Preventing the Emasculation of Warfare: Halting the Expansion of Human Rights Law into Armed Conflict

• Author: Major Michelle A. Hansen
• Pages: 04

MILITARY LAW REVIEW

Volume 194 Winter 2007

PREVENTING THE EMASCULATION OF WARFARE: HALTING THE EXPANSION OF HUMAN RIGHTS LAW INTO ARMED CONFLICT

MAJOR MICHELLE A. HANSEN*

The reasons why the United States has maintained its distance from the international human rights agreements are not obvious . . . . [T]here is resistance to accepting international standards, and international scrutiny, on matters that have been for the United States to decide.1

I. Introduction

The United States ratified the International Covenant on Civil and Political Rights (ICCPR)2 fifteen years after President Jimmy Carter

signed it, and twenty-six years after the United Nations General Assembly unanimously adopted it.3 The reluctance to join the ICCPR was partly rooted in fears that costs to U.S. sovereignty would be too high.4 When eventually ratifying the ICCPR in 1992, the United States entered several reservations, declarations, and understandings to ensure that its obligations under the ICCPR would not conflict with U.S. domestic law.5 Fears that ratifying the ICCPR would threaten American institutions and practices at home were never realized.6 However, a growing trend toward expanding the reach of international human rights law (human rights law) into armed conflict endangers U.S. sovereignty in a way that few could have envisioned. The United States needs to object to this expansion and take the lead in influencing the international community to join in preserving the importance of state sovereignty and consent in international humanitarian law (humanitarian law).

Humanitarian law has been the primary regulator of armed conflict for U.S. Soldiers since the American Civil War,7 when President Abraham Lincoln issued the Instructions for the Government of Armies of the United States in the Field, commonly referred to as the Lieber Code.8 Humanitarian law, which is often called the law of armed

conflict,9 delineates the obligations of states toward one another as contracting parties, and often these obligations afford protections to the victims of armed conflict.10 It is based upon the "direct imposition of obligations on the individual," rather than "the granting of rights to the individual."11

Conversely, human rights law historically has governed the relationship of a state and its own citizens.12 It is premised upon the notion that citizens hold individual rights, which often may be enforced against the state.13

The reasons proponents espouse for expanding human rights law into armed conflict are varied. Although humanitarian law has effectively balanced the demands of military necessity against the desire to minimize human suffering in past armed conflicts,14 some advocate the increasing applicability of human rights law in war to further reduce

human suffering and protect human dignity.15 Theodore Meron, Chief Judge of the International Tribunal for the Former Yugoslavia, refers to the developments in humanitarian law that are driven by human rights and principles of humanity as the "humanization of humanitarian law."16

Undoubtedly, the reduction of human suffering in all contexts is a laudable goal. However, moderating warfare through the application of the human rights regime, if not filtered through the lens of humanitarian law and tempered by reference to the realities of modern armed conflict, will result in the eventual "emasculation of warfare."17 That is, it will unnecessarily restrict warfighters to a point never envisioned by those who framed and ratified the major instruments designed to regulate warfare. It could make winning wars nearly unachievable for those who try to comply with its strict requirements, and "'[e]xcessive' humanization might exceed the limits acceptable to armed forces, provoke their resistance, and thus erode the credibility of the rules."18

Furthermore, humanization also could serve to unnecessarily prolong armed conflict, and thereby increase the evils of war that it purports to eradicate.19 Therefore, the unconstrained expansion of human rights law into matters of war must be stopped, for the sake of Soldiers and humanity alike.

Part II of this article provides general information regarding the frameworks of human rights law and humanitarian law. Both are highly developed bodies of public international law, consisting of international agreements and customary international law, the latter of which is born of the consent and consistent practice of states. Traditionally, the two were viewed as distinct legal regimes; human rights law applied during peacetime, and humanitarian law applied during armed conflict.20 An emerging approach views human rights law as applying at all times, with humanitarian law acting as the lex specialis, or specific law, during periods of armed conflict.21 Lex specialis is a principle of interpretation in international law that "suggests that whenever two or more norms deal with the same subject matter, priority should be given to the norm that is more specific."22 A more radical view urges that human rights law should displace humanitarian law as the preferred method of regulating the battlefield.23

It is undeniable that parallels exist between human rights law and humanitarian law. For example, some provisions of the Geneva Conventions of 194924 (Geneva Conventions), and their Additional

Protocols25 contain protections that are also contained in human rights instruments or recognized as fundamental human rights.26 Despite the commonalities, Part III argues that the normative frameworks of human rights law and humanitarian law should remain distinct based upon two foundational arguments. First, state sovereignty and consent are paramount in the formation of international law. With few exceptions, states are bound by international law only to they extent that they agree to be bound.27 Therefore, if states have not agreed to apply human rights law during armed conflict, either through treaty formation or the development of customary law, there should be no room to debate whether such expansion is appropriate.

The second argument for distinct regimes is the underlying theory of human rights law as a rights-based system and humanitarian law as an obligations-based system.28 The dissimilar structures of both frameworks make them incompatible for simple merger.29 To apply human rights law in armed conflict consistent with the structural constraints of humanitarian law, states have two choices. States could agree to incorporate human rights law into existing humanitarian law by converting individual rights afforded by human rights law into direct obligations imposed upon states and those fighting their wars.30

Alternatively, states could displace humanitarian law with a human rights regime.31 The first approach is preferable in that it preserves the framework of humanitarian law, along with its ability to consider military necessity as a relevant factor in determining the obligations of states and Soldiers to protect individuals during times of war.32

Part IV demonstrates that, despite strong arguments against applying human rights law in armed conflict, such expansion has already begun. Opinions of the International Court of Justice (ICJ) and decisions of human rights tribunals have held that human rights law applies during armed conflict, and in some cases, that the obligations of states assumed under human rights instruments apply extraterritorially during armed conflict and occupation.33

Part V relates the dangers posed by expanding the application of human rights law in armed conflict. Regulating armed conflict through a human rights regime will tend to grant more protections to the victims of war. Warfighters will bear the costs of these increased protections as additional constraints on how they accomplish the mission and as increased risks to their lives.

Key areas of conflict between human rights law and humanitarian law include the use of force, detention of enemy prisoners of war and internment of civilians, security restrictions imposed on civilian populations, and occupation.34 If this trend toward expansion continues unchecked, military commanders and Soldiers will face an exceedingly complex set of rules for conducting military operations. This overregulation of the battlefield may prolong conflict rather than facilitate a quick end to wars.

Part VI argues that the expansion of human rights law into armed conflict must be halted. The United States should actively recruit its allies to join in preventing such expansion from ever developing into customary law. Simultaneously, it must become a "persistent objector" to preclude becoming bound to apply human rights norms in armed conflict, should those norms eventually develop into customary law. Furthermore, the United States needs to vigorously pursue the issue of expansion with the Human Rights Committee, the monitoring body of the ICCPR, and capitalize on the authority of the U.N. Security Council to direct in its resolutions that humanitarian law alone regulates armed conflicts and occupations.

II. Background

Human rights law and humanitarian law developed distinctly, each having different core goals and philosophies.35 Human rights law traditionally sought to grant positive rights to individuals and to ensure that a state respected the rights of its own people, whereas humanitarian law historically endeavored to form compacts between states regarding the permissible justifications for waging war and the delineation of acceptable methods and means for conducting it.36 While the issue of the overlap or interplay of the two diverging regimes has generated moderate interest in the past, it has been thrust into the spotlight with the advent of the war on terrorism and the armed conflict and occupation in Iraq.37

A. International Human Rights Law

Human rights law developed from custom and flourished after World War II, largely in response to the atrocities inflicted upon populations prior to and...