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International Law and the Humanization of Warfare
Published online by Cambridge University Press: 18 January 2024
Abstract
The trend toward the “humanization” of international law reflects a greater emphasis on individuals rather than simply states as objects of concern. The advance of human rights law (HRL) has been an important impetus for this trend. Some observers suggest that humanization can be furthered even more by applying HRL rather than international humanitarian law (IHL) to hostilities between states and nonstate armed groups, unless a state explicitly declares that it is engaged in an armed conflict. This essay argues, however, that a court should not defer to a state's characterization of hostilities, but should base its analysis on whether hostilities meet the criteria for an armed conflict. Applying HRL to hostilities that effectively are an armed conflict but not acknowledged as such risks diluting the legitimacy and normative force of HRL. On the one hand, if a court applies conventional stringent HRL standards, this body of law may be seen as unrealistic and is likely to be ignored. On the other hand, a court that adapts HRL standards to armed conflict may need to take a consequentialist approach at odds with HRL's deontological foundations. Clearly differentiating between HRL and IHL may thus best promote the humanization of warfare.
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- Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of Carnegie Council for Ethics in International Affairs
Footnotes
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I am grateful to Janina Dill, Marko Milanovic, and Ken Watkin for valuable comments on a draft of this essay.
References
NOTES
1 According to the Universal Declaration of Human Rights, “All human beings are born free and equal in dignity and rights.” United Nations General Assembly, art. 1, Universal Declaration of Human Rights, December 10, 1948.
2 Meron, Theodor, The Humanization of International Law (Leiden, Holland: Brill, 2006)Google Scholar.
3 Ibid., p. xv.
4 Ibid., p. 1. See also Meron, Theodor, “The Humanization of Humanitarian Law,” American Journal of International Law 94, no. 2 (April 2000), pp. 239–78CrossRefGoogle Scholar.
5 I use the term “human rights law” rather than “international human rights law” simply to reflect that enforcement mainly occurs by human rights bodies applying regional human rights conventions. Regional conventions nonetheless can be regarded for the most part as reflecting commonly accepted international standards.
6 For the sake of clarity, I use the colloquial general term “war” in this essay rather than the technical legal term “armed conflict,” except when referring to situations in which the legal standard for the latter is satisfied.
7 This is the case at least regarding internal conflicts within a state's territory. See Doswald-Beck, Louise, “The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers?,” International Review of the Red Cross 88, no. 864 (December 2006), pp. 881–904CrossRefGoogle Scholar, at p. 890; and Abresch, William, “A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya,” European Journal of International Law 16, no. 4 (September 2005), pp. 741–67CrossRefGoogle Scholar.
8 The Prosecutor v. Duško Tadić, IT-94-1-AR72, decision on the defense motion for interlocutory appeal on jurisdiction (International Criminal Tribunal for the Former Yugoslavia Appeals Chamber, October 2, 1995), sec. 70: www.icty.org/x/cases/tadic/acdec/en/51002.htm; and Committee on the Use of Force, International Law Association, Final Report on the Meaning of Armed Conflict in International Law (Hague Conference, 2010).
9 Uppsala Conflict Data Program, “Armed Conflicts by Type and Year Armed Conflict by Type, 1946–2016” (Uppsala, Sweden: Uppsala Conflict Data Program, Uppsala University, 2017).
10 Milanovic, Marko and Hadzi-Vidanovic, Vidan, “A Taxonomy of Armed Conflict,” in White, Nigel and Henderson, Christian, eds., Research Handbook on International Conflict and Security Law: Jus ad Bellum, Jus in Bello and Jus post Bellum (Cheltenham, U.K.: Edward Elgar, 2013), pp. 256–314Google Scholar, at pp. 254, 308–9.
11 A state's domestic law governing its use of force must conform to HRL.
12 See Milanovic, Marko, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (New York: Oxford University Press, 2011)CrossRefGoogle Scholar; and Watkin, Kenneth, Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict (Oxford: Oxford University Press, 2016)CrossRefGoogle Scholar.
13 Milanovic, Extraterritorial Application of Human Rights Treaties, pp. 109–10.
14 Watkin, Fighting at the Legal Boundaries, pp. 458–64.
15 Milanovic, Extraterritorial Application of Human Rights Treaties, p. 115.
16 “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” advisory opinion, 2004 I.C.J. 136 (July 9), para. 106. As the International Committee of the Red Cross states, “IHL rules on the conduct of hostilities would govern the use of force against lawful targets, i.e., the fighters and civilians directly participating in hostilities . . . . Any concomitant use of force against persons protected against direct attack would remain governed by the more restrictive rules on the use of force in law enforcement operations.” International Committee of the Red Cross, International Humanitarian Law and the Challenges of Armed Conflicts in 2015 (report prepared for the 32nd International Conference of the Red Cross and Red Crescent, Geneva, December 8–10, 2015), sec. 179.
17 European Court of Human Rights, Council of Europe, art. 2, European Convention on Human Rights, November 4, 1950.
18 Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, September 7, 1990, sec. 9.
19 Human Rights Council, United Nations General Assembly, art. 70, Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, Christof Heyns, A/HRC/26/36, April 1, 2014.
20 McCann v. United Kingdom, 21 E.H.H.R., App. no. 18984/91 (September 27, 1995).
21 Renzo, Massimo, “Rights Forfeiture and Liability to Harm,” Journal of Political Philosophy 25, no. 3 (September 2017), pp. 324–42CrossRefGoogle Scholar.
22 See Public Committee against Torture in Israel v. Government of Israel, H.C.J. 769/02, Supreme Court of Israel Judgment (December 13, 2006) (Ehud Barak, President Emeritus), sec. 57: “The Court will ask itself if a reasonable military commander could have made the decision which was made. The question is whether the decision of the military commander falls within the zone of reasonable activity on the part of the military commander. If the answer is yes, the Court will not exchange the military commander's security discretion with the security discretion of the Court.”
23 Case of Hassan v. The United Kingdom, European Court of Human Rights, No. 29750/09, September 16, hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-146501%22]}.
24 See, for example, Isayeva v. Russia, European Court of Human Rights, App. no. 57950/00, Judgment (February 24, 2005), sec. 19, hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-68381%22]}.
25 New York Times, “Chechen official puts death toll for 2 wars at up to 160,000,” August 16, 2005, www.nytimes.com/2005/08/16/world/europe/chechen-official-puts-death-toll-for-2-wars-at-up-to-160000.html.
26 Ibid.
27 Gilligan, Emma, Terror in Chechnya: Russia and the Tragedy of Civilians in War (Princeton, N.J.: Princeton University Press, 2010), p. 3Google Scholar.
28 For discussion of several of these cases, see Abresch, “A Human Rights Law of Internal Armed Conflict.”
29 Kerimova et al. v. Russia, European Court of Human Rights, Judgment, App. No. 29851/05, May 3, 2011: www.refworld.org/cases,ECHR,4dc90a3d2.html (2012).
30 Ibid., para. 245.
31 Ibid., para. 31.
32 Ibid., para. 253.
33 Ibid., para. 238.
34 Ibid., para. 246.
35 Ibid., para. 246.
36 Ibid., para. 236.
37 Ibid., para. 236.
38 Ibid., para. 247.
39 Ibid., para. 248.
40 Ibid., para. 251.
41 Ibid., para. 252.
42 Ibid., para. 253.
43 Ibid., para. 253.
44 Ibid., para. 254.
45 Watkin, Fighting at the Legal Boundaries, p. 555.
46 Doswald-Beck, “The Right to Life in Armed Conflict,” p. 884.
47 Isayeva, sec. 176.
48 Milanovic, Extraterritorial Application of Human Rights Treaties, pp. 114–15 (emphasis in original).
49 Kenneth Watkin, “Urban Warfare: Policing Conduct,” in Claire Finkelstein, Christopher Fuller, Jens Ohlin, and Mitt Regan, eds., Fighting War as Crime and Crime as War: Alternative Legal Frameworks for Asymmetric Conflict (Oxford University Press, forthcoming).
50 For concern about this conceptualization of human rights, see Verdirame, Guglielmo, “Rescuing Human Rights from Proportionality,” in Cruft, Rowan, Liao, S. Matthew, and Renzo, Massimo, eds., Philosophical Foundations of Human Rights (Oxford: Oxford University Press, 2015), pp. 341–59, at p. 343CrossRefGoogle Scholar.
51 There may be less reluctance if those residents are joined in the hostilities by persons from other states.
52 Watkin, Fighting at the Legal Boundaries, pp. 223–28. While I do not have the space to discuss it here, Watkin offers a sophisticated analytical framework that eschews reliance on rigid legal categories in favor of an approach that is sensitive to the continuum of violence that states may face.
53 Juan Carlos Abella v. Argentina, Case 11.137, Report No. 55/97, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 271 (November 18, 1997).
54 Ibid., sec. 155.
55 Ibid., sec. 161.
56 Janina Dill, “Towards a Moral Division of Labour between IHL and IHRL during the Conduct of Hostilities,” in Ziv Bohrer, Janina Dill, and Helen Duffy, eds., Law Applicable to Armed Conflict (Cambridge, U.K.: Cambridge University Press, 2020), pp. 197–265.
57 Ibid., pp. 260–61.
58 Ibid., pp. 261–63.
59 Duško Tadić; and International Law Association, Final Report on the Meaning of Armed Conflict in International Law.
60 Françoise Hampson, “The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Treaty Body,” International Review of the Red Cross 90, no. 871 (September 2008), pp. 549–72, at p. 556.
61 Thus, contrary to the court's holding in para. 107 of Hassan, ECtHR No. 29750/09, a state should not be required to plead that an armed conflict subject to IHL exists for the court to find that this is the case.
62 See Finogenov et al. v. Russia, European Court of Human Rights Judgment, App. Nos. 18299/03 and 27311/03 (December 20, 2011), hudoc.echr.coe.int/tkp197/view.asp#{%22itemid%22:[%22001-108231%22]}. The Russian hostage operation occurred within the context of the broader hostilities with Chechen rebels. It may be that such discrete operations under certain conditions are amenable to reasonable application of HRL even if a court characterizes the larger hostilities as an armed conflict.
63 Marko Milanovic, “Jurisdiction and Responsibility: Trends in the Jurisprudence of the Strasbourg Court,” in Anne van Aaken and Iulia Motoc, eds., The European Convention on Human Rights and General International Law (New York: Oxford University Press, 2018), pp. 97–110.
64 Ukraine and the Netherlands v. Russia, European Court of Human Rights, [Grand Chamber] App. Nos. 43800/14, 8019/16 and 28525/20, Decision (November 30, 2022), hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-222889%22]}.
65 Georgia v. Russia (II) (just satisfaction) European Court of Human Rights, [Grand Chamber] App. No. 38263/08, Judgment (April 28, 2021), hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-207757%22]}.
66 Badalyan v. Azerbaijan, App. No. 51295/11,European Court of Human Rights, Judgment (July 22, 2021).
67 Yuval Shany, “Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law,” Law & Ethics of Human Rights 7, no. 1 (2013), pp. 47–71, at p. 69.
68 Milanovic, Extraterritorial Application of Human Rights Treaties, p. 221.
69 Mitt Regan, “From Protecting Lives to Protecting States: Use of Force across the Threat Continuum,” Journal of National Security Law & Policy 10, no. 1 (February 2019), pp. 171–236.