Regulating Military Force Series – Rhetoric and Warfare in the Age of Rights

Editors’ note: The author delivered remarks on the subject of this post at the conference “International Law and the Regulation of Resort to Force: Exhaustion, Destruction, Rebirth?” at the Centre for International Humanitarian and Operational Law, Palacký University in Olomouc, Czech Republic.

“Ours is the age of rights. Human rights is the idea of our time, the only political-moral idea that has received universal acceptance.”

Louis Henkin famously opens the preface to his 1990 monograph, The Age of Rights, with this exultant appraisal of the role of human rights in the collective global public consciousness following the Second World War. Pages later in the introduction, Henkin asserts, “Human rights are rights; they are not merely aspirations . . . . To call them ‘rights’ implies that they are claims ‘as of right,’. . . they need not be earned or deserved.”

Given the prominent place of human rights in global discourse, it is certainly reasonable to describe the era since the close of the Second World War as the “Age of Rights.” Considering the seemingly universal nature of human rights and the prospective power of claims that “need not be earned or deserved,” the contemporary expansion of human rights into the armed conflict context seems logical and, indeed, predictable.

The language of human rights—in this, the Age of Rights—is increasingly invoked to engage with or evaluate events in the setting of armed conflict. However, does the pervasive rhetoric of rights significantly affect the actual conduct of hostilities in practice? And what is the source of the prevailing perception that human rights law and the law of armed conflict share a close relationship?

Early Harmonizing Efforts and the International Year for Human Rights

The movement seeking to merge human rights law and the law of armed conflict can be traced to the timeframe of the twentieth anniversary of the Universal Declaration of Human Rights. In recognition of the International Year for Human Rights, the International Conference on Human Rights was convened in Tehran for a period of three weeks in the spring of 1968.

At a plenary meeting that winter, the United Nations General Assembly (UNGA) adopted Resolution 2444 (XIII), titled “Respect for Human Rights in Armed Conflicts.” The UNGA Resolution takes note of Resolution XXIII adopted at the conference in Tehran a few months earlier.

UNGA Resolution 2444 (XIII) affirms some basic tenets of international law involving armed conflict. The Resolution then goes on to invite the UN Secretary-General to study, in coordination with the International Committee for the Red Cross (ICRC) two matters: (1) steps that can be taken to improve compliance with existing international law; and (2) the need for additional international conventions.

If the goal of the organizers of the Tehran Conference was to raise awareness of the prospective connections between human rights and armed conflict, the endeavor was a success. However, if the intent was to encourage infusing the law of war with human rights from a positivist perspective, the Tehran Conference and its progeny were a failure. Even today, more than five decades on from the conference, no such source of conventional law exists.

Origin Story – Convergence and Confluence of War and Rights

Not long after the Tehran Conference, Sean MacBride, then the Secretary-General of the International Commission of Jurists and a driving force behind the event, denounced the failure of States to harmonize the Hague and Geneva streams of the law of war with international human rights law. At the time, he urged “that both codes [law of war and human rights law] should be brought into conformity with each other and reinforced” (p. 380, emphasis added).

MacBride’s suggested model of bringing the Hague and Geneva streams of the law of war into conformity with human rights law can be conceptualized as a confluence of the bodies of law. Just two years before the Tehran Conference, a slightly different conceptual model was proposed by Jean Pictet of the ICRC.

Pictet visualized harmonizing Hague law, Geneva law, and human rights under the shared umbrella of what he called at the time “international humanitarian law.” Years later, though, Pictet emphasized the importance of recognizing “that the two fields [law of war and human rights] are interrelated and, conversely, that they are distinct and should remain so” (italicized emphasis in original, underlined emphasis added).

Rather than envisaging the confluence of the law of war and human rights, as MacBride did, Pictet’s preference for harmonizing the two while insisting on maintaining the distinct nature of each can be conceptualized as more of a convergence than a confluence.

Whether confluence or convergence, both visions share at least two significant conceptual characteristics. First, both overtly express the intent to seek out common ground among human rights law and the two streams, Hague and Geneva, of the law of war. In the process, both approaches expunge the vital differences between the frameworks in theory and practice.

Second, both approaches construct what is meant to be the foundation of a positivist legal framework from a purely conceptual vision. In doing so, neither approach draws from general State practice—whether conventional or customary—to support the professed relationship between human rights and armed conflict. Indeed, on this note, MacBride laments that governments “are dominated by their military establishments” and are therefore “deaf to all humanitarian considerations” involved in the Hague stream of the law of war (p. 375).

With this precarious theoretical foundation fashioned at the outset of the project to expand human rights law into the armed conflict context, it is little wonder that the Tehran Conference failed to generate positive law reflecting the union. These conceptual and practical shortcomings that have plagued the project from the beginning endure still today.

Conceptual Limitations Continue to Afflict Practical Application

Suggesting that consensus exists regarding the existence of the relationship between human rights law and the law of armed conflict, even if the precise nature of that relationship remains unsettled, is a common refrain in contemporary discourse. While the sheer volume of perspectives endorsing some manner of merger may appear convincing, most are built solely on subsidiary sources of customary law while perpetuating the same conceptual limitations that have afflicted the expansionist project from the outset.

One prominent example is jurisprudence from the International Court of Justice (ICJ), specifically two observations drawn from the Nuclear Weapons and Wall advisory opinions.

The Nuclear Weapons advisory opinion, published in 1996, makes note of differing views presented to the Court involving the continued applicability of the International Covenant on Civil and Political Rights (ICCPR) during armed conflict. The ensuing paragraph then begins, “The Court observes that the protection of the [ICCPR] does not cease in times of war.”

The analysis continues by asserting that a determination of whether a deprivation of life in the armed conflict context is “arbitrary” pursuant to the ICCPR “can only be decided by reference to the law applicable in armed conflict.”

However, the opinion fails to explain the conceptual basis upon which the Court “observes” that the ICCPR continues to apply in armed conflict, to identify the extensive and virtually uniform State practice with an accompanying opinio juris that supports this observation, or to rationalize what value is added by referring to the ICCPR to interpret the law of armed conflict.

These same limitations are replicated and amplified eight years later in Wall. In this 2004 advisory opinion, the ICJ cites Nuclear Weapons while restating the premise that the ICCPR continues to apply during armed conflict. In the ensuing paragraph, Wall notes, “It remains to be determined whether [relevant human rights treaties] are applicable only on the territories of the States parties thereto or whether they are also applicable outside those territories and, if so, in what circumstances.”

What started as an observation regarding the continued applicability of the ICCPR during armed conflict, with no explanation of the general State practice consulted to support the contention, ends with a confession that it “remains to be determined” precisely how this continued applicability functions in practice.

If it is unclear what value consulting human rights law in addition to the law of armed conflict (LOAC) adds, and it also remains to be determined precisely how human rights law is supposed to function during armed conflict, it is certainly worth pondering why the “continued application” perspective remains so pervasive in contemporary discourse even in the apparent absence of a persuasive doctrinal foundation.

Three Purposes of the IHL/IHRL Project

An insightful explanation for the prevalence is presented by Professor Marko Milanovic in an article published in 2009 that remains just as poignant and relevant today. He presents three purposes for what he refers to as the “IHL/IHRL project” (that is, international humanitarian law/international human rights law).

The first purpose of the project, as articulated by Professor Milanovic, is to ensure that “human beings embroiled in armed conflict still retain those rights that are inherent in their human dignity . . . regardless of considerations of reciprocity between the warring parties” (p. 460). This purpose resonates with Louis Henkin’s characterization, from the introduction to The Age of Rights, that calling human rights “‘rights’ implies that they are claims ‘as of right,’ . . . they need not be earned or deserved.”

The second objective of the IHL/IHRL project, which Professor Milanovic describes as “a more radical purpose,” is “to shift the balance between effectiveness and humanitarianism, struck by States during the drafting of the major IHL treaties, in the direction of humanitarianism” (p. 460). This second purpose resonates with Sean MacBride’s assertion, around the time of the International Year of Human Rights and the Tehran Conference, that the merger of the relevant bodies of law is necessary, in part, because “major military powers [do] not wish to envisage any limitation in the methods of warfare and type of weapons they could use” (p. 385).

Finally, the third purpose expressed by Professor Milanovic for the IHL/IHRL project is “the enforcement of IHL through human rights mechanisms.” As he explains, “even if human rights substantively added nothing to IHL, there would still be a point in regarding IHL and IHRL as two complementary bodies of law” (p. 460, emphasis added).

By framing the law of armed conflict in the language of human rights, the former can now, at least in theory, “be enforced before political bodies, such as the Human Rights Council or UN political organs more generally, or through judicial and quasi-judicial mechanisms” (p. 460).

However, these political, judicial, or quasi-judicial human rights entities have not been explicitly conferred authority by States to interpret or enforce the law of armed conflict. Moreover, the primary protagonists involved in the IHL/IHRL project from which the apparent conferral of authority originates likewise qualify as subsidiary sources of customary law.

The gradual result of this democratization project has been the fragmentation of the law of armed conflict along with the deputization of “enforcement” procedures that are conferred with no responsibility to either directly apply the law or evaluate its compliance in practice.

Reevaluating the Apparent Relationship Between Armed Conflict and Human Rights

Considering the questionable foundation upon which the IHL/IHRL project was initially built more than five decades ago and given the enduring uncertainty regarding how these two bodies of law function together in theory and in practice, perhaps the time is right to reevaluate the feasibility and advisability of this movement.

In the absence of extensive and virtually uniform State practice with an accompanying opinio juris to persuasively establish otherwise, I suggest that there is not—and never has been—a “relationship” between human rights law and the law of armed conflict. This is not to suggest, however, that human rights law necessarily ceases to apply altogether in the presence of an armed conflict.

Rather, each body of law must be activated by some functional mechanism in order to apply. To actuate LOAC, belligerents must be fighting against each other in an armed conflict. To trigger human rights law, an agent of a government must exercise sovereign authority in relation to a subject of that government.

This is the basic conceptual formulation developed in a chapter, called “Acting as a Sovereign Versus Acting as a Belligerent,” written by Dean Jens David Ohlin and published in a book of collected essays that was also edited by Dean Ohlin.

Pursuant to this conceptual framework, there is no formal relationship between the two bodies of law. Rather, one or another is activated based on the conduct of an agent taking action in a particular circumstance. Even in the absence of a formal relationship between the two bodies of law, there are a number of circumstances for which both function in a similar manner. The prohibition against torture, for example, applies both in the governance and armed conflict settings. War crimes can only be committed during an armed conflict, but crimes against humanity and genocide can be committed in either context.

For these few areas of direct overlap, it is suitable to refer to “connections” between human rights law and the law of armed conflict, even if no formal relationship exists between the two.

Sovereign Versus Belligerent Framework in Practical Application

If this conceptual framework were applied to select contexts of contemporary relevance, human rights law would apply if—and only if—the conduct under examination is performed by an agent on behalf of a State that is acting in the capacity as a sovereign.

The “large-scale destruction of civilian” property by Russia in Ukraine, for example, would not be deemed to “violate both IHL and IHRL” (emphasis added), even if war crimes have reportedly been committed by Russian military forces on an unfathomable scale.

In the ongoing conflict between Israel and Hamas, the observation that international human rights law applies “at all times” may be correct in a general sense. However, IHRL would not apply to Israel in the conduct of hostilities.

If that body of law does not apply in this context, it would be incorrect to describe events in Gaza as “horrifying violations of human rights,” no matter how horrendous the degree of human suffering experienced as a result of the conflict. This also means the U.S. Leahy Law would not be a factor in security cooperation with Israel. The prospective existence of “gross violations of human rights” cannot be established if that body of law does not apply.

Finally, governments such as Canada with citizens being detained indefinitely by non-State armed groups in Syria would have no legal obligation to seek repatriation of the detainees. Even in light of an opinion written by a UN special rapporteur suggesting that repatriation “is the only international law-compliant response to the increasingly complex and precarious human rights” conditions faced in the camps, human rights obligations would accrue only if the relevant government is acting as a sovereign in relation to the subject.

Implementing the sovereign/belligerent conceptual framework in practice may significantly constrain the corpus of agencies, organizations, and advocates currently engaged in public discourse involving compliance with international law during armed conflict. Although these participants may be reluctant to cede the fertile soil human rights rhetoric presents, doing so may well encourage a popular revitalization of the law of armed conflict as it exists in doctrine.

Conclusion

There is no doubt that ours is the Age of Rights. Conceptualizing a set of rights that “need not be earned or deserved” regardless of the context, as Louis Henkin suggests while describing the theoretical centerpiece of this Age, has predictably encouraged the virtually unconstrained expansion of human rights law—including into the context of armed conflict.

At a time when the very legitimacy of the law of armed conflict is seemingly challenged in the face of contemporary full-spectrum armed conflicts, the time may be right for a collective commitment to doctrinal rigor while interpreting and applying the law of armed conflict. Perhaps international law as it exists is not fit for purpose in light of the indescribable suffering experienced as a result of armed conflict. An alternative framing, however, is that the law continues to function as intended but unrealistic expectations related to the purpose and application of international law have eroded popular perceptions of the effectiveness of the law.

Human rights law has enjoyed seemingly unrestrained expansion in relation to armed conflict since around the time of the International Year for Human Rights more than fifty years ago. Unless the very nature of armed conflict has experienced a fundamental alignment with that of domestic governance since the close of the Second World War, the bodies of international law developed to regulate both should remain separate. Reconciling prevailing popular rhetoric with doctrinal legal reality remains possible, but that process begins with a collective acknowledgment that there is no direct relationship between human rights law and the law of armed conflict.

This has always been the case, and it remains so today—even in the Age of Rights.

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Brian L. Cox is a doctoral candidate lecturer and J.S.D. candidate at Cornell Law School, a visiting scholar at the University of Ottawa Faculty of Law (Common Law Section) in Ontario, and a retired U.S. Army judge advocate.

 

 

Photo credit: Staff Sgt. Jose H. Rodriguez