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

terms: “Violations of international humanitarian law—the laws of war—are not abstract concepts … but the grim material of everyday life. War bursts into the daily activities of a farm, a village, a public bus, or a school with the speed of armed fighters arriving down a path or in four-wheel drive vehicles” (Human Rights Watch 1998c:1). A survey by Amnesty International of sexual violence against women in Colombia couched abuses in terms of racial, indigenous, and gender rights:

      The civilian population has increasingly become a victim in the internal armed conflict, not simply caught in the crossfire, but purposely targeted. This has above all affected those communities most at risk, whose voices are rarely heard: Afro-descendent and indigenous women, peasants, and shantytown dwellers on the outskirts of cities, many of whom are already displaced. Women’s bodies have become marked as military targets, whether because they have not conformed to their “gender role,” because they have challenged prohibitions imposed on them by the armed groups, or whether they are perceived as the “depositories” of the honour of a particular community and therefore a useful target on which to inflict humiliation on the enemy. (Amnesty International 2004b:8)

      The regional human rights courts and the ad hoc criminal tribunals have led the way in articulating human rights standards of conduct. Yet even while ushering new law into the world, the courts have tended to be pragmatic, recasting IHL in terms of rights rather than rejecting or replacing it. Although the ECtHR is often panned for producing “Ivory Tower” rulings, in fact the Court usually tightens rules of engagement and other policies on the use of force that rest on humanitarian law in the first place (Gaggioli and Kolb 2007:124–27). For example, in the Ergi case (involving a civilian killed during a firefight between Turkish soldiers and PKK fighters), the Court ruled against Ankara even though the lethal bullet may have come from a PKK gun. Citing “defects in the planning and conduct of the security forces’ operation,” the Court argued that the responsibility of the state was “not confined to circumstances when there is significant evidence that misdirected fire from agents of the State has killed a civilian. It may also be engaged where they fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimizing, incidental loss of civilian life.”¹¹ In Isayeva (relating to Russian air strikes against suspected insurgents traveling close to a column of refugees on a highway in Chechnya), the Court conceded Moscow’s need to pursue “exceptional measures” in the war, and agreed that some degree of force was justified. While the attacks were plausible within an IHL framework, the Court concluded that they were not “planned and executed with the requisite care for the lives of the civilian population.”¹² In McCann (involving the killing of three unarmed members of the Irish Republican Army by British SAS agents during a stake-out in Gibraltar), a divided court ruled that the design of the operation violated the right to life of the victims. Even if the soldiers believed it was necessary, even “absolutely necessary” to use deadly force “in order to safeguard innocent lives,” the court’s majority said the soldiers’ snap decision to shoot to kill “lack[ed] the degree of caution in the use of firearms to be expected from law enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects.”¹³

      In other cases, reliance on rights introduces altogether new norms. The Israeli High Court of Justice (now the Supreme Court of Israel) in the Targeting Killing case (2006) provided detailed guidance on targeted or “named” killings. Citing dozens of human rights precedents, the High Court insisted on discrimination and proportionality with regard to incidental civilian harm, but also went further, economizing violence in order to maximize the rights of all involved: “among the military means, one must choose the means whose harm to the human rights of the harmed person is smallest. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed.… Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.”¹⁴

      Here a liberal rights norm reins in the idea that combatants can be targeted and killed at any time. Even if they comport with IHL, acts of war can’t be severed from human rights standards of fairness and due process (Kretzmer 2005:186). Again, rights are not absolute. Apprehension and trial are preferable to targeted killing, but the resort to lethal force is still an option. The case also shows how tentative many of these advances are. Only four years earlier the same Israeli court said bluntly that military operational matters were “non-justiciable,” or beyond the reach of the courts (Ben-Naftali and Michaeli 2003a). Nor has reliance on rights ironed out the controversy over such killings. Far from it. Targeted killings carried out by Israel within the 2006 framework remain highly contentious, and usually only scant details are available regarding specific cases.

      Human rights advocates can find themselves torn between the utilitarian culture of humanitarian law and the purer ethos of rights. During the dirty wars of the 1970s, rights groups deliberately avoided the world of IHL, with its “strange and ambiguous (at least to human rights people) concepts such as ‘collateral damage’ and ‘military necessity,’ so that even something as apparently straightforward as the killing of civilians might, though regrettable, not constitute a violation of international humanitarian law.” Relying on IHL could have unintended moral and legal consequences. In Northern Ireland, for example, human rights groups resisted condemning the killing of civilians by the IRA as a violation of humanitarian law rather than human rights law, lest this telegraph their approval of the killing of British soldiers, who might conceivably be targeted under the laws of war. Indeed, embracing IHL would signal that the conflict was a war, and thus legitimize the British government’s “shoot to kill” policy in place of policies geared toward apprehension and arrest (Brett 1998).

      Since the mid-1990s, however, a loose pattern has emerged. Human rights groups have tended to view low-end, internecine, conflicts through the lens of rights, while framing high-tech, “Western,” wars in terms of IHL. For example, Helsinki Watch (later Human Rights Watch) viewed ethnic conflict in Yugoslavia as part of a chain of human rights violations that unfolded over time—from Serbian nationalists silencing press freedoms, to the early purges of ethnic Albanians in Kosovo, to the rise of paramilitary violence (Anderson 1990; Human Rights Watch 1991:602). Having reported from Yugoslavia across the 1980s under the Helsinki system, HRW did not recognize a clean break from peace to war, from human rights to humanitarian law (Helsinki Watch 1986). Even after the Croatian War broke out in 1991, HRW continued to view abuses largely in terms of rights (Helsinki Watch 1991). Amnesty International, too, translated the generalities of the Bosnian war into the details of rights. “War” or “ethnic cleansing” did not unfold as high strategy or pitched battles, but as a rash of killings, expulsions, disappearances, executions, extortion, terror and fear, illegal detentions, beatings, torture, and rapes, skewed investigations and snap trials, and all the daily harassments and humiliations of intercommunal strife (Amnesty International 1992; Amnesty International 1994; Amnesty International 1996a). Conflicts in Africa have similarly been framed in the language of rights. During the civil war in Burundi (1993–2005), for example, Amnesty and HRW both invoked IHL with regard to specific war crimes, but the driving narrative was the crippling effect on civilians (Human Rights Watch 2003a; Human Rights Watch 1998b). Rights coverage of the wars in the Democratic Republic of Congo (1996–2008) tended to reduce the conflagrations to digestible themes: children shanghaied into militias, rape used as a weapon of war, the vast number of persons displaced, and so on. Advocacy campaigns often focused on the massacre of a single village, or even a single family, lest the human costs of war be lost in a sea of statistics (see, e.g., Amnesty International 2009a; Human Rights Watch 2009b; and Refugees International 2013).

      At a minimum, such conflicts “not of an international character” are governed by the Geneva Conventions Common Article 3. Maximalists say that many of the civilian protections of Additional Protocol I have passed into customary law and therefore also apply to all parties regardless how the war is categorized.¹⁵ To be sure, IHL is critical in cases of discrete, prosecutable, war crimes. But in the absence of the kind of organization and command and control that traditional laws of war envision, analysts are drawn to rights. Humanitarian law seems almost too formal or event-specific to capture the extended terror and