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Saturday, January 14, 2012


To the uninitiated, IHRL is shorthand for International Human Rights Law, and IHL is shorthand for International Humanitarian Law, a.k.a. the Law of War.  Two simple and short acronyms, but their contested relationship represents the biggest controversy in international law at the moment.

Congress recently passed the NDAA (The National Defense Authorization Act for Fiscal Year 2012), and Obama signed the legislation just before New Year’s Day.  Obama had promised to veto the legislation, which expresses a preference for military detention for suspected terrorists, but he relented and agreed to sign the legislation after provisions were inserted in the law that permitted the executive branch to issue waivers to allow detention by civilian law enforcement agencies.  Provisions were also included in the law that clarified that the legislation would not change the existing law regarding executive authority for detention.  It is therefore incorrect to read the law as broadening Executive Branch detention authority.  Legal scholars everywhere have different views about the scope and origin of this existing authority, but whatever it is, it hasn’t changed.

But I want to concentrate on a different aspect.  For some time, there has been a controversy in the federal courts over how to interpret the Authorization to Use Military Force (AUMF) that Congress passed to give the President the power to fight the War on Terror.  The Obama Administration Justice Department has argued that the AUMF ought to be interpreted with international law in mind, specifically IHL.  In other words, unless Congress explicitly states otherwise, it should be assumed that Congress was granting authority to the President that is consistent with international prohibitions on how armed conflict is conducted, i.e. IHL.  See Charming Betsy, etc.  A couple of judges on the D.C. Circuit, see al-Bihani, have protested loudly on this point -- or at least at great length given the pages they devoted to the issue -- arguing that international law is irrelevant for interpreting the AUMF.  (The full D.C. Circuit's view is here, and Lederman's & Vladeck's analysis is here).

But there’s a sub-disagreement too.  Within the group of people who believe that the AUMF should be interpreted in light of international law, some go further and say that the relevant body of international law includes IHRL as well.

I have to confess that I have never fully understood the rationale beyond this claim.  To me, IHRL and IHL cannot apply at the same time -- precisely what this view entails.  IHL is a lex specialis, in the sense that it displaces other bodies of law, including domestic criminal law, with a set of radically different norms based on reciprocity, namely that combatants can kill each other with impunity but must protect civilians and others hors de combat.
I know, I know.  The ICRC thinks that IHLR and IHL can apply at the same time.  What case do they cite for this proposition?  Usually the Israeli Supreme Court Targeted Killings decision.  What did the Israeli Supreme Court cite for this proposition in the TK case?  Nothing.  No case citation.

But forget precedent for a minute.  Why is this view ultimate unconvincing?  Well, for starters, the most basic principles of IHRL don’t make sense in armed conflict, especially the right to life, which is logically irreconcilable with the core principles of IHL.  Combatants don’t have the right to life under the IHL -- that's the whole point of combatancy as a legal concept.  Second, IHL is much older as a body of cultural and legal norms, going back to the Lieber Code and even further back if one counts non-codified, customary prohibitions; IHL includes a robust set of norms that already govern the humane treatment of prisoners and others hors de combat.  Third, if IHRL applies during armed conflict, what need is there to continue developing IHL in the areas of humane treatment (which states still do, in the form of new conventions, treaties, and protocols)?


Kevin Jon Heller said...


I think you're criticizing a straw-man. I know of no scholar who argues that IHRL displaces IHL in areas where there are clear rules of IHL -- targeting being the best example. The argument is that, when IHL is silent on a point, IHRL fills the gap. Nothing in CA3, for example, provides states with the authority to detain in NIAC; it simply requires humane treatment of individuals who are detained. Why is it unreasonable, in your view, to rely on IHRL for detention rules in that context? Do you think it's more legitimate to do what the U.S. does -- and simply analogize (selectively) to the detention rules in IAC? If so, why?

Elizabeth said...

Dear Jens,
Your post is strong and clear, but it is the nuance, complexity and likely interpretive clashes between IHL and IHRL that make this area of law so important. The ICJ's Advisory Opinions in the Nuclear Weapons and the Wall cases are inadequate assertions of the co-applicability of IHL and IHRL; the Israeli Targeted Killings case attempts specificity, but ultimately mixes two different proportionality tests; and the European Court of Human Rights jurisprudence is gradualist and self-contradictory. These criticisms aside, there is scope for gap-filling especially on conditions of detention and checks to ensure lawful detention in non-international armed conflict: Sassoli, Olsen, Shany, Ben-Naftali, and Droege are among the commentators suggesting useful scope for co-applicability of IHL and IHRL. I am not sure I agree that lex specialis leads inexorably to the displacement of IHRL (or of an IHRL interpretive approach) in favour of IHL: its scope depends on your reading of 'derogat'.
Best wishes,

Seth Engel said...
This comment has been removed by the author.
Seth Engel said...

Very important topic to be covering, great post Professor Ohlin.

I disagree with the premise that IHL and HRs can't co-exist during armed conflict. I see no problem with applying HRs during armed conflict, just as the Rome Statute Article 21(3) requires conformity of the Court therein (see its decisions on DRC witnesses seeking asylum). For example, the right to due process isn't waived just because a person is in an armed conflict - that right attaches as a PoW on trial as well.

I think the pertinent question to be asking is how their simultaneous application is similar some sort of contract merging where dominance is given to the lex specialis while the duplicative HR rules get "knocked out."

Jens David Ohlin said...


The additional rules don't come by analogy, they come by custom. The CA3 rules are not the only LOW rules applicable in NIAC, they are just the only rules codified in the GCs.

One of the great advancements of the last few decades is the recognition that most of the IHL/ICL rules of IAC apply in NIAC as well. This trend is recognized in the ICTY jurisprudence, no?

I don't subscribe to the view that there is some great gap of applicable rules in NIAC that needs to be filled by IHRL. That gap only appears if one ignores CIL.

Kevin Jon Heller said...

The IAC rules governing detention are applicable in NIAC via custom? Really? On the basis of what (non-U.S.) state practice and opinio juris?

Kevin Jon Heller said...

The ICTY has said that war crimes can be committed in NIAC. It has certainly never said that IAC detention rules apply in NIAC.

Jens David Ohlin said...

I definitely think there is state practice that combatants can be detained until the end of hostilities in a NIAC. But I note for the record that you want evidence of that CIL norm, which is a bit cumbersome to provide on a blog (and that you clearly believe that none exists).

Actually, I'm more interested in targeting than detention. Do you think there is sufficient evidence of a CIL norm applying the same targeting rules of IAC in NIAC -- combatants/hors de combat/DPH-CFC etc?

Anonymous said...

As on Opinio Juris, there is no contextual limitation of a member's duty to promote universal respect for and observance of human rights (and, therefore, to not violate human rights). Further, UN Article 103 would require this U.N. Article 56 duty to trump any inconsisten international agreement. Moreover, there is nothing in the ICCPR that limits nonderogable rights in the context of war. And with respect to the human right to life, please see 19 J. Transnat'l L. & Pol'y 237, 263-69 (2010), esp. fn. 69, available at

Jens David Ohlin said...

Thanks Jordan.

You might be interested in my reply here:

Anonymous said...

and with respect to so-called lex specialist, please see Harvard On-Line essay available at
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I think you're criticizing a straw-man. I know of no scholar who argues that IHRL displaces IHL in areas where there are clear rules of IHL -- targeting being the best example. The argument is that, when IHL is silent on a point, IHRL fills the gap. Merry Christmas Wishes
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