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The No-Gaps Approach to Parallel Application in the Context of the War on Terror

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Ni Aolain, Fionnuala (2007) The No-Gaps Approach to Parallel Application in the Context of the War on Terror. Israel Law Review, 40 . p. 563. [Journal article]

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URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1044261

Abstract

This article asserts that a challenge exists in deflecting the prevailing view that a general gap of legal applicability exists in respect of legal regulation of the war on terror. This "gap" is articulated by a focus on a new phenomena¿namely the emergence of Al Qaeda as a nonnationally motivated, transnational terrorist organization whose actions and actors do not "fit" existing legal norms and sanctions. In addressing that challenge, this article will rebut the argument that suggests a legal lacuna exists, and that no appropriate legal tools are available to states and international organizations as they confront the post September 11th context. In particular, the argument asserts that existing legal norms provide sufficient coverage to respond to the conflicts experienced in the contemporary moment, as well as to the state and non-state entities participating in them. The article suggests that clarity about the boundaries between the legal regime of international human rights law and international humanitarian law would assist closing off perceived regulatory gaps. It contends that the usual rationale given in favor of parallel application, namely higher protection for the victims of conflict, substantially underestimates its other valuable policy and instrumental benefits. Specifically, the traditionally vaunted victim centered rationale does not sufficiently weigh the value of affirming consistent rule of law coverage to situations of conflict. The article asserts that while further regulatory measures may be possible and even desirable to confront the contemporary challenges of conflict forms (including terrorism), a combined or dynamic approach to the law of war and international human rights law provides sufficient traction and norm content to address and be relevant to present needs.

Item Type:Journal article
Keywords:no gap approach, parallel application, war, terror, Al Qaeda, human rights, humanitarian law, transitional justice
Faculties and Schools:Faculty of Social Sciences
Faculty of Social Sciences > School of Law
Research Institutes and Groups:Transitional Justice Institute
ID Code:15661
Deposited By:Professor Fionnuala Ni Aolain
Deposited On:07 Dec 2010 10:42
Last Modified:15 Jun 2011 11:00

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