Chicago Journal of International Law


I want to address the big issues suggested by the tide of our panel- "Developing a Legal Framework to Combat Terrorism"-which assumes the need to fill a large void. While there will always be room for tinkering around the margins of any legal framework, the implication that a new one needs to be developed specifically to combat terrorism is doubtful. At the very least, we should be sceptical of the view that the complementary frameworks of criminal law, human rights law, the web of multilateral and bilateral arrangements for interstate cooperation in police work and judicial assistance, and the law of armed conflict fail to provide tools necessary to combat terrorism. Critics of the status quo seem to have honed in on the law of armed conflict-historically referred to as the laws of war and now known as international humanitarian law, or IHL-as the weak link in this chain. In reality, for many of the same reasons that truth is said to be the first casualty in war, humanitarian law is increasingly misapplied, misinterpreted, misunderstood, and maligned. Let me offer a view on what humanitarian law actually does and does not cover, permit, and prohibit; and in so doing, lay a foundation for understanding why that body of law is worthy of our respect. I propose to divide this discussion into two points. The more obvious one might be entitled, "Apply humanitarian law correctly where it belongs." But the more elusive and, in my mind, more important point is, "Don't assert humanitarian law where it does not belong." I will, therefore, start with point two following a brief introduction to the nature and scope of application of international humanitarian law.