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International Humanitarian Law and International Human Rights Law$
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Orna Ben-Naftali

Print publication date: 2011

Print ISBN-13: 9780191001604

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780191001604.001.0001

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Human Rights and Humanitarian Law as Competing Legal Paradigms for Fighting Terror

Human Rights and Humanitarian Law as Competing Legal Paradigms for Fighting Terror

Chapter:
(p.13) 2 Human Rights and Humanitarian Law as Competing Legal Paradigms for Fighting Terror
Source:
International Humanitarian Law and International Human Rights Law
Author(s):

Yuval Shany

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780191001604.003.0002

This chapter surveys various developments and counter-developments of the first decade of the 21st century relating to identifying the governing legal paradigm of the ‘war against terror’. Part 1 describes the jurisdictional struggle between the two principal legal paradigms that purport to regulate the international fight against terror: the law enforcement and the armed conflict paradigms. Arguably, many disagreements concerning the lawfulness of specific counter-terrorism, such as targeted killings or detention without trial, are actually disagreements on the applicable legal framework and the stories on the nature of the threat of terrorism that is being offered. Part 2 considers the emergence of a mixed paradigm which borrows contents from both human rights law and humanitarian law. It argues that such normative crossover illustrates the difficulty of maintaining rigid paradigmatic distinctions in light of the complexities of the fight against terror; but also that some key differences in emphasis between the two paradigms nonetheless remain. Most significantly, it is argued that the development of a new mixed paradigm merely recontextualizes pre-existing jurisdictional struggles over the proper legal framework to govern the fight against terror. Part 3 concludes.

Keywords:   international humanitarian law, international human rights law, legal paradigms, war against terror, law enforcement, armed conflict

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