New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Cardozo Law Review, Forthcoming

Abstract

Recent events, including the “war on terror,” have sparked a debate on what constitutes an armed conflict under international law. Currently there is no authoritative definition of armed conflict in international law, and the debate focuses almost exclusively on how the term “armed conflict” is used in the Geneva Conventions. It has become clear that when a conflict falls outside a core situation of armed conflict, the Geneva Conventions cannot provide a definitive answer as to whether or not it is an armed conflict.

This article looks beyond the Geneva Conventions to the interaction between international humanitarian law (IHL) and international human rights law (HRL) to fashion a new approach to this question. The international community takes the view that IHL is the lex specialis or more specific law and takes precedence over HRL in armed conflict. Professor Balendra draws on this dynamic and on the canon of construction that calls for exceptions to rules to be interpreted narrowly, to develop a two pronged framework. First, in situations in which the application of IHL would lead to derogation from HRL, i.e., IHL acts as an exception to HRL, the term “armed conflict”, as the trigger for IHL, has to be interpreted narrowly. Second, once IHL is triggered, the applicable rules have to be interpreted to deviate as little as possible from HRL. The article concludes that in the context of the “war against terror,” the term “armed conflict” has to be interpreted narrowly but that a more expansive interpretation of armed conflict would be permissible if the protections of IHL were modified to better fit that expanded interpretation. The article concludes by examining how the second prong of the framework is activated if an expanded definition of armed conflict is adopted in the face of contemporary threats to peace and security.

Date of Authorship for this Version

December 2007