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

      —Kenneth Roth (Human Rights Watch 2004a)

      The laws and customs of war have changed markedly over the centuries. The traditional focus on interstate wars has broadened to include civil wars, insurgencies, and other armed conflicts. Some criteria have faded (just intention, formal declarations of war), while others (discrimination, proportionality) have taken their place. In the 1970s, the whole body of law concerning the conduct of war was rechristened “international humanitarian law,” or IHL. Humanitarian law continues to evolve. This shouldn’t be surprising. The character of war has changed—and continues to change—in ways that demand more attention to the protection of individuals caught in its path.

      Unfortunately, the law of war hasn’t changed nearly enough. Its focus is too narrow. It demands that we ask whether belligerents are justified in entering a war, and, if so, how they should comport themselves during the war’s execution. These questions are critical to any legal or moral evaluation of war. However, it is not my aim to address these, at least not directly. I propose instead that we focus much more on the earth-shattering ways war affects those directly impacted by it: soldiers, but especially civilians. It’s not as if IHL doesn’t calculate the effects of war on civilians. It does. However, it does so largely from the perspective of the state’s actions, not from the perspective of those who are terrorized or killed or have their lives thrown into disarray by war. As the Hague Conventions put it, the goal is “to diminish the evils of war so far as military requirements permit.”¹ The law was designed as a process of weighing and judging humanity in light of military necessity. It demands “no unnecessary damage, not one more civilian than necessary” (Kennedy 2006b:90). This approach diminishes and demeans those individuals whose lives are destroyed or disrupted by war.

      We have at hand the conceptual and moral tool to give civilians their due: the notion of human rights. The suggestion that human rights apply in war isn’t entirely new, of course. International lawyers routinely say that rights apply alongside or in addition to the laws of war. Geoffrey Best (1980), Theodor Meron (2006), Ruti Teitel (2011), and others have described the growing influence of human rights on the substance and style of humanitarian law. War crimes courts and tribunals routinely leaven humanitarian law with human rights ideas and norms. Human rights agencies and advocates enthusiastically take up the cause of rights in war zones. But we have yet to see a systematic account of human rights as an independent body of war norms. This book sets out to make that case. I don’t suggest that human rights should sweep aside humanitarian law altogether. But I do think a rights framework conveys the impact of war on innocent and vulnerable people more vividly than humanitarian law does. This vantage, I hope to show, is crucial as we assess the justification and conduct of modern wars.

      Rights have purchase on a wide range of armed violence committed by state militaries as well as non-state rebels, militias, and terrorists. Soldiers wield raw power over civilians and other soldiers, and the potential for abuse is frightful. The more wars depart from the classical assumptions of humanitarian law, the more relevant rights become. Adherence to IHL is envisioned largely in terms of reciprocity, or the mutually assured compliance of belligerents of roughly equal capabilities. Rights, by contrast, are designed exactly for conditions of unequal power. Compliance derives from public shaming and civil society campaigns; monitoring, exposure, and sanctions by national governments and international organizations; and the threat of national or international prosecutions.

      A human rights model doesn’t simply enjoin combatants to observe the rights of noncombatants. Rights also anchor humanitarian expectations and strengthen the status of civilians. A framework of dignity and sympathy turns our attention from high politics and strategy to the individual experience of war. Rights bore into details of everyday life, helping us to see—really see—civilians. This is no small feat when death and destruction are euphemized into “collateral damage” to “civilian objects,” or are reduced to “gains” and “losses” on the strategist’s ledger (see Rothbart et al. 2012). Rights claims also reverse the traditional order of agency in war. Unlike chivalry or just war, the idea of rights doesn’t hinge on the beneficence or mercy of the sovereign; civilians aren’t simply spared by belligerents or rescued by international peacekeepers. Rights become a vehicle for individual agency and identity, as those who bear the brunt of war adapt human rights ideas to local conditions and carry out their own documentation, monitoring, and public reporting.

      The specificity of human rights lends a bracing realism to our grasp of war. While humanitarian law provides a list of principles to guide decision making (discrimination, proportionality), human rights provide a list of ends to be attained (right to life, free speech, free movement) (see Koller 2005:245). Rights increasingly give form and definition to general concepts in IHL. Humanitarian law prohibits torture, for example, but doesn’t define it. For that, we turn to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1985). The specificity and concreteness of rights makes them harder to evade than general humanitarian injunctions, and requires the warring parties to explain why particular rights should be overridden in particular cases. These same details propel the narratives and images that have become the stock in trade of human rights advocacy.²

      Two caveats are in order. First, I don’t claim that the full suite of rights can be achieved in the midst of armed conflict all or even most of the time. Human rights treaties allow signatories to opt out of certain provisions in time of war or other national emergency. But there is far more room for rights than conventional wisdom suggests. Many legal scholars say we can’t rely on human rights because war is “far too complex and brutal a phenomenon to be capable of being constrained by rules designed for peacetime” (Christopher Greenwood, quoted in Quénivet 2008:11). This strikes me as too sweeping. War is many things, some of which clearly can and should be constrained by rules designed for peace. Sometimes war isn’t even war: governments often try to skirt human rights duties and tap into more permissive laws of war by claiming they’re fighting for their survival. The “war on terror” or the “long war,” for example, would turn the state of exception into the norm. Modern militaries are more vulnerable to human rights scrutiny than we might think. Human rights abuses can exact a heavy price in terms of public support, institutional reputation, and the legitimacy—and success—of the mission. Concern for rights increasingly colors the strategic and tactical choices that states make. Scores of non-state armed forces have also signed human rights “deeds of commitment” as a way to burnish their humanitarian bona fides.³

      Second, the categorical nature of human rights makes them resistant to trade-offs with other goods, but not too resistant (Griffin 2008:37). Rights are rarely absolute. Indeed, taking rights seriously means weighing the human rights costs and benefits of an act—even if that act happens to be war or occupation or a drone-based missile strike. The fact that an army is fighting a defensive war, or a war of liberation or self-determination, carries moral weight as well. Human rights and war are often associated with humanitarian intervention or the responsibility to protect, or “R2P” as it’s colloquially called. Most human rights advocates recognize that sometimes it will be necessary to sacrifice lesser rights in the quest for greater rights. But it’s hard to brook humanitarian warriors who systematically trample human rights on the way to victory. I address these dilemmas in detail in Chapter 6. For now, suffice it to say that specific rights claims weigh heavily in this calculus, emphasizing humanitarian concerns in the planning and execution of specific military operations as well as the overall aims of war.

       Human Rights as War Norms

      Human rights rest on the idea that people should be treated as ends and not as means. Immanuel Kant argued that this was a categorical imperative for us to act as though we were legislators in the “universal kingdom of ends” (Reiss 1996:19). That moral idea has been transformed into modern legal and political obligations. Today we think of rights as legitimate claims or entitlements to certain standards of treatment, usually on the part of governments. These tend to be regarded as important and weighty claims not easily dismissed or traded away. Maurice Cranston (1967:51–52) described them as matters of “paramount importance” responding to “a grave affront to justice.” Many people view human rights claims as “political