Human rights and humanitarian law are not two stone tablets, one we consult in war, the other in peace. The regimes often borrow and trade ideas. Nor are human rights as absolute or otherworldly as critics claim. The movement is hardly pacifist. For every human rights activist calling for an end to war there are two clamoring for armed intervention to protect rights. The responsibility to protect has easily been assimilated to the culture of rights. Virtually all mainline rights groups promote some version of R2P, accepting the possibility that military force can serve humanitarian ends. Human rights choices are not always black and white in any case. Rights advocates sometimes cooperate and compromise with perpetrators of violence, leveraging compliance by appealing to self-interest and welcoming even half-measures if they ease the suffering of innocents.8
The growing array of agencies, institutions, and courts that invoke human rights in war tend to be pragmatic as well. The greater the disparity of power and risk between soldiers and civilians, the more these bodies tend to emphasize the human rights of civilians as against the war rights of belligerents. The rule of thumb is that the scope of obligations is relative to the degree of control. As conditions come under greater control, expectations grow from negative rights (freedom from arbitrary killing, freedom from torture, freedom of speech or religion) to positive freedoms (economic well-being, educational or cultural rights) (Cerone 2006:1504–5). Expectations are highest when armed forces exercise “effective control” over people, property, or territory (Turkey in Northern Cyprus, Israel in the West Bank, Britain in Southern Iraq, etc.).
Human rights courts have been judging the conduct of war for half a century. Some of the earliest cases decided by the European Commission of Human Rights (today the European Court of Human Rights, ECtHR) dealt with the British counterinsurgency in Cyprus.9 The ECtHR has since adjudicated hundreds of combat and occupation cases, all stemming from “intractable” ethnic, separatist, or insurgent conflicts: Northern Ireland, Cyprus (again), Turkey, Chechnya, Armenia, and Azerbaijan. More than 3,000 petitions arising from the 2008 South Ossetia war have been lodged with the Court, most by ethnic Russians claiming they were abused by Georgian troops. The Court has recently taken up several cases arising from the war in Iraq.
The ECtHR tends to apply human rights law directly to the conduct of war, scarcely mentioning IHL at all. On the right to life, for instance, the Court does not categorically forbid killing in the context of armed conflict; no human rights treaty does that. Rather, no one shall arbitrarily be deprived of the right to life. The Convention holds that killing may result only “from the use of force which is no more than absolutely necessary” (Art. 2(2)). The Court has applied this single standard to clashes between rioters and police officers, small armed attacks (a PKK ambush in Eastern Turkey), major battles (a thousand irregular fighters arrayed against Russian troops in Chechnya), and a counter-terror operation in which plainclothes SAS forces surveilled and then killed three IRA operatives on city streets in Gibraltar (see Abresch 2005:753).
The ECtHR grants member states a wide margin of appreciation in determining the existence of a state of emergency and the appropriateness of derogations. Nonetheless, the Court’s decisions have unsettled some of the basic assumptions of militaries at war. It has set a high threshold for the use of lethal force and has rebuffed many of the necessity and fog-of-war defenses available in IHL. The Court has breathed rigor into the concepts of discrimination and proportionality, and set strict criteria for the conduct of investigations, a point that is critical given that many courts-martial fail (or are never convened) because shoddy or on-the-fly investigations can’t support the prosecution of alleged atrocities. The Court has examined, inter alia, the right to life of soldiers and civilians, the adequacy of operational planning, the definition of military advantage, arbitrary detention, torture and forcible return, admissibility of evidence obtained under torture, the rule of law in low-intensity conflicts, state responses to terrorism, and “rendition,” or transferring a prisoner to another country for interrogation.10
Some of the most closely watched decisions have involved the Iraq War. In April 2004, British Armed Forces Minister Adam Ingram argued that Iraqi civilians couldn’t petition the ECtHR because they held “no rights” under the Convention (Bowring 2008:74). That defense was quickly dispelled. Not only did human rights apply in war, but they applied when State Parties engaged in war on the territory of non-State Parties.11 The Court ruled that the UK violated the Convention when it transferred detainees from British custody in Basra into the hands of an Iraqi court where they potentially faced the death penalty.12 Other cases have run the gamut of wartime violence. British troops have been tried for illegally killing Iraqis while on patrol, during a raid, and in a cross-fire incident; illegally detaining an Iraqi-Briton; beating an Iraqi suspect and then forcing him to swim across a river, where he drowned; and torturing a detainee to death.13
As noted, the Court has replaced the spatial model of effective control with an individual model of jurisdiction, as the “exercise of physical power and control over the person in question.”14 This is quintessential human rights language, evoking the torturer looming over the shackled prisoner, or the dissident being snatched off the street and bundled into a van. The judges conceded that applying the Convention within a controlled British military compound in Iraq was “exceptional,” but 40 years of jurisprudence on extraterritoriality and the British Army’s clear control over the detainees placed the military base within the legal space of the Convention. Remarkably, the Court held in the Al-Skeini case that soldiers in Iraq could also be bound by the Convention when they ventured outside the compound walls as they conducted “patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations.” Even in kinetic military operations (e.g., a gunfight during a patrol), the “United Kingdom, through its soldiers engaged in security operations … exercised authority and control over individuals killed in the course of such security operations.”15
The regime that has grown up around the American Convention on Human Rights (1978) has examined the protection of human rights in states of emergency, armed invasions, civil strife, civil wars, state terrorism, and 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