Foreign Assistance Act Resolution and the Lex Specialis Rule

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| Jan 10, 2024

Lex specialis

On the last full day of work before adjourning for holiday recess, Senator Bernie Sanders (I-VT) announced on the floor of the Senate his intent to call a vote on a resolution he filed just before the holiday break. The resolution, filed pursuant to the Foreign Assistance Act of 1961, could influence U.S. security assistance to Israel.

If a vote is called on this resolution after recess, several essential issues not currently addressed in the legislative proposal will likely need to be clarified during debate. In this post, I identify and analyze one of three central issues: the unsettled relationship between human rights law and the law of armed conflict (LOAC).

In a companion article published on Lawfire, I analyze two remaining considerations that are central to the draft resolution: methodological requirements for evaluating LOAC violations from a doctrinal perspective; and the unconstitutionality of the legislative veto.

The draft resolution requests a statement from the U.S. Secretary of State regarding “all available credible information concerning alleged violations of internationally recognized human rights by the Government of Israel.” This reference is consistent with the “human rights and fundamental freedom” frame established in the Foreign Assistance Act.

However, none of the conduct described in the draft resolution involves human rights law. To explain why that is, it is helpful to refer to long-standing U.S. policy regarding the relationship between human rights law and the law of armed conflict. The interaction between LOAC and human rights law, especially in light of the U.S. interpretation of the lex specialis rule, is the central topic addressed in this post.

LOAC as Lex Specialis During Conduct of Hostilities

As the current edition of the U.S. Defense Department Law of War Manual observes, “the law of war, as the lex specialis of armed conflict, is the controlling body of law with regard to the conduct of hostilities and the protection of war victims.” As the references cited by the Manual indicate, this passage summarizes long-standing policy related to selecting the body of law that applies during the conduct of armed hostilities.

This interpretation does not necessarily imply, however, that human rights law ceases to apply altogether during hostilities. As the Manual suggests in a subsequent section, “during armed conflict, human rights treaties would clearly be controlling with respect to matters that are within their scope of application and that are not addressed by the law of war” (emphasis added).

During the conduct of armed hostilities, then, human rights law could apply, but only in relation to conduct governed by this body of law and only if that conduct is not addressed by LOAC as the lex specialis that specifically regulates hostilities. The Manual does acknowledge that various countries have “different perspectives on the applicability of human rights treaties” and that it is important to understand the potential impact of differing interpretations in the context of coalition operations.

A separate doctrinal publication, the U.S. Army Judge Advocate General’s School Operational Law Handbook, reiterates the policy described by the Manual while also detailing two popular interpretations of the relationship between human rights and armed conflict other than the U.S. lex specialis understanding. These alternatives include the “displacement view,” whereby one body of law completely displaces another, and the “complementary view,” whereby LOAC and human rights law are deemed “complementary and overlapping.”

However, the established interpretation—whereby LOAC, not human rights law, “will likely set the rules and provide authoritative guidance for military action”—controls U.S. government functions in domestic and foreign policy (emphasis added).

Defining “Gross Violations of Human Rights” in the Draft Resolution and Relevant Legislation

With the lex specialis interpretation in mind, analysis brings the various references to human rights law reflected in the draft resolution and existing legislative provisions into focus. The resolution requests a statement providing “all available credible information concerning alleged violations of internationally recognized human rights by the Government of Israel.” Near the middle of the resolution, the text refers to the Leahy Law and adopts the terminology of “gross violations of human rights” from that statute.

Near the conclusion, the text of the resolution clarifies that reference to “internationally recognized human rights” earlier in the resolution means “‘gross violations of internationally recognized human rights” as that term is defined in the Foreign Assistance Act of 1961.

The Foreign Assistance Act, in turn, establishes that this term includes, “torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges and trial, [forced disappearance], and other flagrant denial of the right to life, liberty, or the security of person” (emphasis added).

All of the conduct described immediately above can unquestionably constitute a gross violation of human rights (to borrow the term of art reflected in the Leahy Law) if that body of law applies. However, returning to the Israel-Hamas context referred to by the resolution, there is also no question that Israel is engaged in an armed conflict in Gaza. As such, the law of armed conflict—rather than human rights law—applies to the conduct of hostilities.

The “Complementary View” and the Right to Life in Armed Conflict

If the draft resolution were adopted and the Secretary of State properly applied the U.S. lex specialis interpretation to the prompts reflected in the current draft, there would be very little relevant information reflected in the responsive report because Israel is involved in an armed conflict in Gaza and, as such, only LOAC applies.

Pursuant to the “complementary view” described in the Operational Law Handbook, this outcome could potentially be different in a jurisdiction other than the United States. A characteristic example of the complementary view is reflected in General Comment No. 36, published by the Human Rights Committee (HRC) in 2019.

As the HRC general comment suggests, in an illustrative example of the complementary view, conduct that is inconsistent with LOAC “would also violate” the prohibition against arbitrary deprivation of life reflected in human rights law if the conduct results in a person’s death. Such practices include, according to the comment, “targeting of civilians, civilian objects and objects indispensable to the survival of the civilian population, indiscriminate attacks, failure to apply the principles of precaution and proportionality, and the use of human shields.”

Because the right to life in human rights law is non-derogable, this right, according to the General Comment, continues “to apply in all circumstances, including in situations of armed conflict and other public emergencies.” As a separate report published by the UN Office of the High Commissioner for Human Rights notes regarding this complementary view, several “universal and regional human rights bodies take, by and large, the same approach.”

The United States does not.

Lex Specialis Rule Compared to the Complementary View

By adopting the lex specialis approach, the United States has unambiguously rejected the complementary view. In fact, the government did so during the process that eventually led to publication of HRC General Comment No. 36.

Implementing the usual procedure for the development of general comments, the HRC distributed a draft of the text to States and other interested parties along with an invitation to provide input. In its submission, the United States made note of the draft language suggesting that “practices inconsistent with international humanitarian law” (IHL) also constitute an arbitrary deprivation of life pursuant to human rights law (para. 16). The response was simply, “The United States disagrees” (para. 17).

Commentary by the U.S. government goes on to note, “Bearing in mind that IHL provides the lex specialis with respect to the conduct of hostilities and the protection of war victims in any armed conflict, as a general matter the question of derogation would only be relevant as to action within [the scope of application of human rights law], and not with respect to the conduct of hostilities and the protection of war victims in armed conflict” (para. 22, emphasis added).

Notwithstanding the apparent continuity in a time of war resulting from the non-derogation provision reflected in the prohibition against arbitrary deprivation of life, then, the U.S. government expressed the view that LOAC, rather than human rights law, is the appropriate lens through which to consider conduct during armed hostilities.

This interpretation does not foreclose the prospect that human rights law generally continues to apply during armed conflict, but it does establish LOAC, the lex specialis in that context, as the sole set of rules with which conduct must comply for actions that fall within its scope of application.

Lex Specialis Rule Applied to the Draft Resolution

Applied to conduct to which the draft resolution refers, the law of armed conflict, rather than human rights law, provides the exclusive frame of reference. Indeed, the terms of the resolution explicitly implement the complementary view that the United States has long rejected.

After prompting the Secretary of State to provide “all available credible information concerning alleged violations of internationally recognized human rights by the Government of Israel,” the resolution specifies that this prompt includes “the denial of the right to life in the context of the armed conflict in Gaza and the West Bank caused by indiscriminate or disproportionate operations” (emphasis added).

Following the same prompt, the next example reflected in the resolution includes “the denial of the right to life and the security of the person by the blanket denial of basic humanitarian needs, including food, water, medical care, fuel, and shelter” (emphasis added). This second example does not refer directly to “the context of the armed conflict in Gaza” as the first one does.

However, mention of an alleged “blanket denial of basic humanitarian needs” does refer to actions ostensibly taken by Israel in the context of the ongoing armed conflict. Pursuant to the U.S. lex specialis interpretation, the “right to life” that applies to international human rights law does not apply to the conduct of armed hostilities.

For the same reason, reference to the Leahy Law is misdirected. Gross violations of human rights cannot be committed if that body of law does not apply to the conduct of hostilities, and the draft resolution refers only to actions taken in the context of the ongoing armed conflict in Gaza.

Conclusion

Ongoing debates regarding the extent of civilian harm and the role of the United States supporting military operations by Israel in Gaza will undoubtedly continue to dominate the landscape of public and political discourse for the duration of the conflict and beyond. Especially among reports that “more Democrats” are shifting in favor “of a ceasefire and imposing conditions on military aid” to Israel, the debate will become increasingly important for the electoral prospects of the Biden administration. Although this is a momentous discussion, maintaining an accurate understanding of what law applies and how it functions is a vitally important aspect of the ongoing debate.

Pursuant to the lex specialis interpretation of the U.S. government, the law of armed conflict, rather than human rights law, applies to the conduct of hostilities in Gaza. Assessing doctrinal compliance with relevant LOAC rules requires information regarding the intent and knowledge of personnel at the time of an attack rather than anecdotal and speculative conclusions developed afterward.

These factors should feature prominently among lawmakers while deciding whether to support the current draft of the resolution if it is brought to a vote and, more broadly, in the intensifying debate regarding U.S. security assistance to Israel.

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Brian L. Cox is a doctoral candidate lecturer and J.S.D. candidate at Cornell Law School, a visiting scholar at the University of Ottawa Faculty of Law (Common Law Section) in Ontario, and a retired U.S. Army judge advocate.

 

 

Photo credit:  IDF Spokesperson’s Unit