in any case. As Kretzmer (2009:27–28) notes, the law “never places an undue burden on the Parties to meet military necessity and to pursue their military purposes.” States want as free a hand as possible while remaining within the bounds of the law and the aura of legitimacy. The law of war provides just such semi-restraint. As the British Manual of the Law of Armed Conflict puts it, “The law of armed conflict is consistent with the economic and efficient use of force. It is intended to minimize the suffering caused by armed conflict rather than impede military efficiency” (quoted in Waters 2008:33).
If the law of war is malleably utilitarian—even instrumental—in nature, particularly with regard to proportionality, it might be tempting to characterize human rights as categorical or deontological. Human rights certainly drive a harder bargain than IHL does. Some acts—torture or inhuman treatment, arbitrary killings, degrading public health, destroying the fabric of civilian life—are never worth it, regardless of the strategic advantages they might produce. But rights are also consequentialist. Like IHL, they, too, involve weighing and judging, only the utility sought is humanitarian and rescue-oriented rather than strategic. The calculus is this: the human rights benefits of using force must outweigh the human rights costs of using force.4 How this plays out in policy and practice won’t always be clear, but this caveat helps to steel the civilian idea. It sets a high threshold for the use of violence and ensures that wars undertaken for humanitarian reasons are waged as humanely as possible from the standpoint of those civilians on the ground who are most affected by it.
Humanitarian law and human rights are not always at loggerheads, of course. The two regimes overlap along a critical range of rights: due process and detainee rights, the prohibition on torture and cruel, inhuman or degrading treatment, and discrimination based on race, sex, language, or religion. But on the military terrain of strategy, human rights struggle to be heard. Not only does humanitarian law tend to be pliant, but its traditional priorities—the economy of violence, noncombatant immunity, the humane treatment of sick, wounded, and captured soldiers—eclipse the new priorities of human rights. Especially in high-tech campaigns, humanitarian law as lingua franca drives the discussion toward military issues of “correct” or “successful” targeting and whether means and methods of attack were sufficiently restrained, and away from the broader suffering wrought by war. What Pentagon press officer wouldn’t rather see a story on GPS-equipped missiles than 1,200 words on declining public health or imperiled women’s rights?
The interchangeable semantics of “law of war,” or “law of armed conflict,” and “international humanitarian law” gloss over these differences and contribute to the confusion. The public relations windfall of couching military operations in humanitarian terms is undeniable. But the term “humanitarian law” is ambivalent at best. Given the violence they license, the words are “Orwellian,” says Yale Law School professor Michael Reisman (Kretzmer 2009:21). Some strict constructionists reject the appellation “humanitarian law” in favor of “operational law,” a term that captures the primacy of the military mission as well as the functional utility of the rules. As one U.S. judge advocate put it, IHL confuses “the end desired by the warrior with that desired by the humanitarian. True warriors are chivalrous, but their role is not humanitarian” (Morris 1997:13).
These tensions are becoming more acute, not less. An ambitious human rights agenda seeks, as Milanović (channeling Star Trek) says, “to (boldly) take human rights to places, be they extraterritorial situations or those of armed conflict, or both, where … no human rights have gone before” (Milanović 2011a:96). The introduction of rights has shaken up the field and weakened the authority of legal experts to define the legitimacy and justice of war. The (in)justice of the Iraq War, for example, was defined as much by the “folk” legal interpretations of global protesters as by the learned opinions of international lawyers (Reus-Smit 2011:340). Even liberal 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
