human rights was the law of peace and IHL the law of war. That dichotomy is fading fast. The blurring of classic human rights violations and war-related breaches has made clear that the traditional separation cannot (and ought not) be sustained. Many rights groups found their calling in the “dirty wars” of the 1970s and 1980s. Amnesty International cut its teeth fighting political murder and disappearance in Central America, repression and killing in the Southern Cone, and torture in Northern Ireland. From their inception, Americas Watch (1981), Africa Watch (1988), and Middle East Watch (1989) dealt with insurgency, civil war, and other armed conflicts. In 1997, HRW amended its mission statement, pledging “to protect people from inhumane conduct in wartime.”
The internecine conflicts of the 1990s thrust rights into the foreground. “New wars”—an imperfect term that encompasses post-Cold War ethnic, religious, and nationalist strife, violent struggles over natural resources, and contemporary insurgencies and other informal conflicts—are every bit orchestrated mass violations of rights as they are organized armed violence (Kaldor 2001). Human rights advocates have never been more animated, pushing war norms far beyond the traditional bounds of humanitarian law (Clapham 2006:288–89). NGOs accustomed to writing polite letters to interior ministers asking them to free their dissidents are now grappling with failed states, civilianized wars, sexual violence, child soldiers, and public health disasters. Global rights groups deploy their own researchers or cultivate local networks to file reports from the killing fields. This vocal defense of civilians complements the more discreet approach of the ICRC, which prefers to intercede with belligerents privately rather than shame them publicly.
Human rights take a catholic view of the effects of armed conflict—the immediate and direct impact of violence as well as the long-term fallout on physical infrastructure, public health, social fabric, economics, environment, and culture. As Karima Bennoune, a former legal advisor to Amnesty International, notes (2004:173), “the human impact of an armed conflict is much larger than a sum of violations of the Geneva Conventions.” Media attention tends to focus on headline atrocities, but the lion’s share of the misery and abuse is submerged in the daily privations of war. Strikingly little collateral damage involves noncombatants caught in the crossfire between combatants. As Hugo Slim pegs it (2008:91), “most people die from war rather than in battle.”
Reliable data are scarce and there is great variation across conflicts, but recent estimates set the ratio of indirect to direct killing of civilians at between 3:1 and 9:1.4 Infrastructure crumbles, economies collapse, the flow of goods and services is interrupted, states fail, and societies unravel; people are displaced, deported, and detained; social costs like rising crime, domestic violence, and divorce kick in. Even “low-intensity” conflicts can wreak havoc on civilians and civilian life. One study of war-related deaths in sub-Saharan Africa during the 1980s noted that “the four horsemen of the apocalypse—famine, pestilence, death, and war—ride out together” (Slim 2008:90).
Researchers in the field of health and human rights have increasingly turned their attention to the epidemiology of war (Garfield et al. 2003; Thoms and Ron 2007). Death and disease have long been seen as part of the natural history of war. Thucydides (1881:127–28) described how refugees were swallowed up by famine and plague during the Peloponnesian War. “They perished in wild disorder.… The dead lay as they had died, one upon another, while others hardly alive wallowed in the streets and crawled about every fountain craving for water.” A 1939 medical journal noted that war offered “a splendid opportunity for the devastating virus, the bold bacillus, or the enterprising entamoeba” (Wigham 1939:49). People suffer from unhygienic conditions, polluted water, rapid exposure to multiple pathogens, rape, and sexually transmitted diseases; others endure emotional trauma of fear, pain, separation, and loss; soldiers are poisoned by toxic battlefields or tormented by post-traumatic stress (Smallman-Raynor and Cliff 2004:5). War exacts a double toll, spreading disease while simultaneously disrupting and diverting medical care. When humanitarian aid is available, it is often leveraged in exchange for political or military support (S. Gordon 2010:76). The aftershocks can affect public health and human development for decades (Ghobarah et al. 2002). Again, right implies duty. Growing healthcare capacities have given rise to new obligations to address indirect and long-term effects of war.
Lest the truism that “war” kills civilians absolve commanders or soldiers of their misdeeds, it should be stressed that human rights disasters flow predictably from certain means and modes of war. The Dirty War Index, for example, measures the effects on civilians of particular classes and uses of weapons (Hsiao-Hicks and Spagat 2008). An “armed violence morality index” models the risks associated with the kind and number of arms, the intent of belligerents, and the relative vulnerability of victims (Taback and Coupland 2005). Attacks on “dual-use” infrastructure, such as bridges and roads, electrical grids, or water purification plants, also erode public health and raise mortality rates in ways that can be modeled and measured. The fallout can settle far from the actual fighting. A 1991 Lancet article foretold the aftershocks of the Gulf War: “Bomb now, die later” (Kandela 1991).
Rights is also the thread that runs from jus in bello to jus post bellum, or justice in the wake of war (see, e.g., Bass 2004; Patterson 2012). Brian Orend notes (2000:219) the “overwhelming emptiness” of humanitarian law with regard to the ending of wars. Only the Hague Laws deal with war termination, and some of the provisions concerning trumpeters, buglers, and white flags read like rules at a Boy Scout camp.5 The pursuit of human rights in the wake of war is often fraught, but in many ways rights offer more relevant and realistic norms to govern post-conflict truth, justice, reconciliation, and compensation, providing a clear, liberal, blueprint for a new or reconstituted society (Stahn 2007:928). Rights also spell out the residual obligations belligerents hold in the wake of war and occupation. If a just peace is the goal of a just war, human rights help to define what that end state looks like. Here, too, there is greater room for rights than is usually supposed. The conventional wisdom cautions that human rights demands can make conflicts more intractable and peace more elusive because they raise the moral stakes and narrow the room for negotiation (for an overview of the claims see Sriram, Martin-Ortega, and Herman 2009). But recent research shows that “naming and shaming” media coverage appears to lead to shorter wars and a higher incidence of negotiated peace deals (Burgoon et al. 2015).
There is a great deal of interplay between human rights and humanitarian law. Still, the two regimes evolved independently, and these disparate origins are reflected in the letter and spirit of each field. Human rights emerged from the struggle between oppressed or disadvantaged people and their rulers. The laws of war sprang from customary practices of belligerents and, later, the legal conventions concluded between sovereign states. Rights were domestic norms that were then codified in international law; IHL was international from the start (Oberleitner 2015:10). Philosophically, human rights are universal in nature, while IHL leans toward a statist ethic and national security framework. Rights are founded on religious teaching, moral principles of humanism, liberal and socialist political theory, and a burgeoning body of legal doctrine and practice. They are animated by the voices of victims declaring that their rights have been violated and demanding justice. The laws of war are ameliorative rather than absolute, seeking a space for charity and mercy amid the brutal necessities of war. Traditionally, they governed just cause (jus ad bellum) as well as just conduct (jus in bello) through the principles of proportionality, distinction between combatants and noncombatants, and the economy of violence. Human rights, by contrast, set out a list of specific ends to which civilians are entitled. Interpretations and applications of IHL vary widely. The International Committee of the Red Cross stresses its commitment to humanity, while many states follow a more technical legalism that directs the discussion toward operational questions of targeting and proportionality and away from the concrete human suffering wrought by war.
Both regimes observe proportionality, but each weighs the economy of violence on a different scale. Under the laws of war the anticipated harm to civilian life or property must be consonant with the anticipated military advantages. In human rights, violence is allowed only to advance other, greater, rights. Military
