The Law of Armed Conflict and International Human Rights Law: Some Paradigmatic Differences and Operational Implications

Extract

Debate over the degree to which International Human Rights Law (IHRL) should legitimately inform and alter the interpretation of the Law of Armed Conflict (LOAC) is increasing in intensity. It is not a new debate—G.I.A.D. Draper was considering the issue in 1971, and there have been numerous general statements by the UN recognizing that there is indeed interplay between the two bodies of law. Yet despite a long formative period, the debate—which is now beginning to attract much greater attention jurisprudentially, operationally, and academically—is still being conducted in a procedurally flawed manner. This flawed procedure has two characteristics. First, it is characterized by a process of reverse engineering. By this I mean it is characterized by reasoning froma limited number of particular instances to arrive at a general thesis, followed by the subsequent re-application of this apparent general thesis to other instances. The second procedural characteristic is that the debate is substantially in the form of a one-way argument. I will briefly elaborate on both.