military demobilizations. The Inter-American Commission on Human Rights has ruled that human rights and humanitarian law “share a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity.”16 Calling the provisions of Common Article 3 of the 1949 Geneva Conventions “pure human rights law,” the Commission has directly applied IHL, even weighing in on specific violations of the Geneva Conventions.17 As for the duty to prevent and protect, the Americans are a step ahead of the Europeans. In a series of cases arising from the protracted civil war in Colombia, the Inter-American Court imposed “special obligations” on the government in Bogotá to safeguard vulnerable groups from anti-government insurgents as well as pro-government paramilitaries (Burgorgue-Larsen and Úbeda de Torres 2011:156).
Grievants in the regional courts sue governments, and only governments. This has prompted jurists to look up the chain of command to rules of engagement and other policy decisions taken at the seat of power (T. Smith 2010:33–34). Other courts have embraced individual criminal responsibility. The ad hoc tribunals such as the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR); hybrid courts like the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC); as well as domestic ad hocs such as the Iraqi High Criminal Court, enforce a mix of international human rights and war crimes conventions and customs as well as domestic statutes. The International Criminal Court (ICC) is fundamentally a human rights court. The Rome Treaty applies whether violations are committed in international or domestic conflicts, during humanitarian or non-humanitarian missions, or even during peacetime; no nexus with war is required. These courts have internalized much of the language and many of the assumptions of rights. One of the judges on the Iraqi High Criminal Court noted that the court’s rulings on war crimes were every bit pronouncements on human rights principles (Global Justice Center 2008:2).
Protecting civilians has emerged as a defining goal at the United Nations as well. Up until the 1960s the UN stuck to the Charter principle of non-interference in the internal affairs of states. In the wake of the 1967 Six-Day War, the UN General Assembly (1967) resolved that “essential and inalienable human rights should be respected even during the vicissitudes of war.” The 1968 Teheran Conference on Human Rights decried the failure of the Hague and Geneva Laws to deter or prevent war, declaring that “peace is the underlying condition for the full observance of human rights and war is their negation” (Human Rights in Armed Conflict 1968). The Teheran Proclamation (1968) noted that “Massive denials of human rights, arising out of aggression or any armed conflict with their tragic consequences, and resulting in untold human misery, engender reactions which could engulf the world in ever growing hostilities. It is the obligation of the international community to co-operate in eradicating such scourges.” In September 1970 the Secretary General concluded that human rights instruments “may prove of value in regard to periods of armed conflict,” thus anticipating the reporting practices of the Human Rights Committee. That December the General Assembly affirmed that “Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict” (Droege 2008:505).
During the 1970s “human rights in armed conflicts” became “one of the most popular phrases in the United Nations political vocabulary” (Suter 1976:394). Reflecting general humanitarian sentiment but not the details of rights, the idea helped to rally diplomatic support for the 1977 Additional Protocols. In the 1980s human rights protections were wedded to the expanding peacekeeping efforts. The Declaration of Turku (1990), a private initiative geared toward “situations of internal violence, disturbances, tensions and public emergency” was integrated into UN rhetoric and sometimes practice.18 The Declaration saw human rights and humanitarian law as the warp and woof of norms designed to “protect the rights of groups, minorities and peoples, including their dignity and identity” (Declaration of Minimum Humanitarian Standards 1995; Droege 2008:7). More recently, “human security” (as opposed to national security) has been the coin of the realm. Since 2000, the UN has adopted more than 300 resolutions upholding human rights in the midst of armed conflict, and UN agencies continue to affirm the salience of human rights laws to the conduct of war and occupation (Doswald-Beck 2013:140).
While the UN has instituted some enforcement mechanisms, it generally has proceeded cautiously, elaborating IHL rather than supplanting it with new human rights laws.19 States still dominate the process. Several UN human rights treaties allow individuals to lodge complaints against states, though only if the target state recognizes the competence of the UN to receive individual complaints. The UN is often slow to recognize and respond to crises. The Security Council did not adopt a thematic resolution on civilian protections until 1999, at the end of a decade marked by ethnic cleansing and genocide. Since then, Secretaries-General Kofi Annan and Ban Ki-moon both have criticized the UN failure to adapt to the changing character of war, though the issue remains shackled to the broader question of humanitarian intervention and the protection of civilians, or “PoC.” Even as the UN extols the civilian idea, its own humanitarian aid missions often “struggle over what it means for a peacekeeping operation to protect civilians, in definition and in practice” (Roberts 2009:47).
The trajectory is similar at the Human Rights Commission, the principal forum for UN human rights diplomacy. The Commission was established in 1946 and reconstituted as the Human Rights Council in 2006. For years, the Commission saw and heard no evil. Out of deference to member states it failed to condemn genocide in Cambodia, mass murder in Uganda, and state terror in the Central African Republic. Sotto voce criticism of the Tiananmen Square massacre and Sudan’s genocidal murders brought the Commission no honor either. But in other cases the Commission/Council has deputized a stream of special rapporteurs, experts, and others to investigate human rights abuses in war. Rapporteurs have been barred entry, deported, harassed, and denounced. They’ve also made a difference, spotlighting specific allegations as well as general themes: distinction and proportionality, targeted killing, drones, airstrikes, blockades, mercy killings, cluster bombs, perfidy, human shields, urban counterinsurgency, and reparations (Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions 2010; Alston, Morgan-Foster, and Abresch 2008). The Council is still dogged by controversy, most recently over the Goldstone report on the Gaza war and, to a lesser extent, the Alston report on drone warfare. But overall its calendar looks like Max Weber’s slow boring of hard boards: seeking to curb the use of child soldiers, diminish sexual violence during armed conflict, rein in abuses by mercenaries, stop summary executions, end forced displacement of populations, strengthen national human rights institutions, and develop a body of law to bind private military and security companies to protect human rights.20
Constituting Civilians
Human rights norms don’t merely shore up noncombatant immunity against military necessity. They also constitute civilians around extramilitary human rights norms, establishing the identity and status of civilians within a rights framework. The Oxford English Dictionary defines constitutive principles as those “having the power of constituting, establishing, or giving formal, definite, or organized existence to something.” Human rights norms, like all norms, establish what Ward Thomas (2001:17) calls “matrices of meaning” that help us make sense of the world. “Hard” laws and institutions as well as “soft” social ideas and practices fix boundaries and set expectations. People who were exposed to violence are now protected. Acts once considered unremarkable are set firmly beyond the pale.
The idea that civilians should be protected in wartime is, at least in the abstract, an undisputed norm. Derived from classical ideas of mercy and restraint and given moral depth by the just war tradition, protecting civilians has arguably become the linchpin of modern humanitarian norms. Clearly, this isn’t enough. The laws of war have been refined and reinforced, and humanitarian sentiment is running high, yet civilians continue to bear the brunt of war. New wars have become the new killing fields. Since 1990, some eight million civilians, most of them in central Africa, have died from the direct and indirect effects of war.21 As many as 100 million people have been driven from their homes or countries. According
