ASIL on the IHL/IHRL Debate

by Deborah Pearlstein

Had the chance to catch at least one panel at yesterday’s jam-packed annual meeting of the American Society of International Law. Happy to say, it was a good one, and timely: “International Human Rights Law, International Humanitarian Law, and the Implications for Coalition Warfare.” Ashley Deeks moderated, giving a summary of the ECHR’s latest jurisprudence in the area (informative and succinct), followed by former UK legal adviser Daniel Bethlehem, who led off with a terrific précis of the many questions in the field. The panelists all seemed to have a clear, and I think accurate, sense of the cultural lay of the land here. Two points in particular I think now pretty clearly rise to the level of consensus. (To be clear, my metric for consensus is that I took all of the panelists at this particular session to agree, or at least not to disagree; that I myself agree; and that several other thoughtful scholars/practitioners in the field I’ve encountered at other meetings, civilian and military, would tend to agree as well. In short, totally anecdotal.)

First, there’s an enormous amount of scholarship, and a growing amount of case law, that purports to shed light on the relationship between IHRL and IHL, but in fact terribly little of it does the actual provision-by-provision work of analyzing how one might rationally interpret the ICCPR prohibition against “arbitrary” detention as informed by the law-of-war rules for what counts as arbitrary or not. Second, that there is an enormous amount of fear/loathing (my terms, not theirs…. ok, Hunter Thompson’s, not mine) informing the debate on both sides of the divide. Militaries are leery of acknowledging any role for IHRL for fear that admitting the nose will allow the entire IHRL camel under the tent. IHRL scholars/ advocates reject the characterization of much of, for example, U.S. counterterrorism activity as “armed conflict” in any sense, so reject the idea that IHL be understood in any way to compromise the full protection of IHRL.

That leaves us, I think by perhaps necessary implication, with the conclusion that if we had a bit more of the former – point by point analysis – we’d have a bit less of the latter – fear and loathing. Seems at the least to set out a pretty clear agenda for scholars in the field at the very least.

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