Human Rights and War Through Civilian Eyes. Thomas W. Smith
militaries resist “lawfare,” or the use or abuse of law, particularly human rights law, in the midst of war. Liberal societies overwhelming expect their soldiers to minimize civilian harm, but often balk at the prospect of those same soldiers having to fight “with one hand behind their backs,” as it’s often put (more on this at the end of this chapter). Legal scholar Mark Osiel forecasts a “coming clash” between human rights and humanitarian law. Conflicts between the two regimes are “many and increasing,” he says. They are “false friends” who have settled on a common humanitarian vernacular, but who hold starkly different ideas regarding the legitimacy and phenomenology of war (Osiel 2009:130, 127).
These differences come to the fore when human rights and military experts delve into specific cases. Noam Lubell (2005:745) notes that the communication barrier “includes not only words and terms, but … conceptual differences that can lead to contrasting ways of thinking and differing approaches to situations.” Core concepts—the right to life, proportionality, military advantage—can mean one thing in IHL and another in human rights. During the Afghanistan and Iraq wars, Harvard University’s Carr Center for Human Rights Policy convened a series of workshops with representatives from human rights NGOs and U.S. military officers and experts. The sessions revealed “a large, and in some important respects, widening, gap between the views of the human rights community and the U.S. military on the practical meaning of international humanitarian law” (Carr Center for Human Rights Policy 2002:9). The basic vocabulary of IHL—necessity, proportionality, discrimination, military advantage—was often in dispute.
If human rights locate justice in the universal sphere, the law of war drags it back into the national orbit of interests and strategy. Rights seek to protect physical integrity and human dignity in all circumstances, in peace and in war, at home and abroad, in rebellions, uprisings, riots, and other civil disturbances. No category of people is excluded from its writ. The law of war, on the other hand, designates those people who are legitimate targets of violence and those who are not. It “seeks to legally determine who ‘matters’ and who ‘does not,’ and how, in situations of armed conflict, necessity operates within this reality” (Barnidge 2010). Making intent the moral fulcrum of war crimes further limits the reach of IHL. Loosely stated, humanitarian law focuses on the mind of the perpetrator, while human rights focus on the body (and mind) of the victim. To rise to the level of a war crime in IHL, an attack must be waged against noncombatants as such with deliberate intent to harm them. Human rights highlight civilian harm even in the absence of the mens rea, or “guilty mind,” of the attacker. According to the 1998 Rome Statute which established the International Criminal Court, the ICC follows a middle path of individual intention and knowledge: “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge” (Art. 30(1)).
This reliance on intent rather than outcome underpins much of the rhetoric of modern warfare. “Prosecuting targets,” “revisiting the area,” “softening resistance,” “close air support”—this is the legally correct idiom of planners and press officers. A British air commander during NATO’s campaign in Yugoslavia suggested that errant bombs had been “seduced off target” (quoted in Coady 2008:132). Even a passing glimpse of war from the perspective of its collateral victims is enough to deflate the pretentions of this kind of target-talk.
Avenues of redress are distinct as well. To the extent that they are adjudicated at all, breaches of humanitarian law are dealt with almost entirely at the state level. Virtually all are addressed within the military command structure, either through administrative channels or, far less frequently, the court martial system (Moffeit and Kane 2004). International war crimes tribunals allow and sometimes even encourage private individuals to submit evidence to international war crimes tribunals. The Office of the Prosecutor at the ICTY, e.g., maintained an e-mail address for tips and other information. But individuals have no standing to lodge or pursue claims of their own. Human rights courts do the exact opposite. They may rely on states for institutional support and funding, but cases brought by individuals against states are the lifeblood of the regime (Bowring 2009:6). At the ECtHR, for example, state-to-state cases are rare, but individual applications flow in by the thousands. The fact that IHL stands at a remove from the people it ostensibly serves has prompted human rights courts to broaden their writ:
international human rights law benefits from an enforcement machinery that, for all its faults and limits, is still much better developed than what international humanitarian law offers. Victims, and their lawyers, often have no alternative to articulating their cases in human rights terms, as they can only bring them to international courts the jurisdiction of which is defined by human rights treaties. International courts have, rightly, avoided dismissing these cases outright, preferring to broaden the scope of human rights as previously understood. (Verdirame 2008:691)
Humanitarian law leads a double life, regulating war but also constituting war as a legitimate institution. The rush to violence is often clad in legal scaffolding. Kant famously dismissed the international lawyers of his day as “sorry comforters,” “dutifully quoted in justification of military aggression” (Reiss 1970:103; emphasis in original). Just as chivalry distinguished between honorable and dishonorable uses of violence, modern rules of war prohibit some forms of killing and destruction but permit others. Legal scholar Frédéric Mégret (2012:19) calls IHL “a huge concession to the violence of the world as it is.” The principle of noncombatant immunity serves to mitigate civilian harm, not to bar it altogether. The idea allows us to think of war as a legitimate, if tragic, practice (Zehfuss 2012:435). The strategic utility of violence, a principle that is carefully tended in the laws of war but which sits uneasily with human rights, comes through unscathed.
The law is anything but silent in time of war. Critical legal theorists (and International Relations “realists,” for that matter) say that humanitarian law is instrumental, designed to burnish military pursuits, particularly those of powerful, technologically advanced states (T. Smith 2002b; Jochnick and Normand 1994). Modern war has become an elaborate legal institution. Lawyers weigh in on strategy as well as tactics. Judge advocates frequently embed with the troops as they make their way into battle. Particularly knotty targeting decisions are taken in close consultation with legal advisers. In this way legal rhetoric has become one of the “staple features of state practice on the use of force, so that when states use force against other states, they also use international law to define and defend, argue and counter-argue, explain and rationalise their actions” (Kritsiotis 2004:47). The law stands for moderation and restraint, but it other ways it functions as “part of war’s machinery, not a rod in its wheels” (Burke 2007:140).
This fusion of strategy and humanity was codified early on. Consider the Lieber Code, Instructions for the Government of Armies of the United States in the Field (1863), adopted during the American Civil War and the first recitation of modern military law. In Lieber, notes James Turner Johnson (1981:305), “can be found a foretaste of future wars in which high moral purpose would be held up as excuse for ignoring some of the most time-honored and basic restraints of the just war tradition.” Lieber did bar cruelty, torture, pillage, and rape; declaimed perfidy and bad faith; and protected churches, schools, hospitals, cultural sites, and scientific objects. It called on field commanders to spare unarmed, compliant civilians “in person, property, and honor as much as the exigencies of war will admit” (Art. 22). In the same breath, however, Lieber endorsed strategic necessity as that which is “indispensable for securing the ends of war” (Art. 14). He not only collectivized enemy civilians: “The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of war” (Art. 21); but he also invited the decisive, indeed disproportionate, use of violence: “To save the country is paramount to all other considerations” (Art. 5); “military necessity admits of all direct destruction of life and limb of armed enemies, and of other persons whose destruction is incidentally unavoidable” (Art. 15); “the more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief” (Art. 29).
Then, as now, clashes between formal and informal belligerents posed the greatest challenge. Lieber’s code marked a bright line between “barbarous armies” and “modern