Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict
Geoffrey S. Corn
South Texas College of Law
November 23, 2009
Journal of International Humanitarian Legal Studies, Forthcoming
One of the most complex contemporary debates related to the regulation of armed conflict is the relationship between international humanitarian law (or the law of armed conflict) and international human rights law. Since human rights experts first began advocating for the complimentary application of these two bodies of law, there has been a steady march of human rights application into an area formerly subject to the exclusive law of armed conflict regulation. While the legal aspects of this debate are both complex and fascinating, like all areas of conflict regulation the outcome must ultimately produce guidelines that can be translated into an effective operational framework for war-fighters. In an era of an already complex and often confused battle space, there can be little tolerance for adding complexity and confusion to the rules that war-fighters must apply in the execution of their missions. Instead, clarity is essential to aid them in navigating this complexity.
This article will explore this debate from a military operational perspective. It asserts the invalidity of extreme views in this complementarity debate, and that the inevitable invocation of human rights obligations in the context of armed conflict necessitates a careful assessment of where symmetry between these two sources of law is operationally logical and where that logic dissipates. While acknowledging a legitimate role for human rights norms in relation to the treatment of noncombatants and subdued opposition personnel, I argue that these norms cannot be permitted to influence the legal framework that regulates the application of combat power against operational opponents. Preventing this intrusion is essential to balance the interest of protecting human rights with the fundamental purpose of armed hostilities – securing the prompt and efficient submission of an opponent. Perhaps the most critical premise of this article is that failing to recognize the existence of this boundary will produce a distortion of this historic authority/restraint balance at the core of the law of armed conflict – a distortion that will inevitably be perceived as operationally illogical by armed forces thereby risking the credibility of both bodies of law.
Number of Pages in PDF File: 51
Keywords: Humanitarian Law, Human Rights, Armed Conflict, Law of War, Law of Armed Conflict, Military Law, International Law
JEL Classification: K33
Date posted: November 25, 2009 ; Last revised: August 15, 2010