Might as Right? The Nature of Laws of War applicable to Targeting and Detention in International Armed Conflicts

Abstract

Do laws of war applicable to International Armed Conflicts (iac s) authorize targeting and detention or do they simply regulate targeting and detention as an exercise of power in war by belligerents without providing authorization? This question has been the subject of debate in the recent past. The traditional understanding of laws of war, simply as a protective regime has come under increasing challenge from claims laws of war authorize targeting and detention in International Armed Conflicts. While these claims have mainly been made to establish in laws of war satisfaction for the requirement of Human rights law for a legal basis for targeting and detention, the transmutation of what in the perspective of laws of war is simply an exercise of power into legal permission has consequences beyond that relationship. It also impacts the relationship between laws of war and jus ad bellum, and more gravely it cloaks what is an otherwise exercise of brute power in war with the garb of legal competence. It transmutes what is simply might into right. The transmutation, re characterizes an iac from the perspective of laws of war as simply a fact, into its legal construct. Therefore, this paper interrogates the nature of the laws of war, to show they simply regulate targeting and detention in iac s without providing legal permission.