The Dark Sides of Convergence: A Pro-civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict

• Author: Naz K. Modirzadeh
• Position: Senior Associate and Head of Policy, Harvard Program on Humanitarian Policy and Conflict Research (HPCR)
• Pages: 349-410

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The Dark Sides of Convergence:

APro-civilian Critique of the Extraterritorial

Application of Human Rights Law in

Armed Conflict

Naz K. Modirzadeh*

Introduction

International human rights academics and activists rarely have agreat deal to

celebrate. Compared to their colleagues in private international law or domes-

tic law, they are faced with creating aconvincing account of "real" law. They often

work on the most horrifying atrocities committed against individuals around the

world, struggling to draw the world's and the international community's attention

to the plight of subjugated and silenced masses. Like their colleagues who work in

the field of international humanitarian law (IHL, or law of armed conflict), they

focus on history's darkest moments, when humanity seems lost or forgotten.

Yet, in the last decade, human rights scholars and advocates working at the cut-

ting edges of academia and litigation have led atremendous amount of innovation

in the literature and in courtrooms and UN committees around the world. They

have managed to transform along-accepted truism of international law, and to

*Senior Associate and Head of Policy, Harvard Program on Humanitarian Policy and Conflict

Research (HPCR). The opinions expressed in this article do not represent HPCR, and all errors

are those of the author.

The Dark Sides ofConvergence

challenge States and their militaries to fundamentally reconsider the nature and

scope of their obligations on the battlefield.

Indeed, the idea ofco-application of international humanitarian law1and human

rights law has drawn atremendous amount of academic attention and ahuge

amount of innovation in international and domestic jurisprudence. This transfor-

mation, this much-touted shift in the field of international law, is often referred to

as the "humanization of humanitarian law"2and, more technically, the "conver-

gence"3of international human rights law (IHRL) and international humanitarian

law. Yet in the current headlong approach into convergence, rights and rights insti-

tutions may carry risks to the very goals many humanitarian-minded international

lawyers seek to achieve.

The current debates around the applicability of human rights during conflict, the

extraterritorial applicability of human rights and the post facto enforcement of

human rights claims against military personnel engaged in armed combat appear

to avoid the central question ofwhether adding human rights to the legal terrain of

war is good—good for civilians, good for the longevity of legal constraints on con-

duct during conflict and good for the promotion of human rights. Underlying the

huge number of scholarly papers on the issue of parallel application of IHRL and

IHL,4as well as the increasingly pro-convergence jurisprudence of key interna-

tional courts, is an assumption that more human rights (in aformal sense) always

equal more enjoyment of basic rights. To the extent that amajor scholarly project

seems to be intent on demonstrating that human rights law was always meant to

apply during armed conflict and that the main challenge before us is the specific

and detailed enforcement of discrete rules of IHRL, we need an honest assessment

of what we want human rights law to do for us and how the pragmatic and tactical

deployment of human rights arguments will affect the overall fate of rights dis-

course in war.

The goal of this article is not to delve into the legal complexities of various

courts' interpretations of the details of the application of human rights law in war,

but rather to take abird's-eye view of the debate and to question whether it is a

good thing to insist on the extraterritorial applicability of human rights to armed

conflict situations. The tone ofthe many articles and commentaries on the topic of

"convergence" suggests that ifonly the views of various UN treaty bodies and forward-

thinking courts were applied fully by the military, it is obvious that the experience

of civilians caught up in armed conflict would be improved, that detention would

be more humane, that accountability for violations would be increased—that, in

short, outcomes would be more humanitarian. Iaim to question that assumption,

and to raise questions about whether even the full realization of the aspirations of

human rights scholars and advocates would actually be better for civilians in war.

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Naz K. Modirzadeh

The real desired impact of insisting on the co-application of human rights law

with IHL is far more limited than afrank reading ofmost ofthis scholarship would

suggest. Indeed, it seems that rather than transforming the very legal framework

within which armed conflict occurs the main upshot ofpromoting parallel applica-

tion is to increase the available legal forums and accountability measures to which

States can be subject after alleged violations occur. This article questions whether

promotion of full parallel application, with the intent of only changing the

framework ofpost facto accountability, actually harms the capacity for law to protect

civilians in war. This paper argues that the formalist machinations currently em-

ployed to argue that violations ofIHL should come within the jurisdictional ambit

ofhuman rights instruments and courts may be harmful to the very aims liberal in-

ternational lawyers seek to achieve. My argument is that parallel application is

equally as bad for the Iraqi civilian as it is for the American soldier. As we pull back

the layers of legalistic argumentation, the real role of rights discourse and the real

function of human rights law on the battlefield seem much less thought-out than

leading scholars suggest, and the implications for this new approach to international

law seem much more problematic than the current debate on the issue presents.

For the civilian and the soldier, the vague overlap ofthese two bodies oflaw is at

best incoherent, and at worst raises expectations that cannot be met. The civilian in

Basra during the occupation would be told that he might have some human rights

claims against the British (in the event that they have acertain kind of control over

him), no human rights claims against US forces (because they refuse to recognize

the applicability ofthe law), full human rights claims vis-a-vis the Iraqi transitional

government (depending on what stage of the Iraqi transitional government we

would be looking at, and depending on the interpretation of what it would mean

for human rights obligations to continue to apply to Iraq even after the invasion

toppled its pre-existing government), and moderate human rights claims vis-a-vis

any European States party to the European Convention on Human Rights that

would happen to have any control over an individual Iraqi in the south. Contrary

to IHL, where the civilian (or prisoner ofwar or enemy combatant) is not arights-

holder but aperson to whom obligations are owed by aparty to the conflict (and

therefore where we would look to the behavior of the party to the conflict in order

to determine whether there has been aviolation of the rules), IHRL raises the ex-

pectation that there is aclear duty-bearer who is capable ofresponding to the rights

claim held by any individual on agiven territory.

From the perspective of the commander seeking to provide regulations to the

soldier based on the Stated relevant obligations under international law, rules of

warfare and doctrine on the battlefield must be whittled down to clear and brief

rules of engagement. While senior commanders, military policymakers and

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