should be employed.… Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.”14
Here a liberal rights norm reins in the idea that combatants can be targeted and killed at any time. Even if they comport with IHL, acts of war can’t be severed from human rights standards of fairness and due process (Kretzmer 2005:186). Again, rights are not absolute. Apprehension and trial are preferable to targeted killing, but the resort to lethal force is still an option. The case also shows how tentative many of these advances are. Only four years earlier the same Israeli court said bluntly that military operational matters were “non-justiciable,” or beyond the reach of the courts (Ben-Naftali and Michaeli 2003a). Nor has reliance on rights ironed out the controversy over such killings. Far from it. Targeted killings carried out by Israel within the 2006 framework remain highly contentious, and usually only scant details are available regarding specific cases.
Human rights advocates can find themselves torn between the utilitarian culture of humanitarian law and the purer ethos of rights. During the dirty wars of the 1970s, rights groups deliberately avoided the world of IHL, with its “strange and ambiguous (at least to human rights people) concepts such as ‘collateral damage’ and ‘military necessity,’ so that even something as apparently straightforward as the killing of civilians might, though regrettable, not constitute a violation of international humanitarian law.” Relying on IHL could have unintended moral and legal consequences. In Northern Ireland, for example, human rights groups resisted condemning the killing of civilians by the IRA as a violation of humanitarian law rather than human rights law, lest this telegraph their approval of the killing of British soldiers, who might conceivably be targeted under the laws of war. Indeed, embracing IHL would signal that the conflict was a war, and thus legitimize the British government’s “shoot to kill” policy in place of policies geared toward apprehension and arrest (Brett 1998).
Since the mid-1990s, however, a loose pattern has emerged. Human rights groups have tended to view low-end, internecine, conflicts through the lens of rights, while framing high-tech, “Western,” wars in terms of IHL. For example, Helsinki Watch (later Human Rights Watch) viewed ethnic conflict in Yugoslavia as part of a chain of human rights violations that unfolded over time—from Serbian nationalists silencing press freedoms, to the early purges of ethnic Albanians in Kosovo, to the rise of paramilitary violence (Anderson 1990; Human Rights Watch 1991:602). Having reported from Yugoslavia across the 1980s under the Helsinki system, HRW did not recognize a clean break from peace to war, from human rights to humanitarian law (Helsinki Watch 1986). Even after the Croatian War broke out in 1991, HRW continued to view abuses largely in terms of rights (Helsinki Watch 1991). Amnesty International, too, translated the generalities of the Bosnian war into the details of rights. “War” or “ethnic cleansing” did not unfold as high strategy or pitched battles, but as a rash of killings, expulsions, disappearances, executions, extortion, terror and fear, illegal detentions, beatings, torture, and rapes, skewed investigations and snap trials, and all the daily harassments and humiliations of intercommunal strife (Amnesty International 1992; Amnesty International 1994; Amnesty International 1996a). Conflicts in Africa have similarly been framed in the language of rights. During the civil war in Burundi (1993–2005), for example, Amnesty and HRW both invoked IHL with regard to specific war crimes, but the driving narrative was the crippling effect on civilians (Human Rights Watch 2003a; Human Rights Watch 1998b). Rights coverage of the wars in the Democratic Republic of Congo (1996–2008) tended to reduce the conflagrations to digestible themes: children shanghaied into militias, rape used as a weapon of war, the vast number of persons displaced, and so on. Advocacy campaigns often focused on the massacre of a single village, or even a single family, lest the human costs of war be lost in a sea of statistics (see, e.g., Amnesty International 2009a; Human Rights Watch 2009b; and Refugees International 2013).
At a minimum, such conflicts “not of an international character” are governed by the Geneva Conventions Common Article 3. Maximalists say that many of the civilian protections of Additional Protocol I have passed into customary law and therefore also apply to all parties regardless how the war is categorized.15 To be sure, IHL is critical in cases of discrete, prosecutable, war crimes. But in the absence of the kind of organization and command and control that traditional laws of war envision, analysts are drawn to rights. Humanitarian law seems almost too formal or event-specific to capture the extended terror and turmoil of societies engulfed by war. Whom do you court martial for the spread of infectious disease or a spike in infant mortality? Nor does special law do justice to the kind of endemic violence that can thrive in the limbo between war and peace. In Congo, for example, the Goma peace agreement formally ended the war in 2008, but there has been little distinction between war and peace since, especially in North Kivu, which is still rocked by waves of killing, displacement, looting, and sexual violence.
When it comes to modern, high-tech warfare, however, human rights groups have grown noticeably comfortable with humanitarian law. An early example is the Israeli incursion into Lebanon in 1996 known as Operation Grapes of Wrath. Amnesty’s assessment of the seventeen-day air and artillery campaign did not discuss human rights at all (Amnesty International 1996b). Human Rights Watch’s postmortem cited fundamental guarantees of human rights, but its analysis, too, relied exclusively on IHL. Much of the focus was on the IDF’s shelling of the South Lebanon village of Qana, where more than a hundred civilians sheltering in a United Nations compound were killed. Both groups accused the IDF of deliberately displacing hundreds of thousands of civilians in order to pressure the Lebanese government to disarm Hezbollah. Under Article 51(2) of Additional Protocol I, “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Amnesty argued that the warnings were designed as threats, particularly the charge that “any [remaining] presence in these villages will be regarded as subversive” (Amnesty International 1997:9). Human Rights Watch concluded that the IDF language appeared “expressly intended to terrorize the population in the south” (Human Rights Watch 1997).
Ethnic cleansing on the ground in Bosnia was treated largely as a matter of rights, but NATO’s 1998 air campaign was scrutinized mainly in terms of humanitarian law (Amnesty International 2000). Rights analysts often echoed military language and assumptions. Human Rights Watch conducted its first “battle damage assessment (BDA) mission” (HRW’s own Pentagonese) to gauge damage to civilians and civilian objects caused by NATO’s airstrikes (Docherty and Garlasco 2003:10). Research teams from Human Rights Watch have conducted BDAs in Afghanistan, Iraq, and Gaza as well, gathering ballistics evidence, mapping missile strikes, measuring debris spray and bomb craters, identifying shrapnel and pieces of cluster munitions, and interviewing soldiers and survivors. The technical expertise and detailed reporting that went into Off Target: The Conduct of the War and Civilian Casualties in Iraq (2003) were hard to ignore. The report identified patterns of misconduct and failures to exercise due care, but made no mention of human rights proper. Other rights groups have analyzed accountability for abuses on the military’s or CIA’s own terms. Human Rights First’s Command’s Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan (Shamsi and Pearlstein 2006) studied scores of cases of detainees who died in U.S. custody, many of them clearly homicides. The analysts at Human Rights First didn’t challenge the prerogative of U.S. military commanders or the CIA inspector general to investigate and punish their own breaches, either under the Uniform Code of Military Justice or by referral to the Department of Justice. Rather, the rights group highlighted a yawning “accountability gap” in U.S. practice and suggested measures for improvement:
deaths went unreported, witnesses were never interviewed, evidence was lost or mishandled, and record-keeping was scattershot. They also include investigations that were cut short as a result of decisions by commanders—who are given the authority to decide whether and to what extent to pursue an investigation—to rely on incomplete inquiries, or to discharge a suspect before an investigation can be completed. Given the extent of the non-reporting, under-reporting, and lax record keeping to date, it is likely that the statistics reported here, if anything, under-count the number of deaths. (Shamsi and Pearlstein 2006:2)
Today,
