Exceptional Engagement: Protocol I and a World United against Terrorism

By Newton, Michael A. | Texas International Law Journal, Winter 2009 | Go to article overview

Exceptional Engagement: Protocol I and a World United against Terrorism


Newton, Michael A., Texas International Law Journal


This article challenges the prevailing view that U.S. "exceptionalism" provides the strongest narrative for 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 international criticism 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 humanitarian law. Whether or not the U.S. position was completely accurate, it was far more than rejectionist unilateralism because it provided the impetus for subsequent reservations by other NATO 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 multilateral framework 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 international response to terrorist acts. This article suggests that reservations provide 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.

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.1 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 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. …

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