Is Human Rights Law of Any Relevance to Military Operations in Afghanistan?

• Author: Francoise J. Hampson
• Position: Professor, Department of Law & Human Rights Centre, University of Essex, UK
• Pages: 485-524

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Is Human Rights Law of Any Relevance to

Military Operations in Afghanistan?

Fran^oise J. Hampson*

/. Introduction

Newspaper reports in Western Europe and the publications of reputable hu-

man rights groups, such as Human Rights Watch and Amnesty Interna-

tional, give the impression that innocent villagers are being indiscriminately killed

by coalition forces in Afghanistan. 1News reports also suggest that Afghans com-

plain of the lack of physical security and of very slow progress in the development

of physical and social infrastructure. The issue is not, in this context, whether such

claims are well founded. The perception of the Afghans and of the human rights

groups is that civilians are being killed unnecessarily and, by implication, unlaw-

fully. The forces involved claim to be showing the most rigorous adherence to the

requirements of the law of armed conflict. 2Part of the explanation for the gap in

perceptions may be that the Afghans and the human rights groups are thinking in

terms of respect for human rights law, in the context of alaw and order paradigm,

whereas the military forces are thinking exclusively in terms of the law of armed

conflict. This raises the question of the relevance of human rights law to the con-

duct of military operations in Afghanistan, the subject of this article.

Before embarking on an analysis of the principal questions at issue, it is neces-

sary to make anumber ofpreliminary points. The first is that it will be assumed that

two, legally significantly different operations are being conducted in Afghanistan.

*Professor, Department of Law &Human Rights Centre, University of Essex, UK.

Is Human Rights Law ofAny Relevance to Military Operations in Afghanistan?

One is the International Security Assistance Force (ISAF) operation, which has a

Security Council mandate and is there to assist the government of Afghanistan.3It

is said to be dealing with an insurgency, led by the Taliban, and to be governed by

the rules applicable in non-international armed conflict. The second is Operation

Enduring Freedom, which is said to be acontinuation of the conflict which started

in 2001 between an ad hoc coalition, working with the Northern Alliance, and the

Taliban and Al Qaeda forces. This conflict is said to be international in nature. This

characterization ofthe conflict(s) is not without controversy but will not be further

explored here.

The second preliminary point concerns the nature ofhuman rights law. Lawyers

with certain armed forces shy away from anything to do with human rights law

and, by extension, with human rights more generally, perhaps at least in part owing

to fear of the unknown.4They claim that it has nothing to do with them and their

operations, aclaim that, in such broad terms, is patently untrue. This article cannot

hope to provide ageneral introduction to human rights law; for that, readers need

to seek elsewhere.5It is, nevertheless, necessary to highlight certain features of this

body of rules. First, there is adifference between human rights law and human

rights. The former refers to legal obligations of States. The focus will be principally

on treaty law, which is of course subject to ratification. The main emphasis will be

on the international treaties, notably the International Covenant on Civil and Po-

litical Rights, with only occasional reference to the regional treaties. It should not

be forgotten, however, that there are human rights mechanisms that, ultimately,

owe their existence to the UN Charter.6All States are subject to their scrutiny. The

norms, respect for which they monitor, are either part of customary human rights

law or part of Charter law. Human rights more generally refers to values and pre-

cepts that may (or should) be the basis of policy decisions, such as the rule of law,

democracy, participation, transparency and accountability. Human rights in this

sense is part of the "good governance" agenda.

Second, human rights law is civil in character, like any other area ofpublic inter-

national law. States found to have violated human rights law may be required to

amend their law and to make restitution. The failure to investigate an alleged human

rights violation and, where appropriate, to institute domestic criminal proceedings

may be aviolation of human rights law but the enforcement of that body of law at

the regional or international level does not involve criminal proceedings. 7The in-

dividual perpetrator is not the human rights violator. The State which is responsi-

ble for the non-investigation will be held responsible under human rights law. This

points to a significant difference between human rights law and the law of armed

conflict. The former only binds the State. Human rights law is not based on the

bond of citizenship. The rights are said to be inherent in every human being. This

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Fran$oise J. Hampson

means that they do not need to be earned and are not dependent upon good behav-

ior. Human rights law is about the relationship between those who exercise au-

thority and those subjected to its exercise. It applies to anyone subject to the exercise

of such authority or jurisdiction, aconcept that will be examined further below.

Third, human rights law contains both positive and negative obligations. Not

only is there the negative obligation, for example, not to torture. Only State agents

can trigger responsibility for breach ofthe negative obligation. There is also aposi-

tive obligation to protect persons from torture, both at the hands of State agents

and third parties. This is generally satisfied by having aproperly functioning legal

system that penalizes the behavior in question and an effective system of investiga-

tion and prosecution that ensures that wrongdoers are punished.8In some circum-

stances, it may require more than that in the way of protection.9

The fourth element represents asweeping generalization. Provided that caveat

is not forgotten, the claim may still offer useful insights. Human rights law, at least

as enforced by regional human rights courts, is designed principally to be applied

after the event. It provides general principles which enable ajudge to determine in

aprecise set of circumstances whether arule has been violated. It is capable of con-

siderable fine-tuning, particularly with the development over time of fairly consis-

tent case law. What permits such fine-tuning is the use of limitation clauses, which

are an intrinsic part of the elaboration of many rights. For example, there is no ab-

solute right of freedom of expression. Rather, the starting point is that such aright

exists but it can be subject to restrictions imposed by law and based on one or more

generally defined grounds, on condition that the limitation is both necessary and

proportionate. 10 In the case of negative obligations, responsibility often appears to

be based on the result. One exception is responsibility for unlawful killings, where

what the reasonable perpetrator thought would obviously be relevant. In contrast,

the law of armed conflict is designed to provide guidance to armed forces at the

time decisions are made and actions undertaken. The emphasis in criminal pro-

ceedings on what was known at the time should avoid the danger that determina-

tions of responsibility after the event will be based on the twenty-twenty vision of

hindsight. 11 The fine-tuning occurs in the mind of the commander, rather than

that of the judge.

The fifth issue is that the starting point ofhuman rights law is the protected inter-

est or right. Any limitations or exceptions have to be interpreted restrictively. In the

case of the law of armed conflict, the law itself represents abalance. One side of that

balance should not be interpreted restrictively in relation to the other. This is apossi-

ble explanation for the way in which certain human rights groups, on occasion, ap-

pear to interpret the law of armed conflict; they are treating the protection of

civilians, for example, as the starting point and any restrictions as an exception.

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