbidden – and would also raise questions about whether the military commissions set up to try terrorist suspects meet the standards of “regular judicial procedure.” 

But does the Bush administration still stand by the traditional U.S. position that the fundamental guarantees are customary law?  Some light was shed on this question in a public statement by John Bellinger, the State Department Legal Adviser, at Chatham House in London on February 9, 2006.  In an on-the-record question and answer session, Bellinger was asked whether he would reaffirm the principle that the standards of Article 75 were customary law in all international armed conflicts.  Remarkably, Bellinger said that the United States was “looking at” this question and that it had not yet made a decision about whether the fundamental guarantees were appropriate in a conflict against a terrorist group. 

The following is the full text of John Bellinger’s remarks (as transcribed from a recording of the event made available by Chatham House): 

“Article 75 of Geneva Protocol I does set a generally minimum standard for people who do not benefit from other provisions of the Geneva Convention, and the U.S. has historically said that we think that is customary international law.  We are looking at whether we think it is customary international law in this kind of a conflict.  There is certainly a good argument that it is, always.  But when it comes to customary international law, it is in things that you are customarily dealing with, and people have not had to customarily deal with armies of terrorists where the entire force of the army, not just a few people but the entire force of the army, is in fact intent not on fighting our armed forces, where sometimes guerrillas who have been contemplated by Geneva Protocol I…, but where the entire army of al-Qaeda is in fact intent on combating our civilians. 

“So while you make a reasonable point, we have said that that’s customary international law in the past, we are looking at whether that’s appropriate, and we haven’t said that it isn’t, but we have not yet said that it is, because this really is in that regard -- dealing with people whose whole aim in life is to kill civilians -- is sort of a different situation.” 

Since it is now over four years since the first detainees were transferred from Afghanistan to Guantanamo Bay, it seems extraordinary that the United States has not yet been able to make a determination on this important question.  This fact is enough to raise doubts about whether senior members of the administration are genuinely approaching the question in good faith.  Also, the failure to affirm this part of customary law makes a striking contrast with the assertion made within weeks of September 11, and repeated regularly since, that the customary right to detain enemy fighters until the end of hostilities is appropriate even in a conflict that seems likely to continue indefinitely. 

Previous administration statements about the reach of customary law in the U.S. counter-terrorist campaign have been largely confined to assertions that it cannot be judicially enforced in U.S. courts against the President – the position taken in internal memoranda written by former deputy assistant attorney general John Yoo – and have not explicitly addressed the legality of U.S. actions in international law per se.

Related Chapters from Crimes of War: What the Public Should Know:

Customary Law

International vs. Internal Armed Conflict

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