Theoretical boundaries of armed conflict and human rights
New York : Cambridge University Press, 2016
Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is “perhaps better described as the law of ‘human rights in armed conflicts’”? To answer yes, David Luban argues, amounts to a reinterpretation of IHL that drifts far from its history. This reinterpretation is what he labels human rights thinking (to distinguish it from doctrinal specifics). In its origins, IHL was not designed to protect human dignity, but to reduce human suffering; it was a form of disaster relief. Human rights law, by contrast, originated as a blueprint for the kind of peacetime societies that would no longer plunge the world into what the UN Charter calls the “untold sorrow” of war. Nevertheless, law changes. Perhaps the nature of IHL has evolved over time in the direction of human rights thinking, and should evolve that way. That is the view he defends – with some qualifications – in the final sections of this essay. First, he explores the very different genealogies of IHL and human rights law, and explain how human rights thinking migrated into IHL. He attributes the migration to international criminal law, military occupations, and reactions to the U.S. war on terrorism. In the final sections, he explores two ways human rights thinking can be pursued in wars.