Not so much.

Lawfare blog has a post on today’s Executive Order on Guantanamo Bay. (Link to the Obama administration’s fact sheet PDF here). Lawfare tends to be more conservative than most international law blogs, but it’s excellent and an absolute must-read for keeping up-to-date on all things law, national security and the war on terror. (Or as I like to call it, Saturday night!) There’s some good commentary on the refusal of Congress to help fund any progress on Guantanamo and some discussion of the return to military commissions.

More interesting for me is the section at the end of the Fact Sheet titled, “Support for a Strong International Legal Framework”. In it, the administration is basically stating that it is going to push for ratification of the 1977 Additional Protocol II to the 1949 Geneva Conventions and that it formally sees Article 75 of Additional Protocol I as customary international law. (Article 75 lists the “fundamental guarantees” in the Protocol for those “persons in the power of a party to a conflict”.)

The section says:

Because of the vital importance of the rule of law to the effectiveness and legitimacy of our national security policy, the Administration is announcing our support for two important components of the international legal framework that covers armed conflicts: Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions.
Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, to which 165 States are a party. An extensive interagency review concluded that United States military practice is already consistent with the Protocol’s provisions. Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict.
Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, is similarly important to the international legal framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported.
Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.

My first quick thoughts on this are that this is a big deal and not a big deal.

The United States has signed, but not ratified, the two Additional Protocols. In the 1980s political appointee lawyers, such as Doug Feith (who declared the Protocols to be “law in the service of terror”) worked to undermine efforts to have the US ratify them. (Although, to be fair, this was a position that was supported by the New York Times during this period.) They were successful, and in 1987 President Reagan declared to the Senate that he would not send API to them for ratification, but that he would send (the much more limited) APII through. However, the Protocol has been languishing there ever since.

So in some ways, this can actually be seen as fulfilling an old Reagan administration policy.

However, I think the clear and strong support for Article 75 is important, and will probably be welcomed by many in the international legal community, perhaps at least as a small comfort for the general sense of disappointment that Guantanamo is still around.

Also, while I feel it is a good thing that the administration has formally declared Article 75 to be customary, I think this may be bad news for API advocates overall. The policy is likely a result of the fact that the administration believes that ratification of Additional Protocol I is still a long way off – particularly with Congress’ attitude towards international law, Guantanamo and the war on terror. Additionally, the fact that the administration states (not entirely unreasonably) that it has “significant concerns” over Protocol I (no doubt related to the controversial provisions in Aricles 1(4) and 44(3))  suggests that the overall sentiment towards API has not really changed that much.

Finally, and related to the above point, I would argue that this “fact sheet” seems to confirm a pragmatic Obama policy of trying to work with international law within the constraints imposed by a hostile Congress. While it may not be able to ratify all of the treaties that it (and many in the international legal community) would (probably) like to, it will seek to at least cooperate and work with the international legal institutions and regimes where possible.

QUICK UPDATE – The always interesting and occasionally controversial Ben Wittes gives his take on it here. Short version: Good policy, but too bad that the President and Congress can’t work it out.

QUICK UPDATE 2: (Geeze this is moving quick!) State Department statement on these developments here.

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