Acting as a sovereign versus acting as a belligerent
Jens David Ohlin
Theoretical boundaries of armed conflict and human rights
New York : Cambridge University Press, 2016
In many legal disputes, the selection of one body of law rather than another is outcome-determinative. The situation with targeted killings is no different. Although there are contrary impulses at the margins, in the main a human rights paradigm is more likely to restrict such operations while a law of war paradigm is more likely to sanction it. But the question is when each body of law applies, a question that is not explicitly addressed by either body. By looking at the underlying object and purpose of each body of law, however, an account of their respective spheres becomes apparent. This essay defends the claim that the dividing line is represented by a state acting as a sovereign as opposed to acting as a belligerent. In the former situation, the state acts as a ruler over its subjects and its activities are constrained by human rights law. In contrast, when the state acts as a belligerent during armed conflict, international humanitarian law regulates its actions. This essay provides a framework to determine when the state is acting in one mode rather than another: acting as a sovereign involves an unequal relationship (ruler-to-ruled), while belligerency is characterized by two, formally co-equal collectives facing each other in battle. At the closing stage of an armed conflict, the relationship of belligerency may give way to sovereignty, a transition point that is often characterized by the law of occupation. The argument is both normative and descriptive in the sense that the two bodies of law already embody these normative distinctions; therefore their respective application is currently delimited by these existing principles.