Acting as a Sovereign versus Acting as a Belligerent
In many legal disputes, the selection of one body of law rather than another is outcome-determinative. The situation with targeted killings is no different. Although there are contrary impulses at the margins, in the main a human rights paradigm is more likely to restrict such operations while a law of war paradigm is more likely to sanction it. But the question is when each body of law applies, a question that is not explicitly addressed by either body. By looking at the underlying object and purpose of each body of law, however, an account of their respective spheres becomes apparent. This essay defends the claim that the dividing line is represented by a state acting as a sovereign as opposed to acting as a belligerent. In the former situation, the state acts as a ruler over its subjects and its activities are constrained by human rights law. In contrast, when the state acts as a belligerent during armed conflict, International Humanitarian Law regulates its actions. This essay provides a framework to determine when the state is acting in one mode rather than another: acting as a sovereign involves an unequal relationship (ruler-to-ruled), while belligerency is characterized by two, formally co-equal collectives facing each other in battle. At the closing stage of an armed conflict, the relationship of belligerency may give way to sovereignty, a transition point that is often characterized by the law of occupation. The argument is both normative and descriptive in the sense that the two bodies of law already embody these normative distinctions; therefore their respective application is currently delimited by these existing principles.
Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law
Although international human rights and humanitarian law share common roots in their respective efforts to protect human dignity, the two bodies of law appear to have incompatible requirements in armed conflicts. This article draws on jurisprudence, state practice, and scholarship to describe three approaches to evaluating what is lawful in armed conflicts, explores the consequences of the various applications, and recommends that the United States employ interpretive strategies to minimize discrepancies. In situations where states’ obligations remain irreconcilable, the article endorses a “specificity decision rule” to determine the applicable legal regime.
The War on Terror and the Laws of War: A Military Perspective
FOREWORD, BY MAJOR GENERAL CHARLES J. DUNLAP INTRODUCTION, BY PROFESSOR GEOFFREY S. CORN WHAT LAW APPLIES TO THE WAR ON TERROR? BY GEOFFREY S. CORN, SOUTH TEXAS COLLEGE OF LAW TARGETING OF PERSONS AND PROPERTY BY ERIC T. JENSEN, US ARMY JAG CORPS DETENTION OF COMBATANTS AND THE GLOBAL WAR ON TERROR BY JAMES A. SCHOETTLER, JR., GEORGETOWN UNIVERSITY LAW CENTER INTERROGATION AND TREATMENT OF DETAINEES IN THE GLOBAL WAR ON TERROR BY DICK JACKSON, US ARMY JAG CORPS TRIAL AND PUNISHMENT FOR BATTLEFIELD MISCONDUCT BY GEOFFREY S. CORN (S. TEXAS COLLEGE OF LAW) AND ERIC T. JENSEN (JAG) COMMAND RESPONSIBILITY AND ACCOUNTABILITY BY VICTOR M. HANSEN, NEW ENGLAND SCHOOL OF LAW BATTLEFIELD PERSPECTIVES ON THE LAWS OF WAR BY MICHAEL W. LEWIS, OHIO NORTHERN UNIVERSITY COLLEGE OF LAW