In my previous post, I took seriously Jonathan Horowitz’s concern that some States believe that the application of international humanitarian law (IHL) may displace or reduce the protections of international human rights law (IHRL). Rejecting this view, I argued that IHL and IHRL apply in parallel during armed conflict, each offering important protections from violence and abuse.

In this post, I will take seriously Jonathan’s concern that some States believe that IHL provides affirmative legal authority to use force that would otherwise violate IHRL or other applicable legal rules. Rejecting this view, I will argue that IHL prohibits some uses of force but does not authorize any uses of force.

I will conclude by revisiting my original post, clarifying my argument that IHL applies to first strikes between States and armed groups or between such groups. As we shall see, IHRL applies to such first strikes as well.

IHL is Prohibitive, Not Permissive

To fully understand the relationship between IHL and IHRL, we must first understand the nature of IHL itself. Jonathan is correct when he writes that “IHL provides a restrictive set of rules that prohibit warring parties from committing intolerable acts” and “place limits on how enemies can fight wars.”

Importantly, Jonathan notes that some States take the view that IHL provides affirmative legal authority for States to use deadly force, including deadly force prohibited by other applicable legal rules. For example, Jonathan writes that 

[i]f we remove [the non-international armed conflict] “intensity” requirement, . . . a State might think IHL entitles it to shoot dead, and on sight, a member of [organized armed] groups who poses no immediate threat; and a State might think IHL entitles it to do so even if it knows with certainty that it will kill bystanders in the process. This would be a vast expansion of the State’s authority to kill. (emphasis added) 

Such a State would be mistaken. IHL prohibits killing enemy fighters perfidiously or when they are hors de combat, and prohibits inflicting disproportionate incidental harm on civilians. However, IHL does not “entitle” or “authorize” State armed forces to non-perfidiously kill enemy fighters who are not hors de combat, or to inflict proportionate incidental harm on civilians. We should reject this mistaken view.

As I noted in my original post, quoting the ICRC, “[t]he law relating to the conduct of hostilities is primarily a law of prohibition: it does not authorize, but prohibits certain things.” When we say that IHL “permits” certain conduct, we mean only that IHL does not prohibit that conduct. We do not mean that IHL authorizes or justifies that conduct, or provides a legal right to engage in that conduct that might override other legal constraints.

To see this, consider that

  1. IHL applies equally to all parties to armed conflict;
  2. IHL does not entitle or authorize organized armed groups to kill State armed forces or to harm civilians;
  3. Therefore, IHL does not entitle or authorize State armed forces to kill members of organized armed groups or to harm civilians.

(1) is a core principle of IHL. (2) is clearly true, since members of organized armed groups are subject to domestic criminal prosecution for killing State armed forces or harming civilians. (3) follows logically from (1) and (2).

IHL confers no legal right or authority upon either State armed forces or armed groups to use deadly force. In non-international armed conflict, State armed forces receive legal authority to fight from domestic law, not from international law. Armed groups enjoy no legal authority to fight under either domestic law or international law. Instead, IHL constrains the use of deadly force by both State armed forces and organized armed groups, irrespective of their legal authority or criminality under domestic law.

Finally, as we saw in my previous post, the prohibitions and protections of IHRL apply alongside the prohibitions and protections of IHL during armed conflict. Accordingly, the legal authority to fight conferred by domestic law on State armed forces is itself constrained by IHRL.

Application of IHL to First Strikes

As I noted in my previous post, Jonathan and I agree that IHRL applies to a State’s first strike against an organized armed group. However, on my view, IHL also applies to that first strike. IHL and IHRL apply in parallel, neither displacing nor compromising the other. Accordingly, first strikes may violate IHRL even if they do not violate IHL.

In particular, it is not possible for a State to “bootstrap” its way out of its IHRL obligations simply by launching a first strike at an organized armed group that poses no imminent threat. Such a first strike would arbitrarily deprive individuals of their lives and involve measures derogating from otherwise applicable human rights obligations that are not strictly required by the exigencies of the circumstances. For more on how IHRL might regulate the resort to armed force between States and organized armed groups, I highly recommend earlier posts by Eliav Lieblich and Jan Hessbruegge.

Why does IHL apply to first strikes? My original post seems to have given Jonathan (as well Deborah Pearlstein) the impression that my view is motivated by the desire to fill gaps in protection left open by other bodies of law. For example, I observed that IHL applies to extraterritorial uses of force by States and to military operations by armed groups. In contrast, many States deny that IHRL applies to extraterritorial uses of force by States or to military operations by armed groups. Understandably, these observations left some readers with the impression that, on my view, IHL should apply to first strikes because IHRL may not. That was not my intent, and I am grateful for this opportunity to clarify the nature of my argument.

In my view, we should interpret both the substantive rules of IHL and the conditions for the application of IHL in light of the object and purpose of IHL. The primary object and purpose of IHL is to protect human beings against dangers arising from military operations. Accordingly, IHL should apply to all such military operations. To postpone the application of IHL until a first strike triggers an armed response, or until military operations reach a high level of intensity, would be inconsistent with the object and purpose of IHL.

In his response, Jonathan argues we do not need IHL to protect individuals from first strikes, because IHRL adequately protects individuals from State armed forces. Jonathan argues that we should insist that IHRL applies to extraterritorial uses of force even if many States reject this view. Jonathan concedes that IHRL may not protect individuals from organized armed groups, although Jonathan cites Daragh Murray’s new book for a more nuanced position.

In my view, the purpose of IHL is to protect individuals, not to ensure that individuals are protected by some body of law or another. Purposive interpretation of IHL should avoid illogical gaps in protection by IHL. Narrow interpretation of IHL may be particularly objectionable where it leaves individuals without any legal protection at all. However, narrow interpretation of IHL remains objectionable where it leaves individuals without protection by IHL from dangers arising from military operations. IHL applies to first strikes, not in order to fill gaps left open by IHRL, but because such application is required by the object and purpose of IHL.

Concluding Remarks

In this post and the last, I have tried to defend the independence, integrity, and internal coherence of IHL and IHRL as well as their parallel application during armed conflict. IHRL continues to apply during armed conflict, its content informed but not determined by IHL and responsive to the factual circumstances of its application. At the same time, IHL has its own object and purpose, and should be interpreted accordingly.

It remains my view that the object and purpose of IHL require its application to first strikes between States and armed groups. Human rights scholars, practitioners, and advocates should not resist the application of IHL to such first strikes. Instead, they should insist on the parallel application of IHRL to such first strikes. The mistaken view that IHL displaces or reduces the protection of IHRL is the true “Trojan Horse.” We should burn it to the ground.