Note: December 19 “Early Edition” Readers – click here for John Sifton’s guest post, Torture Is Still on the Table. We apologize for the error in the link.

This post is a response to the Rona/Corn/Jinks series (Rounds 1 & 2) on the IHL vs IHR debate and to Beth Van Schaack’s post, “The Interface of IHL and IHR: A Taxonomy”.

With this post, I want to pose a question for future discussion of the debate and that is: what is the legal space in which the IHL vs IHR debate is conducted? This question is critically important for all those who (like myself) are engaged in litigating on IHL vs IHR issues.

My question is based on the following: most legal issues benefit from being analysed within at least some defined parameters. Such parameters might include: a particular legal system (e.g. English law); a particular forum (e.g. the Supreme Court); a particular period of time (e.g. whilst a particular UN Security Council Resolution is extant and applicable). Other parameters might be: whether the analysis is a critique of a perceived state of affairs or whether it is a prescription for a desirable state of affairs. I will refer to these sorts of parameters (there are others) as “legal space.” Identifying legal space is always important. It is only after identifying legal space that scholars and practitioners can properly consider the theoretical and practical ramifications of the relevant issue: how a given rule fits into the surrounding hierarchy of norms; the scope of its application; the room (if any) in which it might grow, the exceptions it has to grow around etc.

However, in my opinion, legal space has a particularly important role to play in the IHL vs IHR debate (i.e. the International Humanitarian Law vs International Human Rights Law debate) for three key reasons.

First, the IHL vs IHR debate is addressed to, and conducted by, an enormously (perhaps uniquely) varied constituency of commentators. It includes lawmakers, policymakers, academics, non-governmental organisations, practitioners, judges and journalists – from all over the world. This is a genuinely global debate – the issues raised by it do not dissipate with an assertion by one State that it regards one framework only as applicable in a given context (e.g. the US Government’s position in relation to targeted killings): the position of other States, especially when they are partners and allies in military action, remains important.

Secondly, and as a result of this global character: the IHL vs IHR debate can be conducted in a multitude of legal spaces and that makes it especially important to identify legal co-ordinates. Take the first of my examples of a parameter of legal space: a particular legal system. The IHL vs IHR debate can be conducted within one of several legal systems – the international; the regional; the domestic. However, considering the debate within one of these legal systems will often give rise to other complications or require a consideration of other legal systems and of the relationship between those systems.

So, for example:

(1) the debate may be conducted on the plane of international law. But, even then, “international law” merits further definition: it may be considered in the abstract or it may be considered more precisely by reference, for example, to a particular IHR treaty and the jurisprudence of that treaty’s adjudicative body (consider, for example, the International Covenant on Civil and Political Rights and the UN Human Rights Committee or the European Convention on Human Rights and the European Court of Human Rights). However,

(2) one person’s “specific international” may be another person’s “regional” – and that regional classification may bring in complications, for example the role and effect of UN Security Resolutions, in the light of Articles 25 and 103 of the UN Charter: see, for example, Al-Jedda in the European Court of Human Rights and Kadi in the European Court of Justice. Or

(3) the debate may be based on the plane of a particular system of domestic law. Even then that still gives rise to a plethora of threshold (domestic law) issues which often have a definitional (and legal space) relevance. For example, issues may arise regarding the role and relevance of international law in that domestic legal system and whether the issues concerned are properly justiciable in a domestic context. The domestic context also opens the door to questions of constitutional and administrative law and considerations of relative institutional competence (where should judicial inquiry stop and start?).

Given this variable legal matrix, an IHL vs IHR debate conducted without proper, prior, identification of legal space runs the potential risk of alienating or confusing at least parts of its audience. (This raises another question which I note in passing and in the hope of discussing it in future: if there are different outcomes to the IHL vs IHR debate depending on the legal space – and, in particular, the legal system – in which that debate is conducted then what does this mean for the integrity/cohesion of international law, especially on what are often highly emotive and polarising issues?)

Thirdly, given the developing nature of the IHL vs IHR debate, there is a real opportunity for academic and policy commentary to shape the litigation outcome of cases which require courts to grapple with an aspect of this relationship. Concrete examples or illustrations are a practitioner’s best friend, especially when dealing with what can be the mercurial legal relationship between IHL and IHR. So, for example, it is helpful to practitioners to know that academic and policy commentary in the IHL vs IHR debate is focussed on a particular legal system, or the role of a particular issue within that legal system (e.g. arbitrary detention or unlawful killing). It is detail of this kind which enables a practitioner to pray in aid such academic/policy commentary as being relevant – and that relevance is, itself, a key stepping stone to engaging judicial interest and, therefore, to leading to an application of the commentary to the case in hand.