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

the vicissitudes of war.” The 1968 Teheran Conference on Human Rights decried the failure of the Hague and Geneva Laws to deter or prevent war, declaring that “peace is the underlying condition for the full observance of human rights and war is their negation” (Human Rights in Armed Conflict 1968). The Teheran Proclamation (1968) noted that “Massive denials of human rights, arising out of aggression or any armed conflict with their tragic consequences, and resulting in untold human misery, engender reactions which could engulf the world in ever growing hostilities. It is the obligation of the international community to co-operate in eradicating such scourges.” In September 1970 the Secretary General concluded that human rights instruments “may prove of value in regard to periods of armed conflict,” thus anticipating the reporting practices of the Human Rights Committee. That December the General Assembly affirmed that “Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict” (Droege 2008:505).

      During the 1970s “human rights in armed conflicts” became “one of the most popular phrases in the United Nations political vocabulary” (Suter 1976:394). Reflecting general humanitarian sentiment but not the details of rights, the idea helped to rally diplomatic support for the 1977 Additional Protocols. In the 1980s human rights protections were wedded to the expanding peacekeeping efforts. The Declaration of Turku (1990), a private initiative geared toward “situations of internal violence, disturbances, tensions and public emergency” was integrated into UN rhetoric and sometimes practice.¹⁸ The Declaration saw human rights and humanitarian law as the warp and woof of norms designed to “protect the rights of groups, minorities and peoples, including their dignity and identity” (Declaration of Minimum Humanitarian Standards 1995; Droege 2008:7). More recently, “human security” (as opposed to national security) has been the coin of the realm. Since 2000, the UN has adopted more than 300 resolutions upholding human rights in the midst of armed conflict, and UN agencies continue to affirm the salience of human rights laws to the conduct of war and occupation (Doswald-Beck 2013:140).

      While the UN has instituted some enforcement mechanisms, it generally has proceeded cautiously, elaborating IHL rather than supplanting it with new human rights laws.¹⁹ States still dominate the process. Several UN human rights treaties allow individuals to lodge complaints against states, though only if the target state recognizes the competence of the UN to receive individual complaints. The UN is often slow to recognize and respond to crises. The Security Council did not adopt a thematic resolution on civilian protections until 1999, at the end of a decade marked by ethnic cleansing and genocide. Since then, Secretaries-General Kofi Annan and Ban Ki-moon both have criticized the UN failure to adapt to the changing character of war, though the issue remains shackled to the broader question of humanitarian intervention and the protection of civilians, or “PoC.” Even as the UN extols the civilian idea, its own humanitarian aid missions often “struggle over what it means for a peacekeeping operation to protect civilians, in definition and in practice” (Roberts 2009:47).

      The trajectory is similar at the Human Rights Commission, the principal forum for UN human rights diplomacy. The Commission was established in 1946 and reconstituted as the Human Rights Council in 2006. For years, the Commission saw and heard no evil. Out of deference to member states it failed to condemn genocide in Cambodia, mass murder in Uganda, and state terror in the Central African Republic. Sotto voce criticism of the Tiananmen Square massacre and Sudan’s genocidal murders brought the Commission no honor either. But in other cases the Commission/Council has deputized a stream of special rapporteurs, experts, and others to investigate human rights abuses in war. Rapporteurs have been barred entry, deported, harassed, and denounced. They’ve also made a difference, spotlighting specific allegations as well as general themes: distinction and proportionality, targeted killing, drones, airstrikes, blockades, mercy killings, cluster bombs, perfidy, human shields, urban counterinsurgency, and reparations (Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions 2010; Alston, Morgan-Foster, and Abresch 2008). The Council is still dogged by controversy, most recently over the Goldstone report on the Gaza war and, to a lesser extent, the Alston report on drone warfare. But overall its calendar looks like Max Weber’s slow boring of hard boards: seeking to curb the use of child soldiers, diminish sexual violence during armed conflict, rein in abuses by mercenaries, stop summary executions, end forced displacement of populations, strengthen national human rights institutions, and develop a body of law to bind private military and security companies to protect human rights.²⁰

       Constituting Civilians

      Human rights norms don’t merely shore up noncombatant immunity against military necessity. They also constitute civilians around extramilitary human rights norms, establishing the identity and status of civilians within a rights framework. The Oxford English Dictionary defines constitutive principles as those “having the power of constituting, establishing, or giving formal, definite, or organized existence to something.” Human rights norms, like all norms, establish what Ward Thomas (2001:17) calls “matrices of meaning” that help us make sense of the world. “Hard” laws and institutions as well as “soft” social ideas and practices fix boundaries and set expectations. People who were exposed to violence are now protected. Acts once considered unremarkable are set firmly beyond the pale.

      The idea that civilians should be protected in wartime is, at least in the abstract, an undisputed norm. Derived from classical ideas of mercy and restraint and given moral depth by the just war tradition, protecting civilians has arguably become the linchpin of modern humanitarian norms. Clearly, this isn’t enough. The laws of war have been refined and reinforced, and humanitarian sentiment is running high, yet civilians continue to bear the brunt of war. New wars have become the new killing fields. Since 1990, some eight million civilians, most of them in central Africa, have died from the direct and indirect effects of war.²¹ As many as 100 million people have been driven from their homes or countries. According to the Office of the UN High Commissioner for Refugees (UNHCR), at the end of 2014, 60 million people, half of them children, were displaced by war and persecution. A record 14 million people—many from Syria, South Sudan, the Central African Republic, Ukraine, Pakistan, and Myanmar—were newly displaced in 2014 (Sengupta 2015).

      The scale of violence and dispossession reflects the persistence of anti-civilian ideologies as well as the sheer vulnerability of noncombatants in modern conflicts. From Bosnia to Burundi, civilians have become instruments and objects of violence: as strategic targets, targets of intimidation and terror, victims of collective punishment and reprisal, or of racial or ethnic hatreds. While the overall number of armed conflicts has declined since the early 1990s, one-sided violence against civilians, mostly committed by states, has grown (Stepanova 2009; Eck and Hultman 2007:237). Liberal militaries that ostensibly distinguish between soldiers and civilians also kill large numbers of noncombatants. Daniel Rothbart (2012:115) argues that the militaristic framing of war fuels “civilian objectification,” often with lethal results. Martin Shaw (2004) says that “direct killing of civilians by Western forces has become a normal feature of recent campaigns.” New tactics and technologies, the allocation of risk between combatants and noncombatants, and expansive definitions of what constitutes active participation in hostilities all put pressure on the civilian idea. In high-mobility operations there often isn’t time to warn civilians of impending attacks; airstrikes penetrate ever deeper into densely populated urban spaces; the power of explosives keeps expanding; bomber aircraft, land mines, mortars, and machine guns have proliferated; counterinsurgencies are fought in close civilian quarters (Fellmeth 2008:455).

      The toll also reflects the shifting boundaries of what constitutes legitimate violence in wartime. Civilian protections have ebbed and flowed, but there is no paradise lost. European set-piece wars are considered the high-water mark in this history, but those too could be nightmares for noncombatants. Most tableaux of the Thirty Years’ War, for example, depict uniformed soldiers squaring off on neatly groomed battlegrounds, but Jacques Callot’s “Miseries of War” etchings (1633) present a truer picture of the plunder and abuse of noncombatants, the displaced masses huddled in cities, the war-borne disease that depopulated Europe in the seventeenth century. If chivalry wore thin in Europe, it failed completely in overseas wars of conquest and occupation. Industrialized warfare has been horrific, civil wars grim, state-building