This post is one 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.  You can find the posts from Round I of the debate here: RonaCorn, and Jinks.   And don’t miss the other posts from Round II.

It’s great to have such deep and experienced thinkers as Profs. Corn and Jinks weighing in on questions at the heart of determining the constraints applicable to States in the fight against terrorism.

I’ve focused on the question “Is it war?” Prof. Corn addresses the intersections between the use of military force and the determination that it is war. Prof. Jinks focuses on the relationship between International Humanitarian Law and Human Rights Law when it is war. These are all somewhat distinct ways of coming at the same ultimate questions: Who can you kill without criminal charge or trial?  Who can you detain without criminal charge or trial?  What are the constraints on detainee treatment?  And what are the constraints on trials of suspected terrorists? The answers to these questions depend on whether the context is, or isn’t, war.

(The recent terrorist attack in Nairobi, for example, which occurred after we submitted our original posts, has been attributed to Al Shaabab, a terrorist group with unspecified ties to Al Qaeda. The attack highlights the debate on how far the war against Al Qaeda extends, and how far it should extend. The use of force, including military force, may be both lawful and necessary against the Nairobi perpetrators.  Regardless, it does not necessarily determine whether the United States is, or should be considered to be, “at war” against Al Shaabab.)

In war, there is no doubt that IHL is the primarily applicable legal framework. But two big variables remain. Different conclusions might be drawn on all these questions depending on 1) whether the war is international or non-international armed conflict (wars in which non-state armed groups figure exclusively on at least one side of the conflict), and 2) on the role that is assigned to human rights law in war. In international armed conflict, for example, an entire Geneva Convention – the Third – is devoted to the detention, rights and treatment of prisoners of war. And another Geneva Convention – the Fourth – is devoted to detention/internment and the rights and treatment of civilians, including in situations of occupation. But in wars against non-state armed groups, the Third and Fourth Geneva Conventions don’t apply. This raises the question Prof. Jinks addresses: what is the role of human rights law in armed conflict, especially in situations where the lex specialis (IHL) is silent?

Prof. Jinks proposes 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.” I agree with Prof. Jinks that the popular notion put forth by many human rights advocates, as well as some IHL experts, that IHL applies only to “the battlefield” or “zones of active hostilities” is not very satisfying. First, these notions are ambiguous. Second, it was never the case that a soldier of the Third Reich could not be targeted while skiing in Austria, as opposed to when he fought on the beaches of Normandy. The more principled road to reduced reliance on IHL and increased reliance on human rights law is in recognition of the fact, as I argued earlier, that the struggle against what is left of Al Qaeda, and what there is of other terrorist groups, is simply not armed conflict.

Prof. Jinks also notes, however, that “the effort to drive down the threshold of application of IHL—especially in non-international armed conflict—“ in the negotiation of the Geneva Conventions was not born of the desire to limit killing and detention to human rights law parameters. Rather, it was because of sovereignty interests. States were not ready to let international law decide how they should deal with non-international conflict. True, but so what? That was 1949 and since then, we’ve had an explosion of human rights law, gradually increasing the status of the individual as a subject and object of international law at the expense of traditional notions of sovereignty. This yields not so much a reduction in the threshold of application of IHL, but rather, an expansion of the overlap – or complementarity – between IHL and human rights law. That complementarity, pursuant to the lex specialis principle, means that human rights rules will apply to armed conflict contexts where IHL is silent, for example on questions of grounds and procedures for detention and trial in non-international armed conflict. As for targeting, where IHL is not silent and provides for less restraint than does human rights law, it remains critically important to distinguish between what is, and what is not, war.

Prof. Corn doesn’t directly address the question of relations between IHL and human rights law. Rather, he suggests that the U.S. reaction to 9/11 and other terrorist threats have been military and “in a manner that cannot be squared with a law enforcement legal framework.” I fully agree that military force has been a large part of U.S. counterterrorism policy. But so have criminal justice, diplomacy, intelligence sharing and sanctions. Not only are these tools entirely consistent with a criminal justice framework, but in fact, so is the use of military force. If that sounds odd, recall that it is facts on the ground – the existence of identifiable parties and a threshold of hostilities – that determine the application of IHL, not the decision of a State that it will use military guys with M-16s and drones rather than cops with revolvers, mace and handcuffs. (I disagree with Prof. Jinks’ suggestion that “States enjoy the ability to trigger the application of IHL unilaterally—through a declaration of war.”)

Finally, if the use of military force doesn’t necessarily trigger IHL, it calls into question Prof. Corn’s conclusion that we must assert IHL in order to preserve the availability of military force. However, I agree with Prof. Corn that if IHL doesn’t apply, then we can’t detain people without charges or trials. He thinks that’s illogical. I think it’s an essential cost of doing business in a free and democratic society committed to human rights.