Human Rights and War Through Civilian Eyes. Thomas W. Smith
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still debate where rights come from and why we should observe them. Rights are endowed by a Creator or reflect a vision of human dignity that is “ineliminably religious” (Perry 1998:11); or they are droits de l’homme, seized on the barricades and avowedly of this world. Natural rights theorists say rights are pre-political or pre-institutional claims that are given in nature; legal positivists say rights are no more or less than “claim[s] as recognized by law and maintained by governmental action” (Martin 1980:396, and see Hart 1955). Rights are universal norms that exist by virtue of our humanity; or they are Western cultural mores imposed on everyone else. Advocates of “thin” human rights emphasize classic rights of life, liberty, and security. Proponents of “thick” human rights count economic, social, and cultural claims within the compass of rights.
The idea of rights has nevertheless proved remarkably resilient. “Yes, we agree about the rights, but on condition that no one asks us why,” said the Catholic social theorist Jacques Maritain, who labored alongside his secular counterparts to draft the Universal Declaration of Human Rights (1948) (Joshua Cohen 2004:193–94). A similar pragmatism underpins the practice of rights. As Charles Beitz notes, the idea of human rights shapes much of the normative discourse of world politics today. Rights have developed a “doctrinal and institutional complexity” that “commands the energy and commitment of large numbers of people and organizations.” While the scope and content of human rights aren’t fixed, they are widely accepted as a “distinctive class of norms as reasons … for an array of modes of action” (Beitz 2009:9–10). This isn’t the El Dorado of universal right, but it’s a compelling norm nonetheless. As the Argentine philosopher Eduardo Rabossi put it, human rights are an undisputed “fact of the world” (quoted in Rorty 1993:134). That fact is not lost on would-be offenders. As Jeremy Waldron notes (1987:155), “there is now scarcely a nation on earth which is not sensitive to or embarrassed by the charge that it is guilty of rights-violation.”
The strength of right stems from its connection to duty. Right implies duty: the negative duty to forbear (to refrain from arbitrary detention or torture, for example), as well as the positive duty to act (to provide social security or health care, for example). In either case, rights demand to be satisfied, not just intended. If a well-meaning city housing official fails to secure fair housing for me, I still have the right—and he or she the obligation—to see that I get it. It is this moral and psychological purchase that rights have on other people that is so empowering. As Hugo Slim notes (2008:283), “feeling that one has a right to something is a much more powerful feeling than simply feeling that one needs or wants something. It automatically implies that someone has a duty to give it to you and politicizes this relationship immediately and irrevocably.”
As politics, human rights provide an organizing idea, a moral language, and a legal strategy. An army of activists help to press the case: human rights must be one of the most networked, NGO’d ideas in history. Thomas Risse and Kathryn Sikkink (1999:18) describe human rights as a model global social movement, “bound together by shared values, a common discourse, and dense exchanges of information and services.” Hundreds if not thousands of national and transnational human rights organizations, as well as national, state, and local government agencies, document abuses, frame debates, set standards and agendas, lead educational and lobbying campaigns, shame abusers, cajole policymakers, push reforms, offer solutions, and monitor implementation (Keck and Sikkink 1998:201).
Practitioners have converged on substantive as well as practical norms. NGOs have developed protocols and handbooks that cover everything from prison visits, to refugee relief, to the treatment of indigenous peoples, to helping physicians recognize the marks of torture on the human body. The Council of Europe has published a series of citizen’s handbooks that cover each of the major subject areas of the European Convention on Human Rights. International conferences, degree and certificate programs, wikis and listservs, and professional societies, as well as an academic publication—Journal of Human Rights Practice—buttress an elaborate global practice. With some allowance for cultural differences, human rights practitioners use roughly the same vernacular and methods in Krakow as they do in Dhaka.
Rights have always been on the march. The movement was invented out of revolutionary ideas and social movements, and continues to foment what Human Rights Watch (HRW) (2000) calls “an evolution in public morality.” There is no a priori boundary that rights cannot cross (Meron 1995:80–81). Jack Donnelly (2003:61) argues that rights should address the “principal systematic public threats to human dignity in the contemporary world,” whatever realm of life they happen to fall in. Still, major NGOs tend to choose their battles pragmatically. Human Rights Watch, for example, sets its priorities based on “the severity of the crimes being committed, the numbers of those affected, and our potential to have impact” (Human Rights Watch n.d.). Rights advocates and agencies certainly have agendas (and sometimes bureaucratic pathologies), and some issues catch fire while others die out (Tomaskovic-Devey et al. n.d.). But rights groups usually pivot to confront new crises. In her study of Amnesty International, Ann Marie Clark (2001:16) found that the “principled norms” of human rights groups are rooted in fact finding and expertise. But the lifeblood of the movement was the ability to “to form new concepts about human rights based on collected facts.”
Addressing war is a particularly pragmatic turn. Traditionally, rights protected people from their own governments, fending off what John Stuart Mill (1859:53) called “the dungeon and the stake.” But activists have always dreamed of breaching the citadel and bringing to heel the state at its most powerful. War, after all, is the classic force majeure, voiding normal peacetime obligations. On the home front, states invoke war powers to flout individual rights, suspending habeas corpus or censoring news, for example. Threats to rights increase exponentially in war zones. UN Secretary-General Kofi Annan underscored “the intimate connections between systematic and widespread violations of the rights of civilians and breakdowns in international peace and security” (UN Security Council 1999:6). Human Rights Watch observed that “almost without exception, the world’s worst human rights and humanitarian crises take place in combat zones” (Human Rights Watch 2004b:1). The annual “top ten” humanitarian crises compiled by Médecins sans Frontières/Doctors Without Borders (MSF) are almost all war-related.
Françoise Bouchet-Saulnier, legal adviser to MSF, says that civilian protection begins with the recognition “that individuals have rights and that the authorities who exercise power over them have obligations” (quoted in S. Gordon 2010:89). That relationship can’t be short-circuited for the sake of expedience. The nature of contemporary warfare has forced the issue. Former NATO commander Sir Rupert Smith argues (2007:6) that contemporary military engagements take place “in the presence of civilians, against civilians, in defence of civilians.” Managing civilians has become a singular concern for liberal militaries: anticipating and attending to refugees, coordinating relief efforts with humanitarian agencies and NGOs, overseeing public works projects, organizing communities, weaning people away from radicalism, getting society back on its feet. An army’s conduct vis-à-vis civilians has become a litmus test for the legitimacy of its mission.
Traditionally, human rights was the law of peace and IHL the law of war. That dichotomy is fading fast. The blurring of classic human rights violations and war-related breaches has made clear that the traditional separation cannot (and ought not) be sustained. Many rights groups found their calling in the “dirty wars” of the 1970s and 1980s. Amnesty International cut its teeth fighting political murder and disappearance in Central America, repression and killing in the Southern Cone, and torture in Northern Ireland. From their inception, Americas Watch (1981), Africa Watch (1988), and Middle East Watch (1989) dealt with insurgency, civil war, and other armed conflicts. In 1997, HRW amended its mission statement, pledging “to protect people from inhumane conduct in wartime.”
The internecine conflicts of the 1990s thrust rights into the foreground. “New wars”—an imperfect term that encompasses post-Cold War ethnic, religious, and nationalist strife, violent struggles over natural resources, and contemporary insurgencies and other informal conflicts—are every bit orchestrated mass violations of rights as they are organized armed violence (Kaldor 2001). Human rights advocates have never been more animated, pushing war norms far beyond the traditional bounds of humanitarian law (Clapham 2006:288–89). NGOs