Published online by Cambridge University Press: 09 January 2020
Writing back in the 1970s, Baxter noted that ‘the first line of defence against international humanitarian law is to deny that it applies at all’. Controversy around International Humanitarian Law (IHL) applicability has been a staple feature of international practice for decades: denials that armed conflicts exist lest ‘terrorist’ adversaries be legitimised; or exorbitant claims that they arise from intransigent problems of law enforcement such as drug-related violence or terrorism. Today, controversies concerning the applicability of IHL, and its significance, are ongoing, and increasingly inextricably bound up with the question of co-applicability with other areas of international law, in particular international human rights law (IHRL). The implications of over- and under-inclusive approaches to IHL applicability depend to a large extent on the approach taken to co-applicable law. On the one hand, the denial of IHL applicability to evade the strictures of that body of law assumes a narrow view of IHL as the only relevant constraining law, the non-applicability of which leaves a legal vacuum to be exploited.
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