Over-deference to special law can leave states thinking they’ve shed their human rights duties altogether, even with regard to classic rights like due process, humane detention, and just punishment (Ben-Naftali and Shany 2003:56; C. McCarthy 2008:107). Defending its treatment of detainees in the war on terror, the George W. Bush administration argued that human rights didn’t apply extraterritorially, and even if they did, they would be superseded by IHL. Some within the government argued that humanitarian law didn’t apply because the adversaries were “unlawful enemy combatants,” who did not respect the basic decorum of war. The administration eventually settled on special law. Testifying in 2006 before the UN Committee against Torture, John Bellinger, legal advisor to the U.S. Department of State, said, “Our view is simply that U.S. detention operations in Guantanamo, Afghanistan, and Iraq are part of ongoing armed conflicts and, accordingly, are governed by the law of armed conflict, which is the lex specialis applicable to those particular operations.”8 Special law was seconded by the U.S. Supreme Court, which ruled in the 2006 Hamdan case (a decision that studiously avoided any mention whatsoever of human rights) that Common Article 3 of the Geneva Conventions did apply to the Guantánamo detainees.9
Special law can become the rote military response to the turf challenge posed by human rights. “During combat operations,” says the official Rule of Law Handbook for American judge advocates, “the U.S. regards the law of war as the exclusive legal regime or a lex specialis … [which] operates to the exclusion of competing legal frameworks such as human rights law” (Judge Advocate General’s Legal Center and School 2009: 80). The 1,200-page Department of Defense Law of War Manual, published in 2015, has little patience for rights, endorsing the law of war (the manual’s preferred nomenclature in place of the softer “humanitarian law”) as “the controlling body of law with regard to the conduct of hostilities and the protection of war victims” (U.S. Department of Defense, Office of General Counsel 2015:901). Other times one finds grudging respect for rights. Remarkably, the U.S. Army’s chief legal manual from 1956 said that the purpose of the laws of war was to safeguard “certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians.” The manual concluded that observing human rights would ultimately “facilitate[e] the restoration of peace” (U.S. Army 1956:para. 2(b), 2(c)). Fifty years later, the U.S. Operational Law Handbook 2006 stated that human rights obligations based on conventional international law “fall within the category of ‘aspiration’ rather than ‘obligation,’ ” but that “human rights law based on customary international law binds all states, in all circumstances” (Grimes et al. 2006:50). The 2009 Rule of Law Handbook, the main resource for the military lawyers knowns as judge advocate generals, or JAGs, seems certain that human rights work: “Irrespective of the specific legal context, rule of law operations should be guided and informed by human rights law purely as a matter of efficacy” (Judge Advocate General’s Legal Center and School 2009: 80).
Military views are not monolithic. Commanders have an absolute duty to see that their troops observe IHL, but they have latitude in identifying and handling breaches. Some JAGs see their role as “force multipliers” whose job is to facilitate rather than fetter violence. Lt. Col. Tony Montgomery, the judge advocate who approved the NATO bombing of the Belgrade television station during the Kosovo crisis, said “judges don’t lay down the law. We take guidance from our government on how much of the consequences they are willing to accept” (“They are just covering their ass” 2001). Others take a more independent stand. Some of the most dogged critics of the detainee program at Guantánamo were the JAGs assigned to represent them before military commissions. Unit leaders see the law boiled down to rules of engagement, while commanders consider the broader impact of the law on strategic goals.
Proponents of special law say it is the only way to set clear standards for soldiers. The underlying concern is a serious one. Are the soldiers engaged in law enforcement? Military action? Something in between? As D. Kennedy (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