Abstract

http://ssrn.com/abstract=1044261
 
 

Footnotes (82)



 


 



The No-Gaps Approach to Parallel Application in the Context of the War on Terror


Fionnuala D. Ni Aolain


University of Minnesota Law School; University of Ulster - Transitional Justice Institute


Israel Law Review, Vol. 40, No. 2, pp. 563-591, 2007
Hebrew University International Law Research Paper No. 19-07

Abstract:     
This article asserts that a challenge exists in deflecting the prevailing view that a general gap of legal applicability exists in respect of legal regulation of the war on terror. This "gap" is articulated by a focus on a new phenomena¿namely the emergence of Al Qaeda as a nonnationally motivated, transnational terrorist organization whose actions and actors do not "fit" existing legal norms and sanctions. In addressing that challenge, this article will rebut the argument that suggests a legal lacuna exists, and that no appropriate legal tools are available to states and international organizations as they confront the post September 11th context. In particular, the argument asserts that existing legal norms provide sufficient coverage to respond to the conflicts experienced in the contemporary moment, as well as to the state and non-state entities participating in them. The article suggests that clarity about the boundaries between the legal regime of international human rights law and international humanitarian law would assist closing off perceived regulatory gaps. It contends that the usual rationale given in favor of parallel application, namely higher protection for the victims of conflict, substantially underestimates its other valuable policy and instrumental benefits. Specifically, the traditionally vaunted victim centered rationale does not sufficiently weigh the value of affirming consistent rule of law coverage to situations of conflict. The article asserts that while further regulatory measures may be possible and even desirable to confront the contemporary challenges of conflict forms (including terrorism), a combined or dynamic approach to the law of war and international human rights law provides sufficient traction and norm content to address and be relevant to present needs.

Number of Pages in PDF File: 30

Keywords: no gap approach, parallel application, war, terror, AL Qaed, human rights, humanitarian law,

Accepted Paper Series


Download This Paper

Date posted: December 5, 2007  

Suggested Citation

Ni Aolain, Fionnuala D., The No-Gaps Approach to Parallel Application in the Context of the War on Terror. Israel Law Review, Vol. 40, No. 2, pp. 563-591, 2007; Hebrew University International Law Research Paper No. 19-07. Available at SSRN: http://ssrn.com/abstract=1044261

Contact Information

Fionnuala D. Ni Aolain (Contact Author)
University of Minnesota Law School ( email )
229 19th Ave. So.
Minneapolis, MN 55455
United States
612-624-2318 (Phone)
612-625-2011 (Fax)
University of Ulster - Transitional Justice Institute ( email )
Shore Road
Newtownabbey, County Antrim BT37 OQB
Northern Ireland

Feedback to SSRN


Paper statistics
Abstract Views: 1,168
Downloads: 255
Download Rank: 67,511
Footnotes:  82

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.343 seconds