Letter to the Editor: Response to Human Rights in Armed Conflict, Part I

In a previous post, I raised numerous concerns with Prof. Adil Haque’s novel proposal that lowers the threshold for determining what constitutes a non-international armed conflict (NIAC). My main concern was, in short, that Adil’s expansive interpretation would open up troubling opportunities for States to misapply international human rights law (IHRL) to situations of armed conflict. In response to these critiques, Adil wrote (rhetorically):

“When powerful States adopt a mistaken view of international law, should we—scholars, practitioners, and activists—resist their view and insist on our own? Or should we regard their mistake as a fait accompli and try to contain its adverse consequences?”

I couldn’t agree more.  Mistaken views of international law must be pointed out and corrected. To that end, Adil elaborates on when and how IHRL and international humanitarian law (IHL) operate at the same time during armed conflict. His reply is an important and nuanced contribution to the issue.

What I remain in strong disagreement over is Adil’s underlying proposal that IHL should apply even when organized armed groups engage in “minor skirmishes” despite authoritative sources of international law stating that a NIAC exists only when hostilities reach a minimum threshold of intensity. 

In addition to the concerns I’ve already expressed, I have yet to see convincing legal sources that support Adil’s claim (despite some being offered) in a manner that outweighs authoritative interpretations that reject it.  Also, Adil’s commendably sophisticated interpretation of the relationship between IHL and IHRL in many ways undercuts his proposal for lowering the NIAC threshold. When applying IHL to hostilities that don’t rise to a significant level of intensity, he demonstrates that IHRL would largely constrain IHL – so much so that IHRL’s own rules on the use of force would adequately respond to those exigent situations. This is a strong demonstration of why IHRL, not IHL, is the appropriate body of law that applies to minor skirmishes. But it also begs this question: if IHL has nothing significant to offer to low intensity hostilities, then why muddy the waters, especially if States will use IHL in these situations to justify unlawful killings and internment?

Finally, there is little in Adil’s response to my post that assuages the concern that States will misconstrue his proposal for lowering the NIAC threshold to justify behavior that goes beyond the limits of both IHRL and IHL.  Arguing that States need to do a better job at applying IHRL is, in my eyes, insufficient, especially when a novel proposal (with few benefits) could knowingly results in unwarranted death or long-term internment. Moreover, such a legalistic response seems to presume that there is no other way to deal with these problems. Another way to deal with these problems is to take that novel proposal off the table.

Taking a step back to see the forest for the trees, Adil’s proposal also contributes to a trend, both in politics and law, of labelling more and more things as armed conflict. A stern application of IHRL, or the dilution of IHL, is not, in my view, enough to sanitize this shift. By way of example, it is not a far stretch to see how Adil’s proposal, when applied domestically, could easily (and unintentionally) promote the militarization of domestic police and result in the means and methods of warfare creeping from low-intensity violence to all police responses to violence. Samuel Moyn captured well the sentiment of my overall concern in his tweet about my initial post: “Let’s please not turn everything into warfare.”

I suggested in my post, a better approach is to save IHL for the exceptional circumstances it was intended for and to continue to apply IHRL is practical and effective ways. 

About the Author(s)

Jonathan Horowitz

Legal Officer - National Security and Counterterrorism Program at the Open Society Justice Initiative Follow him on Twitter (@J_T_Horowitz).