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

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СКАЧАТЬ 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 regular wars of the Europeans, and their descendants,” noting that “protection was, and still is with uncivilized people, 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.

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