Debate (Round 1): Against the Notion of Competing Legal Frameworks in the “War on Terror”

This post is the third in a series from Gabor RonaGeoffrey Corn, and Just Security’s Derek Jinks. The debate addresses a fundamental question for US national security law: What set of international rules should apply to the US conflict with Al-Qaeda? The laws of war? International human rights law? A combination of both? We organized this discussion as a three-way debate to identify and engage substantially different perspectives on the topic. Be sure to check back tomorrow for Round 2.

Broad application of international humanitarian law (IHL), also known as the law of armed conflict, raises several important questions of international law and policy–particularly in the context of international terrorism. Many of the most intractable debates about the role of law in counter-terrorism policy directly or indirectly rest on one or more assumptions about the collateral legal consequences of the “armed conflict” characterization. For example, debates about the proper geographic scope of the “battlefield” often center on where the IHL framework should apply–as opposed to a more robust legal framework, such as international human rights law–and where it should not. The focal point in these debates is the contention that the “battlefield” is coincident with those places in which an “armed conflict” exits. Debates about U.S. targeted killing policy–particularly the use of drone strikes in areas far removed from any conventional battlefield–often centers on the appropriate or optimal legal framework for shooting to kill suspected terrorists. The focal point in these debates is the contention that IHL provides the relevant legal framework only where the target is a combatant in an armed conflict–in other words, that IHL is the framework, perhaps to the exclusion of other potentially applicable legal frameworks, only where the persons in question are connected to an armed conflict in the right way.

At bottom, this line of thinking rests on the assumption that international legal regimes for the protection of individuals constitute mutually exclusive legal frameworks.  In this Post, I question this assumption–and I do so through an analysis of the claim that IHL is the lex specialis governing the treatment of enemy individuals in time of armed conflict. I argue that IHL and international human rights law apply in armed conflict–and that these two frameworks are formally complementary legal regimes. My analysis suggests that: (1) IHL should apply more broadly than human-rights-centered critiques of the “war model” suggest; and (2) international human rights law applies more broadly–and international human rights institutions enjoy broader competence–than proponents of the “war model” suggest.

1. Two Forms of, and Two Justifications for, the Lex Specialis Claim

The principle lex specialis derogat lege generali maintains that, in cases of conflict, specific rules should take precedence over more general standards. The primary justification for this principle is that it assigns priority to the rule most narrowly tailored to the specific context–suggesting that it would be more effective and that it better reflects the will of the parties. International humanitarian law and international human rights law both govern the treatment of individuals subject to the authority and/or lethality of the obligated power. International human rights law prescribes the treatment states must accord all persons subject to their jurisdiction in all circumstances. Human rights law is, in this important sense, a regime of general application. Of course, human rights law also expressly contemplates its application in times of national security crisis–including times of war. IHL, on the other hand, applies only in special circumstances–declared war, armed conflict, and military occupation.

Against this backdrop, the lex specialis principle has been applied in this context in two importantly different ways. The first approach maintains that the lex specialis rule should apply at the regime level–suggesting that the applicability of IHL should wholly displace the application of international human rights law. On this approach, there are pervasive normative conflicts across the two regimes and that the more fully articulated, more narrowly tailored approach of IHL should govern the treatment of persons associated with the enemy in time of armed conflict. This approach would not only deprive human rights law of any independent normative force in armed conflicts, it would also deprive international human rights machinery of any role in supervising the conduct of hostilities. The second approach maintains that IHL, as lex specialis, determines the meaning of important, abstract standards in human rights law. This view is famously associated with the International Court of Justice (ICJ). In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ reasoned that both human rights law–in this case, the International Covenant on Civil and Political Rights– and IHL apply “in times of war.”  Whether any killing in this context amounts to an “arbitrary deprivation of life” under Article 6(1) of the Covenant, however, is “to be determined by the applicable lex specialis, namely the law applicable to armed conflict.” On this approach, the content of human rights law is determined solely by reference to IHL–depriving human rights law of independent normative force. The important difference between this approach and the first, however, is that the second approach acknowledges the competence of international human rights supervisory and enforcement machinery in armed conflict–even if the norms to be interpreted and applied in such situations are exclusively drawn from IHL.

Two reasons, to varying degrees, favor this approaches. First, IHL authorizes states to engage in some acts that would be flatly inconsistent with international human rights law. For example, IHL allows warring parties to target and kill, in the absence of any individualized determination about necessity, enemy combatants and even civilians directly participating in hostilities. IHL also arguably authorizes warring parties to capture and detain persons, members of the enemy armed forces and enemy national civilians posing a security threat for the duration of the hostilities. Second, human rights law should not fill the gaps in protection afforded by IHL because those gaps promote larger regime objectives in IHL. The point is that IHL calibrates the treatment accorded enemy individuals to incentivize fighters and civilians to conduct themselves in a manner that is consistent with IHL and that facilitates compliance with IHL by their enemy.

These two claims suggest that the lex specialis of IHL is more narrowly tailored to the exigencies of armed conflict and that it is more likely than human rights law to reflect the will of treaty makers and more likely than human rights law to be effective in promoting humane and fair treatment of enemy individuals. I argue that the application of IHL–meaning the existence of an armed conflict–should not be understood to displace the application of international human rights law. I outline two fundamental respects in which the lex specialis claim misconstrues or distorts international humanitarian law. Sustained reflection on the collateral legal consequences of IHL promises to shed light on a number of important debates in public international law–what is the relationship between IHL and international human rights law. More specifically, careful analysis of the issue would help clarify the discrete role that international law might play in protecting individuals in time of armed conflict. It also helps to clarify the circumstances in which IHL applies.

2.  IHL and Affirmative Authorization

International humanitarian law is broadly compatible with human rights law in that it does not require, or authorize, states to engage in conduct prohibited by human rights law. The nature of IHL, the unique work that it is designed to do, and its resulting relationship with other aspects of public international law suggest that IHL should not be understood as conferring authority on states in the strong sense. IHL rules, in the main, are prohibitory. These rules establish a floor of humanitarian protection–crafted in light of the vulnerable circumstances common to organized hostilities.

An important feature of the IHL regime makes clear that it does not provide affirmative authorization to kill, capture, or detain. IHL is, in one important respect, a second-order legal regime–governing only the conduct of hostilities. That is, the legality and, indeed, the justifiability of the organized violence itself is not regulated by IHL. In fact, one central tenet of IHL is that a strict separation between jus ad bellum (the law regulating the resort to armed force) and jus in bello (the law regulating the conduct of hostilities) considerations is necessary. In other words, the scope and content of IHL does not turn on which side in an armed conflict is in the wrong regarding the initiation of hostilities. This strict separation between ad bellum and in bello issues is necessary because the conflation of these regimes would systematically weaken IHL. All, or nearly all, warring parties would claim for themselves the prerogatives associated with the lawful initiation of hostilities and assign to their adversaries the disabilities associated with unlawful initiation of hostilities. IHL, as a matter of sociological imperative, remains indifferent to how or for what reasons the fighting started.

As such, compliance with IHL never ensures that any particular use of force or coercive measure taken against the enemy is lawful in the strong sense. In this sense, the ICJ’s holding that the meaning of abstract standards in human rights law, such as the meaning of arbitrariness in the prohibition on arbitrary deprivation of life in the ICCPR–is normatively suspect. Although IHL is certainly relevant, and perhaps centrally so, in making arbitrariness determinations under the ICCPR, these determinations surely must also address whether the initiation of the armed conflict on behalf of the entity for which the killer fights was and is consistent with the jus ad bellum. It seems perverse to characterize as non-arbitrary killings committed in furtherance of an aggressive war in contravention of the UN Charter–irrespective of whether the killing is otherwise consistent with IHL. Arbitrariness inquiries, even in times of armed conflict, would also presumably ask whether the killing was committed pursuant to domestic law. Once again, it would be perverse to suggest that killings committed in violation of national rules of engagement or in a manner that is otherwise ultra vires under domestic law would be non-arbitrary simply in view of the fact that the killing was consistent with IHL. The notion of “arbitrary deprivation of liberty” in Article 9 of the ICCPR is amenable to a similar analysis. The upshot is that human rights law must apply alongside IHL and it must retain some independent normative content.

3. “Armed Conflict” as Determinant of Regime Boundaries

In addition, the “armed conflict” concept is manifestly ill-suited to arbitrate between potentially applicable protection schemes. Contemporary IHL is designed to address the problem of under-application of humanitarian norms. It lacks the conceptual or normative resources to resolve over-application problems of the sort that motivate the lex specialis claim.

Two features of IHL make this clear. First, the armed conflict threshold is too low to determine the optimal regime boundaries between IHL and human rights law. The abandonment of formal triggers in favor of the de facto concept of “armed conflict”–and the extension of IHL into situations of non-international armed conflict–were driven by concerns about the systematic under-application of humanitarian principles. The only countervailing consideration was state sovereignty–and the inherent prerogative of states to maintain law and order on their territory without unwarranted interference from the international community. In other words, the effort to drive down the threshold of application for IHL–especially in non-international armed conflict–was resisted solely on the grounds that unorganized, low levels of violence should not be understood as a matter of international concern. States wholly denied the relevance of international law in such circumstances. There is no indication–in state practice from 1949-2001 or in the drafting history of the Geneva Conventions, the Additional Protocols, or the principal global human rights treaties–that states contemplated a rights-regarding, over-application issue in IHL.

Second, the “armed conflict” concept cannot determine the outer limit of human rights law because it would allow, by its nature, ill-motivated states to bootstrap into a more favorable (viz., less constraining) international legal framework. The point here is that the inquiry into the existence of an armed conflict places great weight on the actions of individual states. States enjoy the ability to trigger the application of IHL unilaterally–through a declaration of war, recognition of belligerency of a non-state party, or initiation of hostilities. There is no indication that Common Article 3 of the Geneva Conventions was drafted so as to enable international actors to second-guess a state’s affirmative classification of non-international hostilities as an “armed conflict.” To the contrary, the provision was exhaustively debated and repeatedly revised because of disagreement about the conditions under which the laws of war apply to even internal conflicts despite opposition from the state. And there is zero evidence of concerns about over-application of the rules–the only concern was the failure to apply IHL to cases of organized hostilities. The important point is that individual states enjoy the ability to trigger the application of IHL–even in circumstances that are otherwise inconsistent with international law.

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In future posts, I’ll have much more to say about: the low threshold of application for IHL; the best ways to resolve inconsistencies between the requirements of IHL and human rights law; and whether there are good reasons to prefer the content of one regime or the other in particular circumstances. For now, I maintain only that the notion of IHL as lex specialis trumping the application of human rights law is deeply suspect. As I stated at the outset, this rebuts one important reason why human rights activists resist application of IHL in the “war on terror” and one important reason why “war model” proponents resist the application of human rights law in armed conflict. 

About the Author(s)

Derek Jinks

Marrs McLean Professor in Law at the University of Texas School of Law Follow him on Twitter (@djinks).