Divisions Over Distinctions in Wartime International Law

Abstract

Under what conditions International Human Rights Law (IHRL) applies in wartime? Who is a combatant, and who is a non-combatant, given that International Humanitarian Law (IHL) sets very different rules for each? When do armed conflicts begin and end, and what are their spatial boundaries, given that IHL only applies to armed conflict? What conditions distinguish international from non-international armed conflict ("IAC" from "NIAC"), given that distinct IHL corpus governs each? What law applies to cross-border fights between non-State and State forces ("transnational wars"): peacetime international law, IAC-law, NIAC-law, or a new IHL altogether? Since the early-2000s, such war-related legal classifications have been evermore, un-resolvability debated. This chapter addresses that classification crisis. It aims to enrich the discourse with the following five provocative thoughts: First, it refutes the received historical account that the current crisis results from the rise of a new kind of war. The attributes of current conflicts are much less novel than assumed. Second, it refutes the accepted (overly) Statist history of IHL, showing that IHL application to NIAC, and even to transnational wars, is much older than widely thought. Third, it shows that current uncertainty is, in part, not a crisis, rather a chronic fact of life, stemming from the inevitable nature of ‘law’ and of ‘war’. Moreover, the chapter presents a recently neglected IHL norm–The Adaptation Approach–that has long aided IHL in addressing such uncertainty. Four, it reveals the main cause for the current actual legal crisis: for two decades, a struggle has been waging in IHL, driven by the competing attempts of hardline-Statists and hardline-IHRL-advocates to take sole control over its shaping. Current escalating uncertainty primarily stems from these attempts and from the clash between them. Five, the chapter responds by rebutting the fundamental premise of each hardline faction: (a) It shows that the Hardline-Statist drive to loosen wartime legal constraints gravely underrates existing IHL. (b) It argues that IHRL-advocates over-estimate the benefits of extensive wartime application of IHRL; counter-intuitively, the co-application of IHRL and IHL diminishes (rather than increases) civilian protection. The chapter, thus, invites us to radically question the role IHRL should play in armed conflict.