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)?