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Downloaded/Printed from Heinonline ( Fri Aug 23 15:48:03 2013 Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2009 Exceptional Engagement: Protocol I and a World United Against Terrorism Michael A. Newton Follow this and additional works at: https://scholarship.law.vanderbilt.edu/faculty-publications Part of the Human Rights Law Commons, International Law Commons, and the National Security Law Commons Recommended Citation Michael A. Newton, Exceptional Engagement: Protocol I and a World United Against Terrorism, 45 Texas International Law Journal. 323 (2009) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/636 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. +(,121/,1( Citation: 45 Tex. Int'l L. J. 323 2009-2010 Content downloaded/printed from HeinOnline (http://heinonline.org) Fri Aug 23 15:48:03 2013 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0163-7479 Exceptional Engagement: Protocol I and a World United Against Terrorism MICHAEL A. NEWTON* This article challenges the prevailing view that U.S. "exceptionalism" provides the strongest narrativefor the U.S. rejection of Additional Protocol I to the 1949 Geneva Conventions. The United States chose not to adopt the Protocol in the face of intensive internationalcriticism because of its policy conclusions that the text contained overly expansive provisions resulting from politicized pressure to accord protection to terrorists who elected to conduct hostile military operations outside the established legal framework. The United States concluded that the commingling of the regime criminalizing terrorist acts with the jus in bello rules of humanitarian law would be untenable and inappropriate. In effect, the U.S. concluded that key provisions of Protocol I actually undermine the core values that spawned the entire corpus of humanitarianlaw. Whether or not the U.S. position was completely accurate, it was far more than rejectionist unilateralismbecause it provided the impetus for subsequent reservations by other NA TO allies. More than two decades after the debates regarding Protocol I, the U.S. position provided the normative benchmark for the subsequent rejection of efforts by some states to shield terrorists from criminal accountability mechanisms required by multilateral terrorism treaties. This article demonstrates that the U.S. policy stance regarding Protocol I helped to prevent the commingling of the laws and customs of war in the context of the multilateralframework for responding to transnational terrorist acts in the aftermath of September 11. In hindsight, the "exceptional" U.S. position was emulated by other nations as they reacted to reservations designed to blur the distinctions between terrorists and privileged combatants. U.S. "exceptionalism" in actuality paved the way for sustained engagement that substantially shaped the internationalresponse to terroristacts. This article suggests that reservationsprovide an important mechanism for states to engage in second-order dialogue over the true meaning and import of treaties, which in turn fosters the clarity and enforceability of the text. * Professor of the Practice of Law, Vanderbilt University Law School. I am grateful to the participants in the Terrorism and Humanitarian Law Roundtable held at Vanderbilt University Law School for their insights and assistance in refining and refraining the arguments herein. In particular, Larry Helfer, Ingrid Wuerth, Charles Garraway, Mark Osiel, Linda Malone, Mark Drumbl, Greg McNeal, Michael Scharf, Elies van Sliedregt, Roger Alford, Laura Olson, Laura Dickinson, Jelena Pejic, Richard Jackson, Gary Solis, Eve La Haye, Rachel Gore, and Chris Cunico have been instrumental in bringing this article to fruition. TEXAS INTERNATIONAL LAW JOURNAL [VOL. 45:323 SUMMARY I. IN TRO D U CTIO N ...................................................................................................324 II. FRAMING THE PROBLEM OF UNLAWFUL BELLIGERENCY .............................331 A . The Pragmatic Context ...............................................................................331 B. Early U.S. Leadership in Distilling the Law .............................................334 C. The 1949 Geneva Conventions................................................................... 337 D. Protocol Ias an Evolutionary Vehicle ......................................................342 1. The U nited States R esponse ...............................................................347 2. The National Reservations of NATO Partners ................................352 III. THE PRACTICE OF PRINCIPLED EXCEPTIONALISM .........................................356 IV. THE POST-SEPTEMBER 11 LEGAL CONTEXT ...................................................360 A . The Changing Face of Terror..................................................................... 363 B. Evolution of the MultilateralFramework Regulating Terrorism............ 366 1. Reservations to the Terrorist Financing Convention .......................366 2. Reservations to the Terrorist Bombing Convention ........................370 V . CO NCLU SIO N .......................................................................................................373 I. INTRODUCTION The United States was one of the influential drivers in the promulgation of the principles regulating hostilities which define the lawful scope of participation in armed conflicts. This line of treaties, derived from the strong political and military support of the United States, ended during the negotiations for the 1977 Protocols to the 1949 Geneva Conventions.' Protocol I is applicable to armed conflicts of an international character, but the final text incorporated highly controversial changes to the types of conflicts that could legally be characterized as interstate wars, with the attendant consequence of conveying combatant immunity to a far broader class of persons. Many Third World nations, supported by the negotiating muscle of socialist states, hijacked the Protocol to achieve explicitly political objectives. This treaty is accordingly unique in having been described as "law in the service of terror."2 The United States concluded that the most controversial aspects of 1. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)Annex I,Dec. 7, 1979, 1125 U.N.T.S. 3 [hereinafter Protocol I]; see also Douglas J. Feith, Law in the Service of Terror, 1 NAT'L INT. 36, 39-41 (1985) (discussing differences of opinion held by "Westerners" and "Socialists" during the negotiations for Protocol I and how arguments made by the United States ultimately did not prevail leading to their abstention from voting). 2. Feith, supra note 1, at 36-37; see also Abraham Sofaer, Terrorism and the Law, 64 FOREIGN AFF. 901, 901-03 (1986) ("At its worst the [international] law [applicable to terrorism] has in important ways actually served to legitimize international terror, and to protect terrorists from punishment as criminals."). 2009] EXCEPTIONAL ENGAGEMENT Protocol I represented an impermissible altering of the cornerstone concepts of combatancy more than a natural and warranted evolution of the laws of war. The U.S. rejection of Protocol I represented far more than hypocritical "exceptionalism" however, as the underlying policy position provided the template for sustained engagement with other nations. The overwhelming solidarity of states sharing the U.S. position that international law affords no protection for the criminal acts of terrorists became clear over more than two decades and was revalidated following the shock of September 11. Terrorism in all its forms and manifestations constitutes one of the most serious threats to international peace and security, as well as perhaps the most pernicious threat to the fundamental human rights of private, peace-loving citizens. There is universal and strongly articulated support for the positivist legal premise that "any acts of terrorism are criminal and unjustifiable, regardless of their motivation, whenever and by whomsoever committed and are to be unequivocally condemned."3 The U.N. General Assembly reaffirms that "no terrorist act can be justified in any circumstances." 4 By extension, this dominant consensus led to the modern framework of multilateral conventions obligating states to cooperate together in eradicating terrorism and to use their domestic legal systems to the fullest extent possible in the detection and prosecution of persons involved with the perpetration or support of terrorist activities. Article 6 of the International Convention for the Suppression of the Financing of Terrorism, inter alia, requires acceding states (169 at the time of this writing)' to "adopt such measures as may be necessary, including, where appropriate,
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