Criminal Court into existence, albeit with the Court’s legal powers—and its budget—derived through state consent. The ICC now stands both as a forum for adjudicating human rights and war crimes and as a referent for argument and debate about the pursuit of rights in other cases (Roach 2006). As we will see, the legal reach of rights is still hotly contested, particularly in asymmetric conflicts where the power of reciprocity has waned, though here, too, an increasingly coherent and pragmatic movement is pushing the debate in the direction of rights.
Humanity’s Law
International humanitarian law has traditionally regulated the use of violence between states, while human rights law has protected people from abuse at the hands of their own governments. But the trend today is to view these two sets of norms and strands of law as complementary, as existing in tandem or in parallel, or as mutually reinforcing, like “belt and suspenders” (Schabas 2007). Human rights courts can adjudicate war crimes that might otherwise go unaddressed, or supplement IHL with extra conditions with respect to the use of force or the protection of noncombatants. Or the two regimes may operate along a continuum in which human rights law applies in milder “law enforcement” situations, but as threats and violence escalate the law of war takes over (T. Smith 2010:25).
Ruti Teitel describes this process of convergence and complementarity as “humanity’s law.” “The most pronounced change in the international legal system,” she writes, is “the dramatic expansion of humanitarian law’s reach through its merger with international human rights law” (Teitel 2002:359). This view is widely echoed by legal scholars and jurists. The late Theodor Meron (2006) lauded the humanization of humanitarian law under the influence of human rights. Hans-Joachim Heintze describes (2004:791) human rights law as “an intrinsic part of the legal rules governing wars and other emergency situations.” The International Criminal Tribunal for the Former Yugoslavia (ICTY) noted “a slow but profound transformation of humanitarian law under the pervasive influence of human rights.”1 The Court observed in the Tadić case that “A sovereignty-oriented approach has been gradually supplanted by a human being-oriented approach.”2
Enthusiasm sometimes gets ahead of practice, but there is little doubt that human rights now leaven humanitarian law in meaningful ways. The chemistry between the two regimes can be awkward, however. Where, after all, is the common ground between the dignity represented by rights and the tragedy represented by the “necessary” violence—including collateral violence against civilians—that is sanctioned by the laws of war? “On a normative level,” notes Audrey Benison, “humanitarian law contemplates a starting point of death, violence, and destruction that is repugnant to the essence of human rights law” (Benison 1999:152). Bill Bowring describes IHL as “intrinsically conservative, taking armed conflict as a given.” Human rights are much more eager to shake off the past. The idea of rights is “revolutionary, scandalous in its inception, inspired by collective action and struggle, and threatening to the existing state order” (Bowring 2009:5–6).
Each tradition traces a distinct provenance. From the start, the law of war was military law, a “contract between sovereign military powers” (A. Dworkin 2006:224). Book One, Chapter 1 of Grotius’s De Jure Belli ac Pacis (1625) is titled “On War and Right,” referring to the jus ad bellum right of states to launch wars. The “combatant’s privilege” to take human life is as old as the law of war itself. The primary subject of the jus in bello has always been the reciprocal treatment of armed agents of the state and the preservation of their right, within limits, to kill in war. Rights tend to be bottom-up, while IHL tends to be top-down. Cordula Droege notes that humanitarian law “did not emanate from a struggle of rights claimants, but from a principle of charity—‘inter arma caritas’ ” (2008:503). It confers protections upon us in the context of state power. As Draper (1998:125) observed of the Hague laws, “the powerful thrust of military considerations” is apparent. The individual is “an object of the law and not … a legal persona endowed with rights under the law of nations.”
In short, IHL is “of” war: the laws that regulate the conduct of hostilities are designed to moderate but also to accommodate the pursuit of legitimate military ends. It revolves around an economy of violence which greatly values military necessity. The ICRC Commentary to the Additional Protocols notes that “necessity is the limit of legality. Any violence which exceeds the minimum that is necessary is unlawful and it is on this principle that all law relating to the conduct of hostilities is ultimately founded” (see Lamp 2011:232). The laws of war categorically forbid directly targeting civilians as such. But the right of civilians to be free from violence, indeed, the right of rights, the right to life, is a relative right, subject to operational demands, military advantage, and proportionality. For military lawyers, the central question with regard to collateral damage is: “Is it worth it?” Can incidental civilian casualties be justified by the military advantage anticipated? Depending on the military advantages at stake, the level of civilian harm can be high indeed.
Most striking is how elastic the idea is in practice, particularly on this question of proportionality. Here is then U.S. Secretary of Defense Donald Rumsfeld:
Now the word “proportion”—“proportionate” is interesting. And I don’t know that it’s appropriate. And I don’t know that I could define it. But it might be said—and I wouldn’t say it—[laughter]—but it might be said by some that to quickly and aggressively repress a prison riot in one location might help dissuade people in other locations from engaging in prison riots and breaking out of prison and killing more people. I don’t know if that’s true. It might also persuade the people who are still in there with weapons, killing each other and killing other people, to stop doing it. It’s—ah—your question’s too tough for me. I don’t know what “proportionate” would be. (quoted in Carmola 2007:93–94)
Secretary Rumsfeld was not just being coy. Yes, proportionality is a process of balancing, but the elements on the scale—“concrete” military advantage, force protection, the status of people, excessive or “clearly excessive” force—are themselves contested. The benefits and costs are forward-looking and speculative: anticipated advantages and anticipated casualties. The scale tilts sharply against civilians when belligerents see a mission as imperative or certain tactics as necessary. The apportionment of risk further undercuts the civilian idea. Modern militaries frequently place protection of their own soldiers on the scales, loosening rules of engagement or choosing munitions and tactics that reduce risks to soldiers but increase them for civilians.3
Eyal Benvenisti argues that armies construe their obligations narrowly in any case. “Armies interpret the law as granting them wide discretion,” he writes. “They wish to limit the commanders’ responsibilities rather than increase protection to civilians. They highlight the obligations imposed on the defending army. In applying the test of proportionality, they stipulate that the means used should be measured against the overall aim of winning the military conflict rather than against the particular aim of winning a specific battle. And this overall aim is defined subjectively” (Benvenisti 2006:95–96). Thus, while military lawyers may judge proportionality in terms of discrete attacks, human rights advocates will tally the cumulative effects of attacks or map broader patterns of excess. Land mines, cluster bombs, and depleted uranium munitions, for example, while legal for “approved” military use, can cause immediate as well as long-term bodily harm. Attacks on infrastructure or dual-use facilities having both a military and civilian purpose (communications networks, electrical plants, water treatment facilities) traditionally have been interpreted in immediate IHL terms, not with regard to long-run effects on human rights and public health.
This is not to say that IHL is putty in military hands. Some legal claims are persuasive and square with the current spirit of the law, while others overreach or fall flat. For example, U.S. officials, not very convincingly, have defended the use of targeted killings as necessary given the “imminent threat” posed, but cite a “flexible” or “elongated” concept of
