Document Type

Article

Publication Date

2004

Abstract

Both international and domestic law take as a basic premise the notion that it is possible, important, and usually fairly straightforward to distinguish between war and peace, emergencies and normality, the foreign and the domestic, the external and the internal. From an international law perspective, the law of armed conflict is triggered only when a armed conflict actually exists; the rest of the time, other bodies of law are applicable. Domestically, U.S. courts have developed a constitutional and statutory jurisprudence that distinguishes between national security issues and domestic questions, with the courts subjecting government actions to far less scrutiny when those actions are taken in the name of national security.

This article asserts that these distinctions are no longer tenable. In almost every sphere, the process of globalization has problematized once straightforward legal categories, but this is nowhere more apparent and more troubling than in the realm of armed conflict and national security. September 11 and its aftermath have highlighted the increasing incoherence and irrelevance of these traditional legal categories. Shifts in the nature of security threats have broken down once tenable distinctions between situations of armed conflict and situations of internal disturbance that do not rise to the level of armed conflict, between states and non-state actors, between combatants and civilians, between geographic zones in which conflict is occurring and zones in which conflict is not occurring, between temporal moments in which there is no conflict and temporal moments in which there is conflict, and between matters that clearly affect the security of the nation and matters that clearly do not.

The breakdown of these once straightforward distinctions has allowed the U.S. government to argue, among other things, that detainees at Guantanamo may be held indefinitely without charge; that even U.S. citizens may be designated unlawful combatants by executive fiat and held indefinitely without charge or access to attorneys, and that the U.S. may kill any suspected terrorist in any state on earth at any time. In response to these arguments, many in the human rights, civil rights and international law communities have struggled to insist on the continuing viability of the law of armed conflict's traditional boundaries, since the erosion of these boundaries has had (and will almost certainly continue to have) a disastrous effect on basic rights and vulnerable populations.

But the erosion of boundaries is an inescapable social fact, and this article asserts that it needs to be candidly acknowledged, rather than denied. To say that the erosion of traditional boundaries is in inescapable fact is not to minimize the degree to which it is nonetheless genuinely cause for alarm. The existence of reasonably clear boundaries between conflict and non-conflict, combatants and civilians, and lawful and unlawful belligerents is what allows us to determine which legal rules apply, and, more critically, allows us to identify people and rights meriting protection. As traditional categories lose their logical underpinnings, we are entering a new era: the era of War Everywhere. It is an era in which the legal rules that were designed to protect basic rights and vulnerable groups have lost their analytical force, and thus, too often, their practical force.

In the long run, the old categories and rules need to be replaced by a radically different system that better reflects the changed nature of 21st century conflict and threat. What such a radically different system would look like is difficult to say, and this article does not attempt to describe what such a new system might look like. This article does suggest, however, that at least on an interim basis, international human rights law may provide some benchmarks for evaluating U.S. government actions in the war on terror. Unlike domestic U.S. law and the law of armed conflict, human rights apply to all people at all times, regardless of citizenship, location, and status. Although human rights law permits derogation in times of emergency, it also outlines core rights that cannot be eliminated regardless of the nature of the threat or the existence or non-existence of an armed conflict. Applying international human rights law in both domestic and international contexts would not solve all the problems created by the increasing irrelevance of other legal frameworks, but it would provide at least a basic floor, a minimum set of standards by which international and domestic governmental actions could be evaluated.

Publication Citation

153 U. Pa. L. Rev. 675-761 (2004)

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