The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict

Abstract

The idea of co-application of international humanitarian law and human rights law has drawn a tremendous amount of academic attention and a huge amount of innovation in international and domestic jurisprudence. Yet in the current headlong approach into convergence, rights and rights institutions may carry risks to the very goals many humanitarian-minded international lawyers seek to achieve. This article takes a bird’s-eye view of the debate and questions whether it is a good thing to insist on the extraterritorial applicability of human rights to armed conflict situations. In doing so, the article argues that parallel application is equally as bad for the Iraqi civilian as it is for the American soldier. As we pull back the layers of legalistic argumentation, the real role of rights discourse and the real function of human rights law on the battlefield seem much less thought-out than leading scholars suggest, and the implications for this new approach to international law seem much more problematic than the current debate on the issue presents.