Human Rights and War Through Civilian Eyes. Thomas W. Smith

30 mm cannons, followed by attacks on a van attempting to rescue the wounded.²⁶ The gross disparity of power, combined with the callous banter of the gunners during the killings, makes the video disturbing to watch. Even taking into account the fact that one person on the ground appears to be holding an RPG rocket launcher and that a 3-minute version of the video was misleadingly edited, the episode belied official assurances that all the victims were confirmed militants, and cast doubt on the overarching U.S. narrative about the care and precision of attacks. After Pentagon officials defended the killings as within the rules of engagement (ROE) in force at the time, WikiLeaks posted classified versions of the ROE to suggest that wasn’t the case either.

       The Power of Human Rights

      The obstacles to realizing human rights in war are many: deference to the war powers of executive branches, push-back from militaries, and the view that vital issues of national security are ultimately beyond the reach of “peacetime” laws, just to mention a few. Human rights continue to combat the frankly militaristic idea that an acceptable measure of civilian harm is unavoidable and even expected in contemporary war. The more axiomatic and self-evident that belief becomes, the harder it will be to pursue brighter humanitarian hopes. Still, the currency of rights in international thought and practice is formidable and growing. Naturally skeptical of the exercise of power, unfettered by military mores, and singularly humanitarian in aim, human rights norms defend the continuity of rights in dark times, set a high threshold to infringe the right to life, and show healthy skepticism toward the recourse to war, and distrust, perhaps even incredulity, toward military claims regarding the conduct of operations. Rights bring the long-term and cumulative impacts of war into focus, highlighting the terrorization of people even by lawful attacks, and counting the true cost of war.

      CHAPTER 2

      Humanizing the Laws of War

      How dangerous it can be to be innocent.

      —Hannah Arendt (quoted in Owens 2007:72)

      … whatever it is that the law is after it is not the whole story.

      —Clifford Geertz (2008:173)

      A human rights framework rejects the idea that war is a state of exception governed by a law unto itself. Rights protect human dignity “always and everywhere” (Provost 2002:19). The integrity and autonomy of the individual count in every case. To think of people in this way is to resist Thucydides’s tragic maxim that “the dominion of imperious necessities” makes war a “hard master” (Thucydides 1881:222). It is to affirm the intrinsic value of civilians and civilian life. These are people with rights who cannot be used for some military purpose. Soldiers, too, have a right not to be used as cannon fodder (cf. Walzer 1977:137). Juxtapose these categorical imperatives with the more utilitarian designs of humanitarian law, and the law seems wanting. As Louise Doswald-Beck, former head of the ICRC legal division, notes (2004:356), the safeguards afforded by humanitarian law conventions “have now fallen behind the protection provided by HR [human rights] treaties.” This is perhaps a cri de coeur from a field battered by new wars, but the rigor of rights does set them apart from the qualified protections available under the laws of war.

      As noted, the idea that human rights are the law of peace and international humanitarian law is the law of war is hard to sustain given the character of today’s conflicts. These tensions still crop up in the form of turf battles between the regimes, but more pragmatic developments are unfolding within the law itself. Considerations of strategy and victory continue to marginalize human rights, but ideas and practices associated with rights are nevertheless seeping into IHL, rendering it less technical and tactical, less deferential to reasons of state, and more in step with the suffering of the individual victims of war. As Marko Milanović puts it,

      The law applicable in war is no longer solely a law between sovereigns who agree out of grace and on the basis of reciprocity to limit themselves in their struggles to reduce the suffering of innocent people. Rather, human beings embroiled in armed conflict retain those rights that are inherent in their human dignity, which are more—not less—important in wartime than in peacetime. (Milanović 2011a:95)

      Human rights and the laws of war have been loosely associated for decades, but it was not until the internecine carnage of the 1990s that the details of rights started to take hold in customary, and to a lesser degree, treaty law. The legal gap with regard to intrastate wars created an opening for rights, but so did the changing normative terrain. A web of NGOs, intergovernmental organizations and agencies, and progressive states pressed the issue. Human rights courts and ad hoc tribunals began to draw indiscriminately from both regimes. Law and activism have proved mutually constitutive. For example, a consortium of civil society and state actors lobbied the International Criminal Court into existence, albeit with the Court’s legal powers—and its budget—derived through state consent. The ICC now stands both as a forum for adjudicating human rights and war crimes and as a referent for argument and debate about the pursuit of rights in other cases (Roach 2006). As we will see, the legal reach of rights is still hotly contested, particularly in asymmetric conflicts where the power of reciprocity has waned, though here, too, an increasingly coherent and pragmatic movement is pushing the debate in the direction of rights.

       Humanity’s Law

      International humanitarian law has traditionally regulated the use of violence between states, while human rights law has protected people from abuse at the hands of their own governments. But the trend today is to view these two sets of norms and strands of law as complementary, as existing in tandem or in parallel, or as mutually reinforcing, like “belt and suspenders” (Schabas 2007). Human rights courts can adjudicate war crimes that might otherwise go unaddressed, or supplement IHL with extra conditions with respect to the use of force or the protection of noncombatants. Or the two regimes may operate along a continuum in which human rights law applies in milder “law enforcement” situations, but as threats and violence escalate the law of war takes over (T. Smith 2010:25).

      Ruti Teitel describes this process of convergence and complementarity as “humanity’s law.” “The most pronounced change in the international legal system,” she writes, is “the dramatic expansion of humanitarian law’s reach through its merger with international human rights law” (Teitel 2002:359). This view is widely echoed by legal scholars and jurists. The late Theodor Meron (2006) lauded the humanization of humanitarian law under the influence of human rights. Hans-Joachim Heintze describes (2004:791) human rights law as “an intrinsic part of the legal rules governing wars and other emergency situations.” The International Criminal Tribunal for the Former Yugoslavia (ICTY) noted “a slow but profound transformation of humanitarian law under the pervasive influence of human rights.”¹ The Court observed in the Tadić case that “A sovereignty-oriented approach has been gradually supplanted by a human being-oriented approach.”²

      Enthusiasm sometimes gets ahead of practice, but there is little doubt that human rights now leaven humanitarian law in meaningful ways. The chemistry between the two regimes can be awkward, however. Where, after all, is the common ground between the dignity represented by rights and the tragedy represented by the “necessary” violence—including collateral violence against civilians—that is sanctioned by the laws of war? “On a normative level,” notes Audrey Benison, “humanitarian law contemplates a starting point of death, violence, and destruction that is repugnant to the essence of human rights law” (Benison 1999:152). Bill Bowring describes IHL as “intrinsically conservative, taking armed conflict as a given.” Human rights are much more eager to shake off the past. The idea of rights is “revolutionary, scandalous in its inception, inspired by collective action and struggle, and threatening to the existing state order” (Bowring 2009:5–6).

      Each tradition traces a distinct provenance. From the start, the law of war was military law, a “contract between sovereign military powers” (A. Dworkin 2006:224). Book One, Chapter 1 of Grotius’s De Jure Belli ac Pacis (1625) is titled “On War and Right,” referring to the jus ad bellum right of states to launch wars. The “combatant’s privilege” to take human life is as old as the law of war itself. The primary subject of the jus