Human Rights and War Through Civilian Eyes. Thomas W. Smith
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the exception” (Art. 24). (U.S. soldiers accused of atrocities in the Philippines during the Spanish-American War would invoke the Lieber Code in their defense.) Nineteenth-century European law also codified customary restraints on the conduct of war, including the ban on directly targeting civilians, but it, too, privileged formal armies; the combatant’s right to kill would not be usurped by amateurs. Those amateurs tended to be people living under the thumb of occupation or colonial rule. Thus, irregulars and insurgents—and with them any right of resistance—were cast outside the law. The French jurist Amédée Brenet wrote in 1902 that “our goal here is to humanize war, by which we mean to regularize it.” Legal war would be preserved as a formal state pursuit in contrast to degenerate guerilla warfare, “which constituted a certain atrocity … the most terrible aggravation of war” (quoted in Nabulsi 1999:4).
The Hague Conventions (1899 and 1907) struck genuinely humanitarian notes. The Martens Clause in the preamble to Hague II (1899) invokes the “laws of humanity and the requirements of the public conscience.” The Conventions, while high-minded, did not break conclusively with nineteenth-century law and practice. Crafted by the great powers in an age of empire, they were international, not universal. They would apply only to people within the “magic circle” of civilization (Mazower 2006:555, quoting Scottish jurist James Lorimer). Europeans fighting other Europeans would be held to a higher standard than Europeans fighting non-Europeans. In this sense, the Hague rules were the legal equivalent of Callwell’s classic Small Wars: Their Principles and Practice (1899), a handbook for “expeditions against savages and semi-civilised races by disciplined soldiers” (Callwell 1903:1). Historian Stephen Rockel (2009:23) says the idea that “the laws of war could have any relevance in the process of imperial conquest would have been inconceivable to those planning it and carrying it out.” That iron rule was not lost on state leaders. Several of the governments seated at the Hague Conferences were simultaneously committing some of the worst imperial atrocities ever recorded—completely out of sight of international law.
Lest the laws of war seem like the last refuge of Realpolitik (Geoffrey Best suggests that “International law writers usually look hard in the other direction whenever raison d‘Etat is around”), they have made ever greater room for individual integrity and dignity. Best argues that as the law was systematized and codified, it lost touch with the “common stock” of humanity, becoming “increasingly tied to the rigidities of military thought and practice,” but that the rising tide of rights has buoyed the humanitarian side of the law (Best 1980:17–18). The 1949 Geneva Conventions adopted a liberal, universal, tone. Common Article 3, for example, provided that civilians in international as well as domestic wars “shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth”; be free from arbitrary judicial sentences and executions; and be protected from “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment.”
The Additional Protocols (1977) have been described as “the world of humanitarian law pa[ying] tribute to the world of human rights” (Doswald-Beck and Vité 1993:113). They recast the 1949 Geneva Conventions in terms of rights. States traditionally had resisted international regulation of civil wars in order to maintain as free a hand as possible to quell uprisings and rebellions, and to deny rebels any formal legal status. The 1977 Protocols directly challenged those arguments. The Preamble to Protocol II applicable to non-international conflicts reminded the generals that “international instruments relating to human rights offer a basic protection to the human person, emphasizing the need to ensure a better protection for the victims of those armed conflicts.” The Protocols not only strengthened civilian protections, they also extended combatant privileges to people fighting against colonial domination, occupation by outside forces, and racist regimes. Representatives of several national liberation movements were invited to participate in the negotiations (Roberts and Guelff 1982:387–88). All or part of the Additional Protocols have been ratified by 174 countries, with the United States, India, Israel, Pakistan, Iran, and Turkey notable exceptions.
Beyond Lex Specialis: The New Pragmatism
I suggested in the previous chapter that human rights are animated by specific ends, such as the right to life or the freedom of movement, while humanitarian law revolves around general principles of discrimination and proportionality. Nevertheless, humanitarian law enjoys pride of place as lex specialis, or “special law,” the legal doctrine that particular rules trump general ones. The International Court of Justice (ICJ) has argued that rules derived for the special circumstances of armed conflict take precedence over human rights laws that apply in all circumstances. In the Nuclear Weapons Advisory Opinion (1996) the Court ruled that the human right to life, for example, does not vanish in time of war, but is fashioned to fit IHL:
The protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.5
The ICJ’s 2004 Advisory Opinion on Israel’s separation barrier (“the wall”) further refined the compass of human rights. The court rebuffed Israel’s claim that human rights laws could not be applied in the context of war and occupation. After forty years of largely institutionalized occupation of the West Bank and Gaza Strip, there was little doubt the ICJ would find that Israel effectively controlled the West Bank and couldn’t so easily shrug off its human rights obligations. The Court extended the idea of civilian suffering to include curbs on freedom of movement, and barriers to agricultural lands, water sources, means of subsistence, health services, educational establishments, and religious sites. Military strategy and tactics were also fair game. The Court held that the seizure of Palestinian lands to construct the wall was not militarily necessary, since less drastic methods could have achieved the same end. Still, the Wall opinion was clearer on jurisdiction than it was on substance. The exact provisions were left open, as “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.”6
The ICJ took an equally enigmatic stance in Democratic Republic of Congo v. Uganda (2005). The Court simply noted that “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration.”7 The Congo ruling lists a wide range of applicable conventions—the Hague Laws, the Geneva Conventions, the Additional Protocols, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, the Convention on the Rights of the Child, and the Optional Protocol on the Rights of the Involvement of Children in Armed Conflict—but the Court provided no guidance on how the norms should interact. Nor did the justices infuse IHL with human rights. Rather, they maintained the parallel worlds of the regimes, with human rights remaining in force, alongside, or, perhaps more likely, beneath, IHL.
The sharpest criticism of special law is that it forces human rights to play on the field of IHL. The idea that “the special rule is closer to the particular subject matter and takes better account of the uniqueness of the context” is a time-honored principle of law (Sassòli and Olson 2008:603). But in this case the uniqueness of the context didn’t simply refer to the standard of force most apt when the infantry is pinned down by artillery fire or when a civilian approaches a poorly lighted checkpoint manned by a nineteen-year-old soldier hopped up on Red Bull and death metal music. It also means strategic context, military necessity, casualty aversion, risk apportionment, and so on. If we cast human rights in a secondary role, we miss the full impact of war on its victims. The breakdown of everyday life—the erosion of public security, economic suffering, rent social fabrics, failing public health, environmental degradation, displaced persons—becomes the