New Essay: The Use and Abuse of Analogy in IHL

New Essay: The Use and Abuse of Analogy in IHL

I have posted a long new essay on SSRN, my contribution to a fantastic collection of essays that OJ’s own Jens Ohlin is editing for Cambridge University Press, The Theoretical Boundaries of Armed Conflict & Human Rights. The essay is entitled “The Use and Abuse of Analogy in IHL,” and here is the abstract:

It is a truism to say that conventional international humanitarian law (IHL) regulates international armed conflict (IAC) far more extensively than non-international armed conflict (NIAC). In IAC, conventional IHL authorizes both targeting and detention and carefully circumscribes their use. In NIAC, by contrast, conventional IHL is silent on the authorization for targeting and detention and imposes only rudimentary limits on when individuals may be targeted or detained.

Like nature, however, international law abhors a vacuum. Many of the gaps in the conventional IHL of NIAC have been slowly filled by custom; the ICRC has concluded that 138 of the 161 customary rules of IHL now apply in both IAC and NIAC – nearly 86%. As a result, it is now common for scholars to claim that, with the notorious exceptions of the combatant’s privilege and POW status, very few critical differences remain between IAC and NIAC concerning the applicable rules of IHL.

From a positivist perspective, the gradual harmonization of IAC and NIAC through convention and custom is unproblematic, because both are formal sources of international law. Since 9/11, however, the United States has consistently taken the position that certain IAC-based rules of IHL can be applied in NIAC via a third method: analogy. The U.S. has argued, for example, that it can target members of any organized armed group that would qualify under IAC rules as a “co-belligerent” of al-Qaeda.

In assessing the legitimacy of such analogies, it is tempting to focus on whether it makes sense to apply a particular IAC rule in NIAC. Is the Haqqani Network’s relationship with al-Qaeda really equivalent to Italy’s relationship with Nazi Germany? Emphasizing the substantive “fit” between IAC and NIAC, however, simply obscures a more fundamental question: where does the U.S.’s authority to analogize between IAC and NIAC come from?

That is a critical question, for two reasons. First, targeting and detention potentially violate the human rights of the individuals they affect. As the International Law Commission has noted, it is not enough for targeting or detention to qualify as a legitimate act of self-defence under Art. 51 of the UN Charter; that targeting or detention must also be consistent with either IHL or international human rights law (IHRL), depending on which legal regime applies. Second, because all of the targeting and detention activities that occur in the NIAC between the U.S. and al-Qaeda take place extraterritorially, each U.S. use of force and each capture operation potentially violates the sovereignty of the state on whose territory it takes place.

Put more simply, by relying on analogized rules of IHL to justify expanded targeting and detention of al-Qaeda, the U.S. potentially runs afoul of a number of prohibitive rules of international law: the principle of non-intervention; the prohibition on the use of force; and IHRL prohibitions on the arbitrary deprivation of life and liberty. What, then, is the legal basis for those analogies?

This chapter’s answer is straightforward: nothing. There is no basis in international law for taking rules of IHL that exist as a matter of convention and custom only in IAC and applying them in NIAC by analogy – which means that the U.S. is systematically violating international law by relying on those analogized rules to target and detain extraterritorially.

I am very rarely happy with essays when I finish them, but I’m quite happy with this one. I’m sure many people will disagree with it, and I’ve likely made plenty of mistakes. But I think the essay addresses a number of difficult issues in IHL/IHRL that deserve further discussion. If I can provoke debate, I’ll be happy.

As always, comments, criticisms, and ad hominem attacks are welcome.

PS:  I should note that the essay was inspired by, and provides a response to, my friend Ryan Goodman’s excellent 2009 article in AJIL, “The Detention of Civilians in Armed Conflict” (pdf here). I highly recommend reading his article before reading my essay.

Topics
Courts & Tribunals, Featured, Foreign Relations Law, International Criminal Law, International Human Rights Law, National Security Law, Organizations
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Jordan
Jordan

The USG should recognize that whenever U.S. military personnel engage in combat (or combat targetings), that the armed conflict has been internationalized and is of an “international character.” Why? — so that U.S. military personnel can have combatant status, combatant immunity for lawful act of war, and pow status.
Clearly, Article 51 of the UN Charter provides consent in advance for lawful measures of self-defense. Responding to ongoing nonstate actor armed attacks emanating from another country is not an attack on the foreign state, an unlawful intervention, an impermissible use of force, etc. See, e.g., http://ssrn.com/abstract=2459649 ; http://ssrn.com/abstract=1718548
And in view of the title to the book — human rights apply during war and are not displaced by the laws of war. E.g., http://ssrn.com/abstract=1710744
http://ssrn.com/abstract=1520717 (see 273-74 n. 94
Under the ICCPR, those who have human rights outside the US, etc., must be in the actual “power or effective control” of the US

Rogier Bartels
Rogier Bartels

Kevin, Interesting essay. I agree with the main idea and your aversion to ‘copying’ of IAC rules to NIAC. It is actually is one of the reasons why I am not in favour of characterising all (or most) transnational violence between States and NSAs as NIACs. That ‘s something we can discuss outside this forum though, but the following comment may be of general use or interest to the readers: The numbers you use in this summary (and in the main body) of your essay for the Customary IHL Study are not correct. I see that you took the numbers from Emily Crawford’s LJIL article, but unfortunately she uses the wrong numbers also (although you correctly say that on the basis of those numbers the percentage is “nearly 86%” rather than the 85%). I recently wanted to refer to the number of rules that the ICRC found to apply in both IAC and NIAC in a draft article and noticed the diverging numbers mentioned in the literature. When teaching, I always use 146 as the number of rules applicable to both types of armed conflict, which I believe was told to me directly by Jean-Marie himself, but admittedly, I have… Read more »