In short, IHL is “of” war: the laws that regulate the conduct of hostilities are designed to moderate but also to accommodate the pursuit of legitimate military ends. It revolves around an economy of violence which greatly values military necessity. The ICRC Commentary to the Additional Protocols notes that “necessity is the limit of legality. Any violence which exceeds the minimum that is necessary is unlawful and it is on this principle that all law relating to the conduct of hostilities is ultimately founded” (see Lamp 2011:232). The laws of war categorically forbid directly targeting civilians as such. But the right of civilians to be free from violence, indeed, the right of rights, the right to life, is a relative right, subject to operational demands, military advantage, and proportionality. For military lawyers, the central question with regard to collateral damage is: “Is it worth it?” Can incidental civilian casualties be justified by the military advantage anticipated? Depending on the military advantages at stake, the level of civilian harm can be high indeed.
Most striking is how elastic the idea is in practice, particularly on this question of proportionality. Here is then U.S. Secretary of Defense Donald Rumsfeld:
Now the word “proportion”—“proportionate” is interesting. And I don’t know that it’s appropriate. And I don’t know that I could define it. But it might be said—and I wouldn’t say it—[laughter]—but it might be said by some that to quickly and aggressively repress a prison riot in one location might help dissuade people in other locations from engaging in prison riots and breaking out of prison and killing more people. I don’t know if that’s true. It might also persuade the people who are still in there with weapons, killing each other and killing other people, to stop doing it. It’s—ah—your question’s too tough for me. I don’t know what “proportionate” would be. (quoted in Carmola 2007:93–94)
Secretary Rumsfeld was not just being coy. Yes, proportionality is a process of balancing, but the elements on the scale—“concrete” military advantage, force protection, the status of people, excessive or “clearly excessive” force—are themselves contested. The benefits and costs are forward-looking and speculative: anticipated advantages and anticipated casualties. The scale tilts sharply against civilians when belligerents see a mission as imperative or certain tactics as necessary. The apportionment of risk further undercuts the civilian idea. Modern militaries frequently place protection of their own soldiers on the scales, loosening rules of engagement or choosing munitions and tactics that reduce risks to soldiers but increase them for civilians.3
Eyal Benvenisti argues that armies construe their obligations narrowly in any case. “Armies interpret the law as granting them wide discretion,” he writes. “They wish to limit the commanders’ responsibilities rather than increase protection to civilians. They highlight the obligations imposed on the defending army. In applying the test of proportionality, they stipulate that the means used should be measured against the overall aim of winning the military conflict rather than against the particular aim of winning a specific battle. And this overall aim is defined subjectively” (Benvenisti 2006:95–96). Thus, while military lawyers may judge proportionality in terms of discrete attacks, human rights advocates will tally the cumulative effects of attacks or map broader patterns of excess. Land mines, cluster bombs, and depleted uranium munitions, for example, while legal for “approved” military use, can cause immediate as well as long-term bodily harm. Attacks on infrastructure or dual-use facilities having both a military and civilian purpose (communications networks, electrical plants, water treatment facilities) traditionally have been interpreted in immediate IHL terms, not with regard to long-run effects on human rights and public health.
This is not to say that IHL is putty in military hands. Some legal claims are persuasive and square with the current spirit of the law, while others overreach or fall flat. For example, U.S. officials, not very convincingly, have defended the use of targeted killings as necessary given the “imminent threat” posed, but cite a “flexible” or “elongated” concept of imminence to cover threats that are not, in fact, looming (Human Rights First 2013:2). The interests and inclinations of states tend to dominate the enterprise of IHL in any case. As Kretzmer (2009:27–28) notes, the law “never places an undue burden on the Parties to meet military necessity and to pursue their military purposes.” States want as free a hand as possible while remaining within the bounds of the law and the aura of legitimacy. The law of war provides just such semi-restraint. As the British Manual of the Law of Armed Conflict puts it, “The law of armed conflict is consistent with the economic and efficient use of force. It is intended to minimize the suffering caused by armed conflict rather than impede military efficiency” (quoted in Waters 2008:33).
If the law of war is malleably utilitarian—even instrumental—in nature, particularly with regard to proportionality, it might be tempting to characterize human rights as categorical or deontological. Human rights certainly drive a harder bargain than IHL does. Some acts—torture or inhuman treatment, arbitrary killings, degrading public health, destroying the fabric of civilian life—are never worth it, regardless of the strategic advantages they might produce. But rights are also consequentialist. Like IHL, they, too, involve weighing and judging, only the utility sought is humanitarian and rescue-oriented rather than strategic. The calculus is this: the human rights benefits of using force must outweigh the human rights costs of using force.4 How this plays out in policy and practice won’t always be clear, but this caveat helps to steel the civilian idea. It sets a high threshold for the use of violence and ensures that wars undertaken for humanitarian reasons are waged as humanely as possible from the standpoint of those civilians on the ground who are most affected by it.
Humanitarian law and human rights are not always at loggerheads, of course. The two regimes overlap along a critical range of rights: due process and detainee rights, the prohibition on torture and cruel, inhuman or degrading treatment, and discrimination based on race, sex, language, or religion. But on the military terrain of strategy, human rights struggle to be heard. Not only does humanitarian law tend to be pliant, but its traditional priorities—the economy of violence, noncombatant immunity, the humane treatment of sick, wounded, and captured soldiers—eclipse the new priorities of human rights. Especially in high-tech campaigns, humanitarian law as lingua franca drives the discussion toward military issues of “correct” or “successful” targeting and whether means and methods of attack were sufficiently restrained, and away from the broader suffering wrought by war. What Pentagon press officer wouldn’t rather see a story on GPS-equipped missiles than 1,200 words on declining public health or imperiled women’s rights?
The interchangeable semantics of “law of war,” or “law of armed conflict,” and “international humanitarian law” gloss over these differences and contribute to the confusion. The public relations windfall of couching military operations in humanitarian terms is undeniable. But the term “humanitarian law” is ambivalent at best. Given the violence they license, the words are “Orwellian,” says Yale Law School professor Michael Reisman (Kretzmer 2009:21). Some strict constructionists reject the appellation “humanitarian law” in favor of “operational law,” a term that captures the primacy of the military mission as well as the functional utility of the rules. As one U.S. judge advocate put it, IHL confuses “the end desired by the warrior with that desired by the humanitarian. True warriors are chivalrous, but their role is not humanitarian” (Morris 1997:13).
These tensions are becoming more acute, not less. An ambitious human rights agenda seeks, as Milanović (channeling Star Trek) says, “to (boldly) take human rights to places, be they extraterritorial situations or those of armed conflict, or both, where … no human rights have gone before” (Milanović 2011a:96). The introduction of rights has shaken up the field and weakened the authority of legal experts to define the legitimacy and justice of war. The (in)justice of the Iraq War, for example, was defined