We should articulate, defend, and rally around an interpretation of international law that best reflects its underlying values. In general, if States hold a mistaken view about an important legal question then we should resist their mistake. Instead, we should address this concern by insisting on the parallel application of IHRL. Nevertheless, I do not believe that we should address this concern by resisting the application of IHL to first strikes. If these States accept my view that IHL applies to first strikes, then they may erroneously conclude that IHRL does not.

Importantly, Jonathan suggests that we should resist the application of IHL to first strikes, not because IHL actually displaces or reduces the protections of IHRL, but because some States mistakenly believe that IHL displaces or reduces the protections of IHRL. Instead, these two bodies of law each offer important constraints on the use of force and corresponding protections against violence and abuse. The parallel application of IHL does not relieve States of their obligations under IHRL or determine the content of those obligations.

I went on to explain that IHRL applies to first strikes and continues to apply throughout armed conflict. Ome might worry that applying the law of armed conflict to first uses of low intensity force will displace or reduce the protections of human rights law. Two weeks ago, Jonathan Horowitz wrote a serious and thoughtful response to my post, concerned that the application of international humanitarian law (IHL) to first strikes would preclude the full application of international human rights law (IHRL) to first strikes. Such first strikes are constrained by the law of armed conflict, and serious violations of those constraints may constitute war crimes. In late September, I argued that, just as the law of international armed conflict applies to the first use of military force between States, the law of non-international armed conflict applies to the first military operation between States and organized armed groups or between such groups. When powerful States adopt a mistaken view of international law, should we-scholars, practitioners, and activists-resist their view and insist on our own? Or should we regard their mistake as a fait accompli and try to contain its adverse consequences? With Donald Trump poised to become the next President of the United States, I fear that we will all face such questions in the years to come.

Human rights armed conflict