ICCPR and IHL
Bobby Chesney and Human Rights First’s Daphne Eviatar debate the extent to which the ICCPR applies in Afghanistan and, in important matters, in regimes of IHL. The back and forth at Lawfare is well worth reading.
Let me be distressingly candid. This is an area in which I find it difficult to get “inside” the legal debate because I find it irresistibly a matter of public choice theory, which is to say, it is simply a political move by political actors to get a new set of standards and decision-makers into something that started out with another set of standards and decision-makers. To be clear, I do think there are important legal arguments and I don’t mean this statement of reductionism to mean that it is a better way of seeing the issue, but I do find it hard to be seized of the legal arguments as legal arguments. I don’t think the two regimes fit together meaningfully, but from the standpoint of public choice theory, the contradictions and ambiguities are a feature, not a bug, because those features automatically create new opportunities to draw in new decision-makers. (I realize this must sound cynical, but … public choice theory? Cynical? But I repeat myself.)
(By the way, I am attending today the Yale International Law Journal and Yale Forum on International Law symposium featuring folks from the Junior International Law Scholars Association. Topic is non-state actors and international law. Very exciting panels; I am grateful to be included as a moderator of the panel on Accountability for International Organizations in Global Governance, and we are about to begin a panel on Kiobel and the Alien Tort Statute. Goodness, these folks are all very smart and frighteningly articulate.)