style="font-size:15px;"> I suggested in the previous chapter that human rights are animated by specific ends, such as the right to life or the freedom of movement, while humanitarian law revolves around general principles of discrimination and proportionality. Nevertheless, humanitarian law enjoys pride of place as lex specialis, or “special law,” the legal doctrine that particular rules trump general ones. The International Court of Justice (ICJ) has argued that rules derived for the special circumstances of armed conflict take precedence over human rights laws that apply in all circumstances. In the Nuclear Weapons Advisory Opinion (1996) the Court ruled that the human right to life, for example, does not vanish in time of war, but is fashioned to fit IHL:
The protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.5
The ICJ’s 2004 Advisory Opinion on Israel’s separation barrier (“the wall”) further refined the compass of human rights. The court rebuffed Israel’s claim that human rights laws could not be applied in the context of war and occupation. After forty years of largely institutionalized occupation of the West Bank and Gaza Strip, there was little doubt the ICJ would find that Israel effectively controlled the West Bank and couldn’t so easily shrug off its human rights obligations. The Court extended the idea of civilian suffering to include curbs on freedom of movement, and barriers to agricultural lands, water sources, means of subsistence, health services, educational establishments, and religious sites. Military strategy and tactics were also fair game. The Court held that the seizure of Palestinian lands to construct the wall was not militarily necessary, since less drastic methods could have achieved the same end. Still, the Wall opinion was clearer on jurisdiction than it was on substance. The exact provisions were left open, as “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.”6
The ICJ took an equally enigmatic stance in Democratic Republic of Congo v. Uganda (2005). The Court simply noted that “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration.”7 The Congo ruling lists a wide range of applicable conventions—the Hague Laws, the Geneva Conventions, the Additional Protocols, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, the Convention on the Rights of the Child, and the Optional Protocol on the Rights of the Involvement of Children in Armed Conflict—but the Court provided no guidance on how the norms should interact. Nor did the justices infuse IHL with human rights. Rather, they maintained the parallel worlds of the regimes, with human rights remaining in force, alongside, or, perhaps more likely, beneath, IHL.
The sharpest criticism of special law is that it forces human rights to play on the field of IHL. The idea that “the special rule is closer to the particular subject matter and takes better account of the uniqueness of the context” is a time-honored principle of law (Sassòli and Olson 2008:603). But in this case the uniqueness of the context didn’t simply refer to the standard of force most apt when the infantry is pinned down by artillery fire or when a civilian approaches a poorly lighted checkpoint manned by a nineteen-year-old soldier hopped up on Red Bull and death metal music. It also means strategic context, military necessity, casualty aversion, risk apportionment, and so on. If we cast human rights in a secondary role, we miss the full impact of war on its victims. The breakdown of everyday life—the erosion of public security, economic suffering, rent social fabrics, failing public health, environmental degradation, displaced persons—becomes the wallpaper of war, a depressingly familiar backdrop to the main event, the “fighting” war in which proportionality and discrimination are more or less observed.
Over-deference to special law can leave states thinking they’ve shed their human rights duties altogether, even with regard to classic rights like due process, humane detention, and just punishment (Ben-Naftali and Shany 2003:56; C. McCarthy 2008:107). Defending its treatment of detainees in the war on terror, the George W. Bush administration argued that human rights didn’t apply extraterritorially, and even if they did, they would be superseded by IHL. Some within the government argued that humanitarian law didn’t apply because the adversaries were “unlawful enemy combatants,” who did not respect the basic decorum of war. The administration eventually settled on special law. Testifying in 2006 before the UN Committee against Torture, John Bellinger, legal advisor to the U.S. Department of State, said, “Our view is simply that U.S. detention operations in Guantanamo, Afghanistan, and Iraq are part of ongoing armed conflicts and, accordingly, are governed by the law of armed conflict, which is the lex specialis applicable to those particular operations.”8 Special law was seconded by the U.S. Supreme Court, which ruled in the 2006 Hamdan case (a decision that studiously avoided any mention whatsoever of human rights) that Common Article 3 of the Geneva Conventions did apply to the Guantánamo detainees.9
Special law can become the rote military response to the turf challenge posed by human rights. “During combat operations,” says the official Rule of Law Handbook for American judge advocates, “the U.S. regards the law of war as the exclusive legal regime or a lex specialis … [which] operates to the exclusion of competing legal frameworks such as human rights law” (Judge Advocate General’s Legal Center and School 2009: 80). The 1,200-page Department of Defense Law of War Manual, published in 2015, has little patience for rights, endorsing the law of war (the manual’s preferred nomenclature in place of the softer “humanitarian law”) as “the controlling body of law with regard to the conduct of hostilities and the protection of war victims” (U.S. Department of Defense, Office of General Counsel 2015:901). Other times one finds grudging respect for rights. Remarkably, the U.S. Army’s chief legal manual from 1956 said that the purpose of the laws of war was to safeguard “certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians.” The manual concluded that observing human rights would ultimately “facilitate[e] the restoration of peace” (U.S. Army 1956:para. 2(b), 2(c)). Fifty years later, the U.S. Operational Law Handbook 2006 stated that human rights obligations based on conventional international law “fall within the category of ‘aspiration’ rather than ‘obligation,’ ” but that “human rights law based on customary international law binds all states, in all circumstances” (Grimes et al. 2006:50). The 2009 Rule of Law Handbook, the main resource for the military lawyers knowns as judge advocate generals, or JAGs, seems certain that human rights work: “Irrespective of the specific legal context, rule of law operations should be guided and informed by human rights law purely as a matter of efficacy” (Judge Advocate General’s Legal Center and School 2009: 80).
Military views are not monolithic. Commanders have an absolute duty to see that their troops observe IHL, but they have latitude in identifying and handling breaches. Some JAGs see their role as “force multipliers” whose job is to facilitate rather than fetter violence. Lt. Col. Tony Montgomery, the judge advocate who approved the NATO bombing of the Belgrade television station during the Kosovo crisis, said “judges don’t lay down the law. We take guidance from our government on how much of the consequences they are willing to accept” (“They are just covering their ass” 2001). Others take a more independent stand. Some of the most dogged critics of the detainee program at Guantánamo were the JAGs assigned to represent them before military commissions. Unit leaders see the law boiled down to rules of engagement, while commanders consider the broader impact of the law on strategic goals.
Proponents of special law say it is the only way to set clear standards for soldiers. The underlying
