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Debate (Round 2): A Reply to Rona and Corn

This post is the final post 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: Rona, Corn, and Jinks.   And don’t miss the other posts from Round II.

Thanks to Gabor Rona and Geoffrey Corn for their terrific contributions to our forum on applicable legal frameworks and the “war on terror.” Both raise important considerations of law and policy–and both highlight concerns that I share. As the opening posts in this exchange make clear, the issue is complex in a way that few legal issues are. All sides in the debate advance convincing, seemingly irrefutable, points. Sorting through the details of these claims–and their ultimate significance–will take some time and is certainly beyond the scope of this exchange. For now, I want to highlight four points that should frame the ongoing debate on the topic.

1. IHL should apply as broadly as possible–and the only important considerations are whether the intensity and organization of the fighting poses the sort of aggravated threat to humanitarian values to warrant the applicability of special legal protections. 

IHL applies to all “armed conflicts” between states. The “armed conflict” threshold in this context is remarkably low. For example, any armed contention between states that places a single person in the kind of vulnerable position contemplated by the Geneva Conventions triggers their application. In such conflicts, the rule body of IHL rules apply—e..g, the full 1949 Geneva Conventions for the protection of POWs and Civilians.

This low threshold of application is plausible because there is no counterweight to the humanitarian considerations favoring application. Even in 1949 legal mindset, such matters are appropriate for international regulation. State sovereignty concerns are largely irrelevant because there is an armed contention between sovereign states. And there are no concerns about the optimality, or even the propriety, of the “armed conflict” legal framework because there are no formal collateral legal consequences that follow from characterizing the situation as an “armed conflict.” Unlike the formally pronounced legal “state of war,” the notion of an armed conflict does not displace or even qualify the application of any other body of law. Of course, these rules are largely irrelevant in the conflict with al Qaeda–but the contours of this regime help explain the broad applicability of IHL in other contexts.

IHL also applies to “armed conflicts not of an international character.” See Common Article 3 of the Geneva Conventions. The non-international character of these conflicts relates to their party structure–rather than the territorial scope of the conflict. Conflicts between states and non-state armed groups, as well as conflicts between non-state armed groups, are non-international in the sense that they are not inter-state. This was, in essence, the important international law holding of the U.S. Supreme Court in Hamdan. Given the party structure of these conflicts, the “armed conflict” threshold is elevated to accommodate the sovereign prerogative of states to suppress rebellions and to maintain order. Because the humanitarian considerations favoring application of IHL collide with these sovereignty concerns favoring non-interference (which were far more pronounced in 1949), IHL applies only where hostilities are sufficiently organized and intense to warrant the application of international law. The nature of the limiting principle also necessarily implies that the rules apply whenever the concerned state party recognizes/asserts, formally or informally, the existence of an armed conflict or where the international community recognizes the existence of an armed conflict.

These features of the IHL regime make clear that it is designed to apply broadly–and to do so for a clearly discernible purpose. IHL defines the treatment due vulnerable individuals in the context of organized hostilities. The problem addressed by IHL is the radical inhumanity that all too often characterizes warfare. To address this problem, IHL prescribes a few simple rules that require fundamentally fair and humane treatment. The idea is to establish minimum rules that apply even when arguably no other law does. Given these limited ambitions and given the absence of any adverse legal consequences (see below as well we my original post), IHL should apply whenever fighting erupts between organized enemies.

2. IHRL should also apply broadly–directly governing the treatment of all individuals subject to the jurisdiction of the United States.

International human rights law prescribes the treatment states must accord all persons subject to their jurisdiction in all circumstances. Like IHL, human rights law regulates a broad range of practices common in time of armed conflict–such as killing, detention, interrogation, and criminal trial. Of course, international human rights law governs some of these matters in only an importantly qualified way. Specifically, some human rights treaties allow the suspension of some rights in times of public emergencies, such as armed conflicts, when such suspension is strictly required by the exigencies of the circumstances. This suggests that human rights law is, by design, applicable in time of conflict even if its scope and content might be limited.

The continuing applicability of international human rights law is important–even if the meaning of these rules is often largely determined IHL–because it provides a legal basis for human rights enforcement machinery–including the U.N. Human Rights Council and various human rights treaty bodies.

3. Many commonly invoked considerations are not relevant to the applicability of international humanitarian law (IHL). 

The applicability of IHL, of course, turns on whether the hostilities with al Qaeda are properly characterized as an “armed conflict.” The important question of whether the “war model” is the most effective approach to counter-terrorism is irrelevant the applicability of IHL. As a conceptual matter, the propriety of any given conflict has no bearing on whether a conflict in fact exists. Moreover, it is perverse to argue that a poorly justified war may be fought free of the constraints that would govern wars fought for more sound reasons. In short, opposition to the “war model” is a bad reason to oppose application of IHL. Another example is the debate over the continuing validity of the self-defense claim advanced by the United States in its struggle against al Qaeda and affiliated groups. Jus ad bellum considerations are, of course, formally distinct from questions of jus in bello. Even if military operations by the United States are somehow inconsistent with the relevant jus ad bellum, those operations (assuming they are sufficiently intense and directed against a sufficiently organized entity) should be governed by IHL. The point is that the necessity and proportionality of the U.S. military response need not be established to conclude that this response is subject to the constraints of IHL. And, finally, questions about compliance with IHL clearly have no bearing on the applicability of IHL. How broadly the U.S. defines enemy combatants, how broadly the U.S. defines “direct participation in the hostilities” by civilians, and how broadly the U.S. conceptualizes the battlefield should have no effect on whether U.S. actions that purport to treat persons as “the enemy” should be governed by IHL.

4. The notion of “competing legal frameworks” should be rejected.

As I develop at some length in my original post, the proper legal approach, in my view, is that both IHL and international human rights law apply broadly to U.S. actions in its conflict with al Qaeda. More specifically, IHL, if applicable, does not displace or trigger the application of any other body of rules including international human rights law or U.S. constitutional law. No rule in IHL requires the warring parties to abrogate any rights-protecting scheme otherwise recognized in its law. And the claim that IHL empowers warring parties to take actions that would otherwise be illegal is impossible to square with the text, structure, and history of contemporary IHL.

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About the Author

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