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

Nor does special law do justice to the kind of endemic violence that can thrive in the limbo between war and peace. In Congo, for example, the Goma peace agreement formally ended the war in 2008, but there has been little distinction between war and peace since, especially in North Kivu, which is still rocked by waves of killing, displacement, looting, and sexual violence.

      When it comes to modern, high-tech warfare, however, human rights groups have grown noticeably comfortable with humanitarian law. An early example is the Israeli incursion into Lebanon in 1996 known as Operation Grapes of Wrath. Amnesty’s assessment of the seventeen-day air and artillery campaign did not discuss human rights at all (Amnesty International 1996b). Human Rights Watch’s postmortem cited fundamental guarantees of human rights, but its analysis, too, relied exclusively on IHL. Much of the focus was on the IDF’s shelling of the South Lebanon village of Qana, where more than a hundred civilians sheltering in a United Nations compound were killed. Both groups accused the IDF of deliberately displacing hundreds of thousands of civilians in order to pressure the Lebanese government to disarm Hezbollah. Under Article 51(2) of Additional Protocol I, “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Amnesty argued that the warnings were designed as threats, particularly the charge that “any [remaining] presence in these villages will be regarded as subversive” (Amnesty International 1997:9). Human Rights Watch concluded that the IDF language appeared “expressly intended to terrorize the population in the south” (Human Rights Watch 1997).

      Ethnic cleansing on the ground in Bosnia was treated largely as a matter of rights, but NATO’s 1998 air campaign was scrutinized mainly in terms of humanitarian law (Amnesty International 2000). Rights analysts often echoed military language and assumptions. Human Rights Watch conducted its first “battle damage assessment (BDA) mission” (HRW’s own Pentagonese) to gauge damage to civilians and civilian objects caused by NATO’s airstrikes (Docherty and Garlasco 2003:10). Research teams from Human Rights Watch have conducted BDAs in Afghanistan, Iraq, and Gaza as well, gathering ballistics evidence, mapping missile strikes, measuring debris spray and bomb craters, identifying shrapnel and pieces of cluster munitions, and interviewing soldiers and survivors. The technical expertise and detailed reporting that went into Off Target: The Conduct of the War and Civilian Casualties in Iraq (2003) were hard to ignore. The report identified patterns of misconduct and failures to exercise due care, but made no mention of human rights proper. Other rights groups have analyzed accountability for abuses on the military’s or CIA’s own terms. Human Rights First’s Command’s Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan (Shamsi and Pearlstein 2006) studied scores of cases of detainees who died in U.S. custody, many of them clearly homicides. The analysts at Human Rights First didn’t challenge the prerogative of U.S. military commanders or the CIA inspector general to investigate and punish their own breaches, either under the Uniform Code of Military Justice or by referral to the Department of Justice. Rather, the rights group highlighted a yawning “accountability gap” in U.S. practice and suggested measures for improvement:

      deaths went unreported, witnesses were never interviewed, evidence was lost or mishandled, and record-keeping was scattershot. They also include investigations that were cut short as a result of decisions by commanders—who are given the authority to decide whether and to what extent to pursue an investigation—to rely on incomplete inquiries, or to discharge a suspect before an investigation can be completed. Given the extent of the non-reporting, under-reporting, and lax record keeping to date, it is likely that the statistics reported here, if anything, under-count the number of deaths. (Shamsi and Pearlstein 2006:2)

      Today, a sizeable subfield of the human rights movement is devoted to documenting and analyzing the conduct and consequences of war. Leading rights groups have hired specialists in humanitarian law, military weaponry and targeting, arms transfers, counterterrorism, humanitarian emergencies, health and human rights, and international justice. With such expertise and evidence on their side, no one can accuse human rights professionals of abandoning the field to the military’s legal mandarins. Rights experts have gained relevance and access, communicating and, at times, collaborating with armed forces in response to humanitarian crises. No doubt some of the ethos of human rights rubbed off on military officials in the process, but perhaps at the cost of some critical distance on the part of human rights. With regard to the Iraq war, for example, most rights groups remained skeptical of the Coalition’s ad bellum claims—Human Rights Watch flatly denied that the war constituted a humanitarian intervention—but at the same time seemed to endorse the in bello manner of war the Pentagon aspired to, namely using sophisticated weapons to destroy physical power and infrastructure while limiting civilian casualties (Roth 2004).

       Civilians in New Wars

      The recent attention to “new” wars has led many analysts to say that the old rules no longer apply. In such conflicts, material capabilities, strategy and tactics, and ethics and etiquette differ sharply between the warring parties. What is lacking above all, say humanitarian lawyers, is the moderating force of reciprocity. Reciprocity in this case refers to the promise of shared norms as well as the threat posed by roughly equal capabilities. In asymmetric warfare one side’s competitive advantage may be heavy bombing, while the other’s is planting homemade improvised explosive devices, or IEDs. Any restraint that tit for tat might have engendered evaporates. If they’re not playing fair, why should we? As reciprocity has waned, so has confidence in IHL. One skeptic suggests the laws of war may have been relevant in an age of “knights and chivalry” but are ill suited to govern today’s wars (quoted in Cardenas 2010:1). White House counsel Alberto Gonzales (2002) advised President George W. Bush that the war against terrorism was “a new kind of war” that rendered the Geneva Conventions “quaint.”

      Arguments about asymmetry usually portray states as the vulnerable victims of non-state violence (Winter 2011:495). However, embedded in this language of alarm are certain assumptions about civilians as well. One of the leading tropes of asymmetric wars is the blurring of combatant and noncombatant identities. Belligerents often describe noncombatants as “not really civilians” or “not only civilians” (Slim 2008:183). “There are civilians all over the battlefield,” notes David Kennedy (2006b:113–14). “Not only insurgents dressed as refugees, but special forces dressing like natives, private contractors dressing like Arnold Schwarzenegger, and all the civilians running the complex technology and logistical chains ‘behind’ modern warfare … civil affairs officers run after the troops dispensing compensation and apologetic words in a campaign for hearts and minds.” Adam Roberts (2009:19) describes the status of civilians as “multi-faceted and complex: they are both agents and victims; both co-players in the theatre of war and objects of propaganda; both participants in the war economy and protected persons in the laws of war.”

      These characterizations are surely true, but they can read too much ambiguity into today’s wars. It’s a rare civilian who is plagued by divided identities or mired in complicity and guilt. The ICRC People on War Report describes the “total engagement” of societies in war, though more as victims than as perpetrators. A third of the respondents to the ICRC survey reported that their dwellings had been seriously damaged in fighting. A third were driven from their homes. In Somalia, two-thirds of respondents were displaced. In Afghanistan, the figure was 83 percent. Noncombatants reported that sometimes they were “recruited and pushed and compelled to join with combatants, often from all sides,” and were frequently pressured to provide food or other material support to combatants (ICRC 2000:viii). But very few moonlighted as soldiers. Most were hapless bystanders or unarmed refugees with few options.

      As contests between professional soldiers turn into contests for hearts and minds, civilian loyalties are implicated. This is guerrilla warfare redux. “The inhabitant in his home is the center of the conflict,” wrote Col. Roger Trinquier (1964:29), a French commander during the Battle of Algiers. “Like it or not, the two camps are compelled to make him participate in the conflict; in a certain sense, he has become a combatant too.” Michael Walzer notes that the U.S. rules of engagement in Vietnam had “only the appearance of recognizing and attending to the combatant/noncombatant distinction. In fact, they set up a new distinction: between loyal and disloyal, or friendly and hostile noncombatants” (Walzer 1977:193). “You