Can Human Rights Build a Better War?

Abstract

“Humanity's law”—the merger of human rights law and the laws of war—is more ambivalent than first appears. The two regimes speak in one voice with respect to genocide and crimes against humanity, due process and detainee rights, and the prohibition of torture and cruel, inhuman, and degrading treatment. But on the military terrain of “strategy,” and in the conduct of battlefield operations, human rights struggle for recognition. The law of war maintains a near monopoly over the right to life in wartime; even the International Court of Justice refracts the right to life through the prism of international humanitarian law. War law as lingua franca drives the discussion toward military issues related to targeting and restraint and away from broader human rights issues. Human rights rest uneasily with military norms that accept the strategic utility of violence. The comparative advantage of human rights is not necessarily to do a better job of applying the laws of war but to address the broad-based effects of armed conflict and to develop alternatives to war itself. Intermingling human rights and war law may jeopardize the autonomy of the human rights movement, may chip away at the “absoluteness” of humanitarian norms and may enhance the legitimacy of war through its association with rights. As modern militaries appropriate the language of humanitarianism, the challenge for human rights may be to preserve its critical independence in the face of “humane war.”