This article discusses the decline of the multicultural doctrine that has governed Western political philosophy and practice in the last part of the 20th century. This decline is felt in the USA as well as in EU countries and manifests itself in new cultural restrictions on immigration policy, in stricter loyalty tests for immigrants who seek naturalization and in statutes regulating behavior in public places (such as the anti-veil acts in Europe) and proscribing deviant acts based on religious tradition (such as the American law criminalizing female genital circumcision). This decline is also accompanied by rethinking the theoretical foundations of the multicultural approach. This rethinking was accelerated by the onset of the Islamist—as distinct from Moslem—crisis, but started before the 9/11 events.

The article surveys the state of multiculturalism in a number of Western countries and pays special attention to the cases of the USA, Britain, France, and the Netherlands. The case of Israel is discussed separately because of its unique features as a society plagued by a national conflict. In all these countries the principal issue is how to tolerate intolerant communities, how to treat religious communities whose tenets clash with the democratic and liberal values of the host country and how to balance the rights of the individual against the rights of the cultural group to which that individual belongs.

The author challenges the notion that all cultures are entitled to equal treatment and excludes from this ambit cultures that clash with the values of democracy and human rights. The author denies the notion that consent of the sufferer validates such cultural practices and demonstrates this by referring to the former Hindu practice of Seti—burning a widow alive, with her consent. Such consent is irrevocable and is always subject that it was given under social and cultural duress.

The main brunt of this article is that the norms of democracy, equality, and human rights are not a culture in the ordinary sense of the word, as they are distinct from all traditional cultures and are the result of an intellectual construct founded upon the autonomy of the individual and on a rejection of traditional culture. This is the reason why these liberal norms should supersede any custom, even when based on cultural tradition, when there is a clash between the two. When there is no such clash, a compromise solution ought to be reached resorting to traditional judicial means of balancing contradictory values.

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 non-nationally 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.

Two different theories attempt to reconcile problems of application of international human rights law in time of armed conflict, to the extent that there is a potential conflict with norms set out in international humanitarian law. One, posited by the International Court of Justice, presents international humanitarian law as the lex specialis, a kind of prism through which the concept of “arbitrary deprivation of life” (Article 6(1) International Covenant on Civil and Political Rights) is to be understood in time of armed conflict. In effect, international humanitarian law supplants international human rights law during armed conflict. The other theory, advanced by the Human Rights Committee, views the two bodies of law as additive in effect. Both regimes apply, and the individual benefits from the more favorable one (“belt and suspenders” approach). Both theories profess the fundamental compatibility of the two different legal systems, yet they are predicated upon a method for resolving conflicts between them. Both theories encounter serious problems in their application. The author submits that the difficulty with these attempts to reconcile human rights law and humanitarian law lies with the failure to grasp an underlying distinction: international humanitarian law is built upon neutrality or indifference as to the legality of the war itself. Human rights law, on the other hand, law views war itself as a violation. There is a human right to peace. Because of this fundamental incompatibility of perspective with regard to jus ad bellum, human rights law and international humanitarian law can only be reconciled, as both the International Court of Justice and the Human Rights Committee desire, if human rights law abandons the right to peace and develops an indifference to the jus ad bellum. It too must accept the idea of the acceptability of “collateral” killing of civilians in war, even if the war itself is illegal. The author argues that it is preferable not to attempt to find a neat and seamless relationship between international humanitarian law and international human rights law, in the interests of preserving the pacifist strain within international human rights law.

This article asserts there has been a lack of attention to the impact of cultural diversity within the field of international humanitarian law. Discussions surrounding culture in international humanitarian law have nearly always avoided the central issue of cultural particularism. This has been so in relation to the debate surrounding the emblem, in general surveys of humanitarian law, and in discussions of the laws of war in distinct legal and cultural traditions. The emblems debate, in particular, signals the elusiveness of rigid universality within international humanitarian law. Five elements are suggested to explain the resistance of humanitarian law to contagion by the cultural relativism debate in human rights: the nature of human rights, the distinct normative frameworks of human rights and humanitarian law, the unified conventional basis of humanitarian law, the very broad participation in the humanitarian regime, and the unique role of the International Committee of the Red Cross. While these reasons might explain the fact that the relativism debate in human rights did not readily transfer to humanitarian law, they offer no substantive basis for immunity for humanitarian law to the challenges posed by cultural diversity. Ultimately, the article proposes a legal pluralist approach that recognizes the role of actors in the cultural process of norm-creation. Given the continued violation of the laws of war, the author suggests a need to open the door to cultural diversity in order to generate greater compliance. Without cultural legitimacy, there is a danger that humanitarian law aspires to self-defeating universalism.

This article provides a critical examination of the debate over the relationship between international humanitarian law and international human rights law. On the question surrounding the very fact of co-application, it appears that the dominant view supports the co-applicability of the two legal regimes. Opinion is however far from settled on the scope of application of international human rights law, especially insofar as it relates to the issue of extra-territorial applicability. The approach taken in the event of co-applying the two frameworks to specific circumstances, and whether and how one is to use the doctrine of lex specialis, reveals further questions in need of coherent answers. Finally, there remain particular areas in which the co-application faces challenges that must be surmounted, if it is to prove a useful approach. These include the issues of the so-called “war on terror,” the distinction between the jus ad bellum and the jus in bello, non-international armed conflicts, and more. Whilst the co-application of the two regimes is now almost undisputed, it appears therefore that obstacles remain that must be dealt with in order for the relationship of the regimes to be of a fully harmonious nature.