(2006b:133) notes, “in today’s asymmetric postcolonial wars, the terrain beneath a soldier’s interpretations of what is and is not appropriate is constantly shifting.” Then again, how IHL translates into practice isn’t self-evident, either. The 2004 U.S. Army counterinsurgency manual noted that “all counterinsurgency operations comply with law of war principles to the extent practicable and feasible” (U.S. Department of the Army 2004:sec. j-4). Note the double dilution: the practicable/feasible qualification as well as the reliance on law of war principles rather than the law of war per se. As we’ve seen, precise definitions of military advantage and military necessity are elusive. So it’s something of a red herring to say that soldiers will be left to translate “Delphic principles” of human rights into military reality (Garraway 2010:507). The image of soldiers entering the fray with copies of ICJ advisory opinions tucked under their helmet bands is misleading. Rather, human rights norms, like the laws of war, inform concrete policies and rules of engagement. These will vary according to the context and mission, but the overall impact is to push the rules toward stronger civilian protections by elevating humanitarian priorities and emphasizing individual dignity and integrity.
Until now, basic tensions between the regimes have meant that something had to give. In light of strategic pressures, institutional preferences, the historical sway of the laws of war, and near-universal public support for troop protection, that something has tended to be human rights. Canada’s former Judge Advocate General, Brig. Gen. Ken Watkin (2004:32), for example, sees times when human rights should come into play; but in the end, human rights must bend to IHL. “International humanitarian law has its own standards for assessing the legality of using lethal force, so that human rights advocates will have to become more comfortable with both the scope of that law and its application to conflict.” Mark Osiel (2009:130) says the regimes occupy separate “legal universe[s],” adding, “if either body of law has fair claim today to gobble up the other, it is surely humanitarian law, not human rights.”
It should be clear by now that it doesn’t have to be this way. Nothing in the DNA of humanitarian law makes it superior to human rights. As Orna Ben-Naftali and Keren Michaeli suggest, we should consider specific circumstances and choose the standard that offers the greatest protection to the innocent (Ben-Naftali and Michaeli 2003b:254; also see Sassòli and Olson 2008:603–4). Special law misses this give and take between the regimes. Scholars have argued for years that human rights should carry greater weight in internal conflicts, given the short shrift IHL accords civil wars. For the ICRC, the institutional guardian of humanitarian law, human rights are a cornucopia of humanitarian norms. The term “human rights” appears more than 4,000 times in the ICRC’s massive 2005 study of customary law (see Henckaerts and Louise Doswald-Beck 2005a, b). The ICRC conception of civilian protections increasingly echoes that of rights as well: “assur[ing] that authorities and other actors respect their obligations and the rights of individuals in order to preserve the lives, security, physical and moral integrity and dignity of those affected by armed conflicts and/or other situations of violence” (ICRC 2008:9).
As a practical matter human rights give form and definition to general concepts of IHL. Rights offer a detailed blueprint of the right to life, fair trials, adequate investigations, and the treatment of detainees, as well as a range of issues affecting civilians living under military occupation or control: free speech, free association, free movement, the freedom to work, the right of asylum, property rights, and so on (see Moir 2003; Cryer 2010; Roberts 2006). With regard to child soldiers, human rights protections have eclipsed IHL. Under Additional Protocol II, children under fifteen may not be recruited or take part in hostilities. Human rights instruments set a minimum age of eighteen.10 With the exception of the International Military Tribunal for the Far East (the Tokyo Trials), sexual violence and sexual slavery were not explicitly set out in the law of war until the war crimes tribunals for Rwanda and the Former Yugoslavia (Jacobsen 2008:561). Human rights NGOs tend to set sexual and gender-based violence within an additive legal framework of humanitarian law, human rights, and national and international criminal law (see, e.g., Human Rights Watch 2003c; Amnesty International 2004a,c; and Kippenberg 2005).
Human rights groups layer the details of rights onto their renderings of IHL, often stressing impacts of violence that get glossed over by humanitarian law. Human Rights Watch described breaches of IHL in Colombia’s grinding civil war in unmistakable human rights terms: “Violations of international humanitarian law—the laws of war—are not abstract concepts … but the grim material of everyday life. War bursts into the daily activities of a farm, a village, a public bus, or a school with the speed of armed fighters arriving down a path or in four-wheel drive vehicles” (Human Rights Watch 1998c:1). A survey by Amnesty International of sexual violence against women in Colombia couched abuses in terms of racial, indigenous, and gender rights:
The civilian population has increasingly become a victim in the internal armed conflict, not simply caught in the crossfire, but purposely targeted. This has above all affected those communities most at risk, whose voices are rarely heard: Afro-descendent and indigenous women, peasants, and shantytown dwellers on the outskirts of cities, many of whom are already displaced. Women’s bodies have become marked as military targets, whether because they have not conformed to their “gender role,” because they have challenged prohibitions imposed on them by the armed groups, or whether they are perceived as the “depositories” of the honour of a particular community and therefore a useful target on which to inflict humiliation on the enemy. (Amnesty International 2004b:8)
The regional human rights courts and the ad hoc criminal tribunals have led the way in articulating human rights standards of conduct. Yet even while ushering new law into the world, the courts have tended to be pragmatic, recasting IHL in terms of rights rather than rejecting or replacing it. Although the ECtHR is often panned for producing “Ivory Tower” rulings, in fact the Court usually tightens rules of engagement and other policies on the use of force that rest on humanitarian law in the first place (Gaggioli and Kolb 2007:124–27). For example, in the Ergi case (involving a civilian killed during a firefight between Turkish soldiers and PKK fighters), the Court ruled against Ankara even though the lethal bullet may have come from a PKK gun. Citing “defects in the planning and conduct of the security forces’ operation,” the Court argued that the responsibility of the state was “not confined to circumstances when there is significant evidence that misdirected fire from agents of the State has killed a civilian. It may also be engaged where they fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimizing, incidental loss of civilian life.”11 In Isayeva (relating to Russian air strikes against suspected insurgents traveling close to a column of refugees on a highway in Chechnya), the Court conceded Moscow’s need to pursue “exceptional measures” in the war, and agreed that some degree of force was justified. While the attacks were plausible within an IHL framework, the Court concluded that they were not “planned and executed with the requisite care for the lives of the civilian population.”12 In McCann (involving the killing of three unarmed members of the Irish Republican Army by British SAS agents during a stake-out in Gibraltar), a divided court ruled that the design of the operation violated the right to life of the victims. Even if the soldiers believed it was necessary, even “absolutely necessary” to use deadly force “in order to safeguard innocent lives,” the court’s majority said the soldiers’ snap decision to shoot to kill “lack[ed] the degree of caution in the use of firearms to be expected from law enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects.”13
In other cases, reliance on rights introduces altogether new norms. The Israeli High Court of Justice (now the Supreme Court of Israel) in the Targeting Killing case (2006) provided detailed guidance on targeted or “named” killings. Citing dozens of human rights precedents, the High Court insisted on discrimination and proportionality with regard to incidental civilian harm, but also went further, economizing violence in order to maximize the rights of all involved: “among the military means, one must choose the means whose harm to the human rights of the harmed person is smallest. Thus, if a terrorist taking
