I. Classifying Armed Conflicts

A first concern was the crux of applying IHL to today’s armed conflicts. Both Helen Duffy and Ziv Bohrer highlight the difficulties in classifying armed conflicts.Footnote ¹ Bohrer speaks of a felt ‘classification crisis’; Duffy diagnoses a ‘classification conundrum’ epitomised by the recent armed conflict(s) in Syria. Classification becomes a challenge because the realities of contemporary armed conflict do not neatly fit with IHL’s traditional categories, above all not with the bifurcation of IACs and NIACs that we find in existing treaty law. Different layers of conflict exist at the same time for which the law provides different normative guidance, partly depending on random circumstances. Some scholars have therefore suggested abandoning altogether the established classification between IAC and NIAC.Footnote ² Ziv Bohrer explicitly argues along that line. He points out that the importance attached to the distinction between IAC and NIAC is a rather recent phenomenon and that the customary rules of IHL are identical in IACs and NIACs, so that a distinction is without merit here.Footnote ³ Helen Duffy sympathises with the proposal to overcome the division between IACs and NIACs without actually advocating it.Footnote ⁴ She emphasises that, in any event, the law’s evolution has diminished the significance of the bifurcation between IAC and NIAC. In contrast, Janina Dill suggests even further and nuanced differentiations among diverse types of IACs and NIACs to grasp the full spectrum of conflicts that we actually observe in the twenty-first century.Footnote ⁵

All three authors confirm that these classification challenges do not constitute a severe crisis. Ziv Bohrer argues that the history of IHL could be viewed as one continuing classification crisis. New developments in warfare have always drawn the established legal framework into question and required the adaptation of existing rules. Accordingly, Bohrer regards the current confusion about the applicability of IHL as the normal state: ‘Current uncertainty is, in part, chronic, stemming from the nature of “law” and of “war” which does not allow for a neat fit between war-related legal classifications and real wartime situations. This is not a crisis, but a fact of life.’Footnote ⁶

Duffy and Bohrer’s approach to classification exhibit similarities – both acknowledge the complexities of classification that emerge under the lex lata and advocate case- and context-sensitive solutions. Moreover, both argue that legal solutions must be found through interpretative adaptations of existing law. Helen Duffy and Ziv Bohrer differ, however, on the reservoirs for the solution. Bohrer suggests finding the answers within IHL itself. According to him, the ostensible gaps in IHL are, in fact, merely ‘perceived gaps’, because there is a long-standing IHL technique for addressing such situations. According to the adaptation principle, existing norms of IHL can and must be used in order to adapt IHL to new situations so as to provide normative guidance in line with what is already established.Footnote ⁷ According to Bohrer, it is inevitable that there is an ‘incomplete fit between wartime situations and the legal concepts aimed at addressing them’.Footnote ⁸ Helen Duffy has a different point of departure. She starts from the view, generally accepted in legal scholarship, that IHL and IHRL are in principle applicable, and she is therefore open to finding legal solutions by resorting both to IHL and IHRL – a difference between both authors we will turn to shortly.

To sum up, a conclusion of the Trialogue is that the mere fact of difficulties in applying established IHL categories to contemporary wartime situations should not be regarded as a crisis of law applicable to armed conflict. Such law has always struggled to adjust to new situations and related challenges. The resulting uncertainty cannot be avoided, but must be addressed by continuous efforts to transpose existing rules to new situations in order to find adequate solutions. Controversies persist when it comes to determining where and how the line between war and peace, between IHL and IHRL, should be drawn and how activities that seem to fall into a grey zone shall be addressed.

II. Norm Conflict between IHL and IHRL

Most legal problems tackled throughout this book are linked to the question of how the two bodies of law relevant in situations of armed conflict can and should be coordinated. An undertone of the general academic debate appears to be that IHL and IHRL can generally operate more or less in harmony with each other. It is asserted that both regimes convergeFootnote ⁹ and stressed that they are ‘complementary’.Footnote ¹⁰ The notions of ‘interoperability’Footnote ¹¹ and – as spelled out by Helen Duffy – ‘co-applicability’ also point towards the possibility of harmonious coexistence of both regimes.Footnote ¹² Many have stressed that some sub-fields, such as the different regimes on detention,Footnote ¹³ may be irreconcilable. However, the prevailing overall perception is that ‘contemporary IHL has become increasingly similar to international human rights law’.Footnote ¹⁴

Whether the general relationship of IHL and IHRL can, in fact, be reconciled so as to be seen as harmonious or whether it has to be seen as one of conflict remains a subject of dispute among the authors. Ziv Bohrer argues that there is a regime conflict between IHL and IHRL which he regards as the ‘actual crisis’.Footnote ¹⁵ Two normative systems, supported by different factions, propagate competing regulatory paradigms and struggle ‘over the power and authority to speak in the name of wartime international law’.Footnote ¹⁶ This regime conflict has a hegemonic character in that two particular systems purport to represent the generally preferable approach.Footnote ¹⁷ Such hegemonic struggles are mainly about definitional power.Footnote ¹⁸ Definitional power is crucial because the legal vocabulary in which we describe a situation introduces normative background assumptions. For example, speaking of ‘combatants’ or of ‘terrorists’ has completely different normative overtones.

Ziv Bohrer depicts this clash of regimes as the result of a confrontation between two opposing camps, reflecting a deeply entrenched ‘faction mentality’.Footnote ¹⁹ On the one side, he places supporters of ‘hardline IHRL advocacy rooted in a vision of IHRL as being at “the heart of [all] international law”’.Footnote ²⁰ On the other side, ‘hardline Statists’Footnote ²¹ strongly oppose human rights application to armed conflict situations, accusing – as Marko Milanovic puts it – ‘the enthusiasts of being a utopian, dovish bunch of fluffy, mushy-wushy do-gooders, who know nothing about the realities on the ground in wartime’.Footnote ²²

Helen Duffy, by contrast, rejects the notion of a regime-wide normative conflict between IHL and IHRL. Her conception of a co-application of IHL and IHRL aims to reconcile both regimes and thus to move beyond the two camps dichotomy.

Janina Dill, like Ziv Bohrer, also diagnoses a substantive norm conflict between IHL and IHRL, but does not focus on the sociology or politics of the actors propagating either IHL or IHRL. She seeks to resolve the conflict on a theoretical level by establishing a moral division of labour between IHL and IHRL.

The authors’ assessments vary significantly, and they situate the potential normative conflicts between IHL and IHRL differently. Ziv Bohrer sees a generalised regime conflict, Helen Duffy perceives a norm- and context-specific conflict, and Janina Dill addresses the moral conflicts that come with the competing demands of IHL and IHRL.

III. Legal Mechanisms of Coordination

These potential conflicts raise the question of how the (partly) competing demands of IHL and IHRL can be reconciled. To a significant extent, this is a technical legal question which raises methodological issues of regime coordination.

The authors of this Trialogue present quite diverging accounts of how IHL and IHRL can, from a legal perspective, be coordinated. Helen Duffy provides a comprehensive analysis of the practice as well as of the academic debate on such legal mechanisms of coordination. She shows that the co-application of IHL and IHRL to armed conflict situations has emerged as the new normal. Some even consider that the ‘momentum behind the complementarity is too powerful to reverse’.Footnote ²³ The initial step of such coordinating attempts is the quest to avoid regime conflicts by means of ‘harmonious interpretation’.Footnote ²⁴ Where such conflict avoidance is not possible, another approach is the application of the lex specialis principle to which the ICJ referred in two decisions.Footnote ²⁵ However, the usefulness of the lex specialis approach has been widely questioned, because it seems too sweeping.Footnote ²⁶ Even the ICJ has avoided referencing the lex specialis concept in a later decision.Footnote ²⁷

Duffy suggests that the current debate and legal practice have become more nuanced. It is widely accepted that the prevalence of one or the other set of rules is not regime dependent, but rather rule specific. That means that we cannot decide on the applicability of IHL to a given situation in general and then apply all of its rules, regardless of further specificities of the concrete situation at hand. Rather – and this is the core of Helen Duffy’s approach – we must take a look at the concrete provisions that are at stake and at their interaction.Footnote ²⁸

Moreover, Duffy shows that situations cannot easily be placed into either the IHL or the IHRL realm. It is not sufficient, for example, to circumscribe in broad geographical terms whether a situation takes place within an armed conflict. Rather, a much more fine-tuned approach is warranted.Footnote ²⁹ ‘It’s contextual and it’s complicated’,Footnote ³⁰ as Andrew Clapham points out.

Helen Duffy suggests a framework of co-applicability that relies on a norm by norm and context by context analysis.Footnote ³¹ First, she identifies the potentially relevant rules for guiding a specific conduct. Secondly, she asks for the particular context in which these rules shall be applied. Thirdly, she determines which rule provides the more specific regulation for a concrete situation and which should, therefore, be the priority rule to provide normative guidance in the concrete situation. Fourthly, Duffy points out that even though one rule has been identified as having priority, this does not mean that the secondary rule becomes irrelevant. Rather, there is ‘an ongoing dynamic interrelationship’ so that the background rule remains relevant for informing the interpretation of the other rule that enjoys priority.Footnote ³²

Thus, Helen Duffy shows that sufficient legal, interpretative techniques do exist to bring IHL and IHRL together and to coordinate them in a legally sound manner. According to her, a coordination of IHL and IHRL no longer takes place at the level of overall regimes. Such coordination has become more nuanced and has permeated from the macroscopic level of overall regime interaction to the microscopic level of rule selection and rule application in concrete cases.

In the Trialogue, Helen Duffy’s approach does not go unchallenged. Her approach of co-application is rejected by the other two authors. Against her rule- and context-based method of coordination, Ziv Bohrer and Janina Dill defend approaches that entirely displace the other regime, under specific circumstances. Ziv Bohrer, based on analysis of State practice that, as he contends, was dominant until around 9/11 (2001), argues for an IHL-specific adaptation approach. He suggests that normative guidance in armed conflict situations should be sought primarily in the rules of IHL. In this sense, IHRL should be displaced in armed conflict.

Janina Dill draws the line differently. In contrast to Bohrer, she does not suggest a general displacement of IHRL in favour of IHL, but proposes nuanced criteria for choosing the proper legal regime. Based on a moral analysis, to which we will turn in more detail shortly, her claim is that IHRL prima facie is the better law to provide normative guidance to soldiers in armed conflicts because it is more in conformity with moral demands. However, Dill points out that where the intensity of conflicts increases, IHRL turns out to be deficient. IHL therefore becomes the preferable legal regime where armed conflicts become ‘protracted’.Footnote ³³

For Helen Duffy and Janina Dill, intensity plays a significant role. But while for Duffy the intensity of conflicts is but one criterion for determining which rule gets priority in particular contexts, it is the crucial criterion for Dill for choosing the application of the entire regime of either IHL or IHRL.

All three approaches make different claims as to whether their position represents the lex lata. Helen Duffy alleges that her account of co-applicability reflects the current state of positive law. Bohrer acknowledges that Duffy’s account reflects a mainstream sentiment that IHL and IHRL must be co-applied, but he asserts that his competing conception of an adaptation approach which requires us to apply IHL, not IHRL to armed conflict situations, was – at least until recently – the prevailing understanding. According to Bohrer, this view continues to linger and is therefore the correct understanding of the law. Janina Dill, by contrast, does not make any claims as to whether her position reflects established law, because – as a moral philosopher – she is concerned with the underlying theoretical principles.

IV. Normative Perspectives

It has been observed that ‘“regime interaction” cannot be meaningfully reduced to technical coordination’.Footnote ³⁴ Rather, coordination and interpretative choices depend on underlying normative convictions that are usually not openly brought to the fore. Such normative choices are crucial for all three approaches presented in this Trialogue. Janina Dill undertakes an analysis and assessment from a moral point of view – normative arguments are centre stage for her. This is similar for Ziv Bohrer, whose main argument is that IHL furnishes the better protection of individuals. Normative choices also matter for Helen Duffy’s account of co-application. Although Duffy highlights that a harmonious co-application of IHL and IHRL is in principle often possible, there is no dispute that potential conflicts between both regimes may emerge. These conflicts are then carried out at the level of the interpretation and application of specific rules. The process of ‘prioritisation’ is in itself an interpretative endeavour which is necessarily creative.Footnote ³⁵ Moreover, both legal regimes continue to follow quite different logics, which – despite a general trend towards convergence – may lead to significantly different results. Above all, IHL allows the curtailment and, in the end, even the annihilation of individual rights of civilians because of the military advantage this may provide. Such a balancing of innocent lives against other political values is, of course, alien to human rights law. It is therefore a significant difference whether, for example, a drone strike against a leading terrorist falls under the IHL or under IHRL paradigm. In the former paradigm a strike might, depending on the circumstances, be justified; under the latter most certainly not. In the drone strike example, the assessment of the military benefit and the outcome of the balancing would depend on the weight one assigns to human rights considerations vis-à-vis a specific military advantage – assuming that human rights come into play at all. As this example shows, the legal techniques for coordinating IHL and IHRL are important, but they do not provide answers to the question of which paradigm – IHL or IHRL – should prevail in concrete cases.

It seems as if ultimately the underlying paradigm will forge the interpretation of the law and therefore determine the outcome as much as the simultaneous formal choice of the applicable provisions. What is required, therefore, are choices which States, policymakers, and also scholars have to make.Footnote ³⁶ These choices hinge on the normative considerations which run through the chapters of this Trialogue as a red line.

The three Trialogue authors have espoused different normative visions. Helen Duffy’s context- and norm-sensitive framework for co-applicability does not prefigure the balance to be struck between both regimes. She rejects any hardline approach that would categorically deny the application of one or the other regime to armed conflict situations. Beyond that, Duffy’s framework allows priority to be given either to IHL or to IHRL, depending on the concrete legal norms and their interpretation, on the assessment of their salience and adequacy for concrete situations, and on the evaluation of the particular context. In substance, however, Helen Duffy places more emphasis on human rights, albeit often in situations where no clear rules of IHL exist: ‘If there is no norm specifically directed to the situation, there is no lex, and presumably no lex specialis, and no norm to take priority over another.’Footnote ³⁷ Her conclusion on procedural safeguards governing detention in NIACs, for example, is that they must be governed by a flexible interpretation of IHRL, because this body of law contains detailed requirements whereas IHL does not.Footnote ³⁸ In her reading, thus, IHRL should play a very prominent role (albeit handled flexibly in the light of principles of the interpretation of human rights law).

Ziv Bohrer opposes this approach. Although he does not completely reject the application of IHRL to armed conflict situations, he advocates an IHL-oriented approach. If asked to choose he ‘would prefer some ambiguous middle-ground approach over either two polar extremes of fully and of never extraterritorially applying IHRL in wartime. But such a choice is unnecessary, because there is still another alternative: rely primarily on IHL, having properly interpreted and developed it.’Footnote ³⁹ Thus, Bohrer has more faith in the regulatory and protective potential of IHL. According to his view, the gaps in IHL shall be filled by adapting existing rules of IHL to new situations, but not by filling those gaps with human rights.

Bohrer opposes the ‘righting’ of IHL, by which he understands ‘the massive wartime application of IHRL’. This practice, he finds, ‘gradually caus[es] IHL to cease being an obligations-oriented system’.Footnote ⁴⁰ Bohrer rejects the view that a rights-based approach would increase the protection of civilians, and rather claims that this approach ‘diminishes that protection’.Footnote ⁴¹ In fact, Bohrer argues for a broader applicability of IHL not out of concern for military effectiveness (as is often done in the academic debate), but rather because he regards IHL as providing better protection to the individual. Bohrer enumerates several benefits of an obligation-based system. First, it can easily be applied extraterritorially because ‘obligations are attached to the obligation-bearers and, as such, tend to follow them’.Footnote ⁴² Secondly, the focus on obligation-bearers should make it more likely that the acting commanders actually implement the legally prescribed measures. Rights-based systems, by contrast, refer to the rights of third persons, and are therefore more prone to being disregarded. Thirdly, Bohrer finds obligation-based systems more adequate for protecting the disempowered, those who are incapable of ‘demand[ing] the protection of their rights’.Footnote ⁴³ Fourthly, Bohrer points out that the traditional chivalry narrative, reflected in the status orientation of IHL, has been the ‘basis for imposing certain demanding ethical-legal soldierly duties’.Footnote ⁴⁴ By contrast, the rights orientation effaces that aspect and even incites soldiers to place their individual rights first, as reflected in the debates on ‘force protection’. Overall, according to Bohrer, IHL is the better law to guide armed conflict situations and should – from a normative point of view – be preferred to human rights law.

Janina Dill proposes a division of labour between IHL and IHRL that runs counter to both Duffy and Bohrer’s accounts. She suggests that both IHL and IHRL should be applied to armed conflict, but each under specific circumstances. She proposes – from a moral perspective – a moral division of work between both legal regimes. Here she determines the optimum reach for both regimes so that their respective benefits can unfold while avoiding that their limitations yield negative effects. Dill’s first finding is that IHRL generally ranks better at directing soldiers towards a course of action that conforms to their moral obligations. Therefore, IHRL is the prima facie morally better law for guiding actions in armed conflicts. Once armed confrontations cross international borders, however, human rights law can unfold its benefits only if it is applied ‘symmetrically’. By ‘symmetrical application’, Janina Dill means IHRL should come into play as if ‘both parties to an armed confrontation had a lawful aim’.Footnote ⁴⁵ This is important because under human rights law, curtailments of rights always require a lawful aim. Thus, an unlawful aim – for example a military intervention in violation of the ius contra bellum – would inevitably affect the legal assessment of concrete military actions under IHRL and would normally render such actions illegal, too.Footnote ⁴⁶ As a result, human rights law could not unfold any normative power – Dill speaks of ‘law discharging its moral tasks’ – and guide the behaviour of all parties to an armed conflict, because it would simply not allow any military action by the party acting in violation of the ius contra bellum.

The moral superiority of IHRL, even if it is applied symmetrically, however, is limited to situations where armed conflicts remain of limited intensity.Footnote ⁴⁷ Any increase in intensity of an armed conflict will affect soldiers’ decision-making both in epistemic terms (what they can know) and in volitional terms (what they want). First, intensity of hostilities ‘raises the epistemic barriers to identifying the morally right course of action’.Footnote ⁴⁸ As discussed in the Introduction to this book, IHRL’s focus on the rights of individuals is likely to cognitively overburden the individual charged with applying the law in complex combat situations.Footnote ⁴⁹ Secondly, Dill points out that the intensification of armed conflict ‘renders more acute incurable volitional defects in soldiers’ decision-making’.Footnote ⁵⁰ Soldiers will be under pressure to mitigate risk to themselves and to prioritise military effectiveness. Put simply, by requiring a complex analysis and balancing of rights, the human rights perspective risks compromising military effectiveness which would put the life of the acting soldier at greater jeopardy. This creates an incentive structure detrimental to the protection of individual rights.Footnote ⁵¹

Janina Dill’s central argument is that human rights law is not always inadequate to govern armed conflict situations. Rather, it becomes inadequate only at a certain point, which Dill identifies as the point where conflicts become ‘protracted’.Footnote ⁵² In this situation, IHRL might still – in theory – guide fighters towards the morally better course of action, but in practice, this body of law tends not to be complied with by the fighters due to their knowledge deficits and incentive structures. Therefore, human rights law, although in theory the better law, will tend to remain a dead letter in ‘protracted’ combat situations.

In such situations, and taking into account not only the law in the books but the law in action, IHL becomes the morally better law because it establishes principles that can guide action towards morally better outcomes. In that sense IHL makes concessions, but it does so in order to provide effective legal regulation also for complex combat situations instead of leaving such situations in fact lawless. While IHL’s regulatory approach is less fine-grained and therefore more readily authorises the infringement of individual rights, it fares better in ‘the fog of war’ because it lends itself more to compliance.Footnote ⁵³ Therefore, it is, according to Dill, the morally preferable law where conflicts have risen above a certain intensity threshold.

The substantive divergence of these three approaches shows that there is – maybe unsurprisingly – no common normative position among the authors on which rules should govern situations of armed conflict. However, the three authors have comprehensively surveyed the legal terrain in which the complex norm- and context-dependent decision on the application of IHL or IHRL must be taken. It would be presumptuous to conclude this book with arguments in favour of one or the other option. The legal questions are too difficult for easy answers.

V. Concluding Reflections

The Trialogue about law applicable to armed conflict sought to build on and take advantage of multi-perspectivism. The trialogical setting was supposed to increase our awareness of how some arguments might be viewed differently from a different perspective, and to stimulate engagement with those diverging perspectives. It is hoped that notably value-laden decisions at stake have emerged clearly.

Helen Duffy rigorously analyses the legal evolution over the course of the last two decades, and examines the law as it stands today (according to the prevailing reading). An important contribution of Duffy’s chapter lies in the development of a framework for the co-application of IHL and IHRL. Moreover, Duffy convincingly predicts a trajectory of legal evolution towards further interlocking of both legal regimes.

Ziv Bohrer enriches the debate on the law applicable to armed conflict with three provocative thoughts. First, he refutes the received historical account that the current (perceived) crisis results from a new kind of war. Bohrer shows that the attributes of current conflicts are much less new than usually assumed. Secondly, Bohrer refutes the generally recognised (overly) statist historical account of IHL, showing that the application of IHL to NIACs, including transnational wars, is much older than widely thought. Thirdly, he argues that, counter-intuitively, the co-application of IHRL and IHL diminishes (and does not increase) civilian protection and thus invites us to radically question the role human rights law should play in armed conflict situations.

Janina Dill provides a creative and innovative moral analysis of the IHL versus IHRL debate. Dill forces us to question our most basic moral assumptions on the likely effects of each of these bodies of law. Moreover, she reaches surprising conclusions that run counter to the premises of many protagonists in the IHL versus IHRL debate. On the one hand, she concludes that IHL is the body of law that reaches morally preferable results where armed conflicts have become protracted. On the other hand, she maintains that the currently accepted scope of the applicability of IHL is too broad and that IHRL should be the dominant body of law in many cases which are currently governed by IHL.

This Trialogue has been a conscious attempt to pluralise the relevant interpretive communities around the concrete question of which law to apply in armed conflict. We submit that the direct confrontation of three different approaches in the Trialogue teased out some committed arguments and truly manifested engaged scholarship as opposed to armchair international law. We suggest that – despite the differences summarised above – the Trialogue did reveal the existence of an ‘overlapping consensus’ across disciplines and diverging theoretical approaches, for example, on the law’s ultimate objective to protect individuals. The Trialogue thereby strove for a modest contribution, in a discursive process, to universalising some legal ideas surrounding the ius in bello. At the same time, it meant to celebrate intellectual stylistic diversity and ultimately sought to defy an intellectual monoculture.Footnote ⁵⁴ It is for the readers to judge whether this has worked.