Theoretical boundaries of armed conflict and human rights
New York : Cambridge University Press, 2016
This chapter argues that there is no basis in international law for taking rules of international humanitarian law (IHL) that exist as a matter of convention and custom only in international armed conflicts (IAC) and applying them in non-international armed conflicts (NIAC) by analogy – which means that the United States is systematically violating international law by relying on those analogized rules to target and detain extraterritorially. The first section traces the rise of international human rights law and the evolution of what has been called “transnational armed conflict” in order to explain why there must always be a conventional or customary basis for extraterritorial targeting and detention. Section 2 then explains why the absence of the required conventional or customary basis dooms each of the IAC based rules of IHL that the U.S. has applied in NIAC by analogy.
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