Human Rights and War Through Civilian Eyes. Thomas W. Smith
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Even core rights are filtered through IHL. Humanitarian law is widely regarded as lex specialis, or “special law,” derived explicitly for the circumstances of armed conflict and designed to be compatible with the pursuit of military ends. These special rules are usually thought to trump the more general rules of human rights. In its 1996 advisory opinion in the Nuclear Weapons case, the International Court of Justice ruled that human rights law “does not cease in times of war” except when the states parties formally derogate from certain limited provisions. But it was up to the law of war to determine what human rights meant in this context. No one could arbitrarily be deprived of the right to life, for instance, but defining what was arbitrary fell, according to the ICJ, to “the applicable lex specialis, namely, the law applicable in armed conflict” (International Court of Justice 1996: para. 25).
Humanitarian law isn’t as special or human rights as general as this approach suggests. When it comes to civilian protections, the laws of war revolve around malleable concepts of discrimination, military advantage, and proportionality. On issues such as detention and torture, adequacy of investigations, fair trials, and criminal punishment, and in internal conflicts generally, it is human rights that arguably serve as lex specialis (see, e.g., Doswald-Beck 2006; Koller 2005; Droege 2008). Granted, the rhetoric of rights tends to soar. If IHL bars belligerents from directly attacking civilians, human rights protect us all from being subsumed by Homer’s “blood-stain’d God of War” (Homer 1866:191). As noted, rights elevate personal dignity and worth over fear and degradation. Respect for individuals offsets the war powers of states, the secrecy and censorship, the coercion of patriotism, and the high cost of dissent. Rights seek to end conflicts justly and rebuild societies rent by violence.6
But these general goods are observed by way of specific laws and norms. As James Nickels suggests (2007:7), human rights today are “specific and numerous, not broad and abstract”; they are (apologies to my philosopher friends) “the rights of the lawyers, not the rights of the philosophers.” Most of the civil and political rights listed in the United Nations Universal Declaration of Human Rights (1948) apply in wartime as well as in peacetime:
• freedom from discrimination;
• right to life, liberty and security of the person;
• freedom from slavery or servitude;
• freedom from torture or cruel, inhuman or degrading treatment;
• recognition as a person before the law;
• equality and equal protection before the law;
• right to an effective remedy before a national tribunal;
• right of personhood and equality before the law;
• prohibition of arbitrary arrest, detention or exile;
• right to a fair and public trial;
• presumption of innocence until being proven guilty;
• freedom from interference in family and private life and communications;
• freedom of movement and residence, including the right to abandon one’s own country;
• right to asylum from persecution;
• right to a nationality;
• freedom of thought, conscience, and religion;
• freedom of opinion and expression;
• freedom of peaceable assembly and association, and the freedom not to be compelled to belong to an association;
• right to own property and the right not to be deprived of it arbitrarily.
Many of the social and economic rights elaborated in the Universal Declaration also apply: the right to work, the right to a standard of living adequate for the health and wellbeing of self and family; the right to education; the right to practice and preserve one’s culture. To these sources of wartime rights we can add the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950); the Convention on the Prevention and Punishment of the Crime of Genocide (1951); the Convention Relating to the Status of Refugees (1951), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1985); the International Covenant on Civil and Political Rights (1966); the American Convention on Human Rights (1969); the International Covenant on Economic, Social and Cultural Rights (1976); the Convention on the Elimination of All Forms of Discrimination against Women (1979); the African [Banjul] Charter on Human and Peoples’ Rights (1986); the Convention on the Rights of the Child (1989); and the Rome Statute of the International Criminal Court (2002).
Unless states lawfully suspend, or “derogate” from, their obligations, or the circumstances at issue lie outside the treaty’s competence or jurisdiction, all apply. The list of non-derogable rights, which cannot be skirted for any reason, including raison de guerre, is growing. The extraterritorial reach of human rights conventions is expanding as well (Milanović 2011b). In 2004, the United Nations Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, noted that state signatories to the treaty are required to “respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party.”
The enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained. (UN Human Rights Committee 2004)
Even this language has the ring of the state to it. Effective control of territory echoes the Hague Laws regarding the duties of commanders toward populations living under occupation. The standard has been espoused by virtually every major human rights body. Today, however, obligation is shifting from a spatial model of jurisdiction to a personal model of jurisdiction: effective control over people rather than places. Human rights standards run closest to absolute in sub rosa wars of detention, torture, and targeted killing. Here the perpetrators have the greatest degree of control over the bodies of those being detained, tortured, or killed, and the threat of harm to others is lowest.7
The European Court of Human Rights has developed this paradigm in cases concerning detention or torture but also in some instances involving active warfare. Strictly speaking, only the parties to a treaty are bound by its provisions. But basic humanitarian protections increasingly apply to everyone as a matter of customary law. This includes clandestine operatives, intelligence services, non-state armed forces, and private security companies whose representatives never attended a treaty conference or signed or ratified any conventions (Zegveld 2002; Conte 2013). This is a signal normative turn. If duty falls to the formal exercise of power over others, not just to governments with respect to their citizens, then soldiers carry human rights obligations with them wherever they go.
Agencies, Institutions, and Courts
Skeptics will say that trying to leverage human rights in a battle zone is naïve or even reckless. Human rights activists are often accused of overreaching. Critics say that making human rights the in bello standard is worse than futile; that norms will drift into irrelevance if they come unmoored from the grim reality of war (Watkin 2004:24). Some worry that the supposed clarity of IHL will be muddled by the introduction of human rights (Garraway 2010). Or that conflating the two will erode protections in peacetime, as states seek to weaken general human rights provisions to ensure their militaries a free hand in wartime (Matheson 1997). Others contend that human rights and humanitarian law are working fairly well as it is, so each ought to stay in its own corner. René Provost, for example, concludes that each set of laws “displays a peculiar normative richness and resilience likely to be weakened … by oversimplistic or overenthusiastic attempts to recast one in terms of the other.” Provost welcomes some overlap between the regimes, but concludes that “each performs