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CHAPTER 1

Human Rights and the Norms of Modern Warfare

What has changed above all since the wars of earlier centuries is our growing consciousness of what it means to be human.

—Mary Kaldor (2009)

Waging war is no excuse for ignoring human rights.

—Kenneth Roth (Human Rights Watch 2004a)

The laws and customs of war have changed markedly over the centuries. The traditional focus on interstate wars has broadened to include civil wars, insurgencies, and other armed conflicts. Some criteria have faded (just intention, formal declarations of war), while others (discrimination, proportionality) have taken their place. In the 1970s, the whole body of law concerning the conduct of war was rechristened “international humanitarian law,” or IHL. Humanitarian law continues to evolve. This shouldn’t be surprising. The character of war has changed—and continues to change—in ways that demand more attention to the protection of individuals caught in its path.

Unfortunately, the law of war hasn’t changed nearly enough. Its focus is too narrow. It demands that we ask whether belligerents are justified in entering a war, and, if so, how they should comport themselves during the war’s execution. These questions are critical to any legal or moral evaluation of war. However, it is not my aim to address these, at least not directly. I propose instead that we focus much more on the earth-shattering ways war affects those directly impacted by it: soldiers, but especially civilians. It’s not as if IHL doesn’t calculate the effects of war on civilians. It does. However, it does so largely from the perspective of the state’s actions, not from the perspective of those who are terrorized or killed or have their lives thrown into disarray by war. As the Hague Conventions put it, the goal is “to diminish the evils of war so far as military requirements permit.”¹ The law was designed as a process of weighing and judging humanity in light of military necessity. It demands “no unnecessary damage, not one more civilian than necessary” (Kennedy 2006b:90). This approach diminishes and demeans those individuals whose lives are destroyed or disrupted by war.

We have at hand the conceptual and moral tool to give civilians their due: the notion of human rights. The suggestion that human rights apply in war isn’t entirely new, of course. International lawyers routinely say that rights apply alongside or in addition to the laws of war. Geoffrey Best (1980), Theodor Meron (2006), Ruti Teitel (2011), and others have described the growing influence of human rights on the substance and style of humanitarian law. War crimes courts and tribunals routinely leaven humanitarian law with human rights ideas and norms. Human rights agencies and advocates enthusiastically take up the cause of rights in war zones. But we have yet to see a systematic account of human rights as an independent body of war norms. This book sets out to make that case. I don’t suggest that human rights should sweep aside humanitarian law altogether. But I do think a rights framework conveys the impact of war on innocent and vulnerable people more vividly than humanitarian law does. This vantage, I hope to show, is crucial as we assess the justification and conduct of modern wars.

Rights have purchase on a wide range of armed violence committed by state militaries as well as non-state rebels, militias, and terrorists. Soldiers wield raw power over civilians and other soldiers, and the potential for abuse is frightful. The more wars depart from the classical assumptions of humanitarian law, the more relevant rights become. Adherence to IHL is envisioned largely in terms of reciprocity, or the mutually assured compliance of belligerents of roughly equal capabilities. Rights, by contrast, are designed exactly for conditions of unequal power. Compliance derives from public shaming and civil society campaigns; monitoring, exposure, and sanctions by national governments and international organizations; and the threat of national or international prosecutions.

A human rights model doesn’t simply enjoin combatants to observe the rights of noncombatants. Rights also anchor humanitarian expectations and strengthen the status of civilians. A framework of dignity and sympathy turns our attention from high politics and strategy to the individual experience of war. Rights bore into details of everyday life, helping us to see—really see—civilians. This is no small feat when death and destruction are euphemized into “collateral damage” to “civilian objects,” or are reduced to “gains” and “losses” on the strategist’s ledger (see Rothbart et al. 2012). Rights claims also reverse the traditional order of agency in war. Unlike chivalry or just war, the idea of rights doesn’t hinge on the beneficence or mercy of the sovereign; civilians aren’t simply spared by belligerents or rescued by international peacekeepers. Rights become a vehicle for individual agency and identity, as those who bear the brunt of war adapt human rights ideas to local conditions and carry out their own documentation, monitoring, and public reporting.

The specificity of human rights lends a bracing realism to our grasp of war. While humanitarian law provides a list of principles to guide decision making (discrimination, proportionality), human rights provide a list of ends to be attained (right to life, free speech, free movement) (see Koller 2005:245). Rights increasingly give form and definition to general concepts in IHL. Humanitarian law prohibits torture, for example, but doesn’t define it. For that, we turn to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1985). The specificity and concreteness of rights makes them harder to evade than general humanitarian injunctions, and requires the warring parties to explain why particular rights should be overridden in particular cases. These same details propel the narratives and images that have become the stock in trade of human rights advocacy.²

Two caveats are in order. First, I don’t claim that the full suite of rights can be achieved in the midst of armed conflict all or even most of the time. Human rights treaties allow signatories to opt out of certain provisions in time of war or other national emergency. But there is far more room for rights than conventional wisdom suggests. Many legal scholars say we can’t rely on human rights because war is “far too complex and brutal a phenomenon to be capable of being constrained by rules designed for peacetime” (Christopher Greenwood, quoted in Quénivet 2008:11). This strikes me as too sweeping. War is many things, some of which clearly can and should be constrained by rules designed for peace. Sometimes war isn’t even war: governments often try to skirt human rights duties and tap into more permissive laws of war by claiming they’re fighting for their survival. The “war on terror” or the “long war,” for example, would turn the state of exception into the norm. Modern militaries are more vulnerable to human rights scrutiny than we might think. Human rights abuses can exact a heavy price in terms of public support, institutional reputation, and the legitimacy—and success—of the mission. Concern for rights increasingly colors the strategic and tactical choices that states make. Scores of non-state armed forces have also signed human rights “deeds of commitment” as a way to burnish their humanitarian bona fides.³

Second, the categorical nature of human rights makes them resistant to trade-offs with other goods, but not too resistant (Griffin 2008:37). Rights are rarely absolute. Indeed, taking rights seriously means weighing the human rights costs and benefits of an act—even if that act happens to be war or occupation or a drone-based missile strike. The fact that an army is fighting a defensive war, or a war of liberation or self-determination, carries moral weight as well. Human rights and war are often associated with humanitarian intervention or the responsibility to protect, or “R2P” as it’s colloquially called. Most human rights advocates recognize that sometimes it will be necessary to sacrifice lesser rights in the quest for greater rights. But it’s hard to brook humanitarian warriors who systematically trample human rights on the way to victory. I address these dilemmas in detail in Chapter 6. For now, suffice it to say that specific rights claims weigh heavily in this calculus, emphasizing humanitarian concerns in the planning and execution of specific military operations as well as the overall aims of war.

Human Rights as War Norms

Human rights rest on the idea that people should be treated as ends and not as means. Immanuel Kant argued that this was a categorical imperative for us to act as though we were legislators in the “universal kingdom of ends” (Reiss 1996:19). That moral idea has been transformed into modern legal and political obligations. Today we think of rights as legitimate claims or entitlements to certain standards of treatment, usually on the part of governments. These tend to be regarded as important and weighty claims not easily dismissed or traded away. Maurice Cranston (1967:51–52) described them as matters of “paramount importance” responding to “a grave affront to justice.” Many people view human rights claims as “political trumps” that take precedence over other claims, some say over all other claims (Dworkin 1978:xi).

Scholars still debate where rights come from and why we should observe them. Rights are endowed by a Creator or reflect a vision of human dignity that is “ineliminably religious” (Perry 1998:11); or they are droits de l’homme, seized on the barricades and avowedly of this world. Natural rights theorists say rights are pre-political or pre-institutional claims that are given in nature; legal positivists say rights are no more or less than “claim[s] as recognized by law and maintained by governmental action” (Martin 1980:396, and see Hart 1955). Rights are universal norms that exist by virtue of our humanity; or they are Western cultural mores imposed on everyone else. Advocates of “thin” human rights emphasize classic rights of life, liberty, and security. Proponents of “thick” human rights count economic, social, and cultural claims within the compass of rights.

The idea of rights has nevertheless proved remarkably resilient. “Yes, we agree about the rights, but on condition that no one asks us why,” said the Catholic social theorist Jacques Maritain, who labored alongside his secular counterparts to draft the Universal Declaration of Human Rights (1948) (Joshua Cohen 2004:193–94). A similar pragmatism underpins the practice of rights. As Charles Beitz notes, the idea of human rights shapes much of the normative discourse of world politics today. Rights have developed a “doctrinal and institutional complexity” that “commands the energy and commitment of large numbers of people and organizations.” While the scope and content of human rights aren’t fixed, they are widely accepted as a “distinctive class of norms as reasons … for an array of modes of action” (Beitz 2009:9–10). This isn’t the El Dorado of universal right, but it’s a compelling norm nonetheless. As the Argentine philosopher Eduardo Rabossi put it, human rights are an undisputed “fact of the world” (quoted in Rorty 1993:134). That fact is not lost on would-be offenders. As Jeremy Waldron notes (1987:155), “there is now scarcely a nation on earth which is not sensitive to or embarrassed by the charge that it is guilty of rights-violation.”

The strength of right stems from its connection to duty. Right implies duty: the negative duty to forbear (to refrain from arbitrary detention or torture, for example), as well as the positive duty to act (to provide social security or health care, for example). In either case, rights demand to be satisfied, not just intended. If a well-meaning city housing official fails to secure fair housing for me, I still have the right—and he or she the obligation—to see that I get it. It is this moral and psychological purchase that rights have on other people that is so empowering. As Hugo Slim notes (2008:283), “feeling that one has a right to something is a much more powerful feeling than simply feeling that one needs or wants something. It automatically implies that someone has a duty to give it to you and politicizes this relationship immediately and irrevocably.”

As politics, human rights provide an organizing idea, a moral language, and a legal strategy. An army of activists help to press the case: human rights must be one of the most networked, NGO’d ideas in history. Thomas Risse and Kathryn Sikkink (1999:18) describe human rights as a model global social movement, “bound together by shared values, a common discourse, and dense exchanges of information and services.” Hundreds if not thousands of national and transnational human rights organizations, as well as national, state, and local government agencies, document abuses, frame debates, set standards and agendas, lead educational and lobbying campaigns, shame abusers, cajole policymakers, push reforms, offer solutions, and monitor implementation (Keck and Sikkink 1998:201).

Practitioners have converged on substantive as well as practical norms. NGOs have developed protocols and handbooks that cover everything from prison visits, to refugee relief, to the treatment of indigenous peoples, to helping physicians recognize the marks of torture on the human body. The Council of Europe has published a series of citizen’s handbooks that cover each of the major subject areas of the European Convention on Human Rights. International conferences, degree and certificate programs, wikis and listservs, and professional societies, as well as an academic publication—Journal of Human Rights Practice—buttress an elaborate global practice. With some allowance for cultural differences, human rights practitioners use roughly the same vernacular and methods in Krakow as they do in Dhaka.

Rights have always been on the march. The movement was invented out of revolutionary ideas and social movements, and continues to foment what Human Rights Watch (HRW) (2000) calls “an evolution in public morality.” There is no a priori boundary that rights cannot cross (Meron 1995:80–81). Jack Donnelly (2003:61) argues that rights should address the “principal systematic public threats to human dignity in the contemporary world,” whatever realm of life they happen to fall in. Still, major NGOs tend to choose their battles pragmatically. Human Rights Watch, for example, sets its priorities based on “the severity of the crimes being committed, the numbers of those affected, and our potential to have impact” (Human Rights Watch n.d.). Rights advocates and agencies certainly have agendas (and sometimes bureaucratic pathologies), and some issues catch fire while others die out (Tomaskovic-Devey et al. n.d.). But rights groups usually pivot to confront new crises. In her study of Amnesty International, Ann Marie Clark (2001:16) found that the “principled norms” of human rights groups are rooted in fact finding and expertise. But the lifeblood of the movement was the ability to “to form new concepts about human rights based on collected facts.”

Addressing war is a particularly pragmatic turn. Traditionally, rights protected people from their own governments, fending off what John Stuart Mill (1859:53) called “the dungeon and the stake.” But activists have always dreamed of breaching the citadel and bringing to heel the state at its most powerful. War, after all, is the classic force majeure, voiding normal peacetime obligations. On the home front, states invoke war powers to flout individual rights, suspending habeas corpus or censoring news, for example. Threats to rights increase exponentially in war zones. UN Secretary-General Kofi Annan underscored “the intimate connections between systematic and widespread violations of the rights of civilians and breakdowns in international peace and security” (UN Security Council 1999:6). Human Rights Watch observed that “almost without exception, the world’s worst human rights and humanitarian crises take place in combat zones” (Human Rights Watch 2004b:1). The annual “top ten” humanitarian crises compiled by Médecins sans Frontières/Doctors Without Borders (MSF) are almost all war-related.

Françoise Bouchet-Saulnier, legal adviser to MSF, says that civilian protection begins with the recognition “that individuals have rights and that the authorities who exercise power over them have obligations” (quoted in S. Gordon 2010:89). That relationship can’t be short-circuited for the sake of expedience. The nature of contemporary warfare has forced the issue. Former NATO commander Sir Rupert Smith argues (2007:6) that contemporary military engagements take place “in the presence of civilians, against civilians, in defence of civilians.” Managing civilians has become a singular concern for liberal militaries: anticipating and attending to refugees, coordinating relief efforts with humanitarian agencies and NGOs, overseeing public works projects, organizing communities, weaning people away from radicalism, getting society back on its feet. An army’s conduct vis-à-vis civilians has become a litmus test for the legitimacy of its mission.

Traditionally, human rights was the law of peace and IHL the law of war. That dichotomy is fading fast. The blurring of classic human rights violations and war-related breaches has made clear that the traditional separation cannot (and ought not) be sustained. Many rights groups found their calling in the “dirty wars” of the 1970s and 1980s. Amnesty International cut its teeth fighting political murder and disappearance in Central America, repression and killing in the Southern Cone, and torture in Northern Ireland. From their inception, Americas Watch (1981), Africa Watch (1988), and Middle East Watch (1989) dealt with insurgency, civil war, and other armed conflicts. In 1997, HRW amended its mission statement, pledging “to protect people from inhumane conduct in wartime.”

The internecine conflicts of the 1990s thrust rights into the foreground. “New wars”—an imperfect term that encompasses post-Cold War ethnic, religious, and nationalist strife, violent struggles over natural resources, and contemporary insurgencies and other informal conflicts—are every bit orchestrated mass violations of rights as they are organized armed violence (Kaldor 2001). Human rights advocates have never been more animated, pushing war norms far beyond the traditional bounds of humanitarian law (Clapham 2006:288–89). NGOs accustomed to writing polite letters to interior ministers asking them to free their dissidents are now grappling with failed states, civilianized wars, sexual violence, child soldiers, and public health disasters. Global rights groups deploy their own researchers or cultivate local networks to file reports from the killing fields. This vocal defense of civilians complements the more discreet approach of the ICRC, which prefers to intercede with belligerents privately rather than shame them publicly.

Human rights take a catholic view of the effects of armed conflict—the immediate and direct impact of violence as well as the long-term fallout on physical infrastructure, public health, social fabric, economics, environment, and culture. As Karima Bennoune, a former legal advisor to Amnesty International, notes (2004:173), “the human impact of an armed conflict is much larger than a sum of violations of the Geneva Conventions.” Media attention tends to focus on headline atrocities, but the lion’s share of the misery and abuse is submerged in the daily privations of war. Strikingly little collateral damage involves noncombatants caught in the crossfire between combatants. As Hugo Slim pegs it (2008:91), “most people die from war rather than in battle.”

Reliable data are scarce and there is great variation across conflicts, but recent estimates set the ratio of indirect to direct killing of civilians at between 3:1 and 9:1.⁴ Infrastructure crumbles, economies collapse, the flow of goods and services is interrupted, states fail, and societies unravel; people are displaced, deported, and detained; social costs like rising crime, domestic violence, and divorce kick in. Even “low-intensity” conflicts can wreak havoc on civilians and civilian life. One study of war-related deaths in sub-Saharan Africa during the 1980s noted that “the four horsemen of the apocalypse—famine, pestilence, death, and war—ride out together” (Slim 2008:90).

Researchers in the field of health and human rights have increasingly turned their attention to the epidemiology of war (Garfield et al. 2003; Thoms and Ron 2007). Death and disease have long been seen as part of the natural history of war. Thucydides (1881:127–28) described how refugees were swallowed up by famine and plague during the Peloponnesian War. “They perished in wild disorder.… The dead lay as they had died, one upon another, while others hardly alive wallowed in the streets and crawled about every fountain craving for water.” A 1939 medical journal noted that war offered “a splendid opportunity for the devastating virus, the bold bacillus, or the enterprising entamoeba” (Wigham 1939:49). People suffer from unhygienic conditions, polluted water, rapid exposure to multiple pathogens, rape, and sexually transmitted diseases; others endure emotional trauma of fear, pain, separation, and loss; soldiers are poisoned by toxic battlefields or tormented by post-traumatic stress (Smallman-Raynor and Cliff 2004:5). War exacts a double toll, spreading disease while simultaneously disrupting and diverting medical care. When humanitarian aid is available, it is often leveraged in exchange for political or military support (S. Gordon 2010:76). The aftershocks can affect public health and human development for decades (Ghobarah et al. 2002). Again, right implies duty. Growing healthcare capacities have given rise to new obligations to address indirect and long-term effects of war.

Lest the truism that “war” kills civilians absolve commanders or soldiers of their misdeeds, it should be stressed that human rights disasters flow predictably from certain means and modes of war. The Dirty War Index, for example, measures the effects on civilians of particular classes and uses of weapons (Hsiao-Hicks and Spagat 2008). An “armed violence morality index” models the risks associated with the kind and number of arms, the intent of belligerents, and the relative vulnerability of victims (Taback and Coupland 2005). Attacks on “dual-use” infrastructure, such as bridges and roads, electrical grids, or water purification plants, also erode public health and raise mortality rates in ways that can be modeled and measured. The fallout can settle far from the actual fighting. A 1991 Lancet article foretold the aftershocks of the Gulf War: “Bomb now, die later” (Kandela 1991).

Rights is also the thread that runs from jus in bello to jus post bellum, or justice in the wake of war (see, e.g., Bass 2004; Patterson 2012). Brian Orend notes (2000:219) the “overwhelming emptiness” of humanitarian law with regard to the ending of wars. Only the Hague Laws deal with war termination, and some of the provisions concerning trumpeters, buglers, and white flags read like rules at a Boy Scout camp.⁵ The pursuit of human rights in the wake of war is often fraught, but in many ways rights offer more relevant and realistic norms to govern post-conflict truth, justice, reconciliation, and compensation, providing a clear, liberal, blueprint for a new or reconstituted society (Stahn 2007:928). Rights also spell out the residual obligations belligerents hold in the wake of war and occupation. If a just peace is the goal of a just war, human rights help to define what that end state looks like. Here, too, there is greater room for rights than is usually supposed. The conventional wisdom cautions that human rights demands can make conflicts more intractable and peace more elusive because they raise the moral stakes and narrow the room for negotiation (for an overview of the claims see Sriram, Martin-Ortega, and Herman 2009). But recent research shows that “naming and shaming” media coverage appears to lead to shorter wars and a higher incidence of negotiated peace deals (Burgoon et al. 2015).

There is a great deal of interplay between human rights and humanitarian law. Still, the two regimes evolved independently, and these disparate origins are reflected in the letter and spirit of each field. Human rights emerged from the struggle between oppressed or disadvantaged people and their rulers. The laws of war sprang from customary practices of belligerents and, later, the legal conventions concluded between sovereign states. Rights were domestic norms that were then codified in international law; IHL was international from the start (Oberleitner 2015:10). Philosophically, human rights are universal in nature, while IHL leans toward a statist ethic and national security framework. Rights are founded on religious teaching, moral principles of humanism, liberal and socialist political theory, and a burgeoning body of legal doctrine and practice. They are animated by the voices of victims declaring that their rights have been violated and demanding justice. The laws of war are ameliorative rather than absolute, seeking a space for charity and mercy amid the brutal necessities of war. Traditionally, they governed just cause (jus ad bellum) as well as just conduct (jus in bello) through the principles of proportionality, distinction between combatants and noncombatants, and the economy of violence. Human rights, by contrast, set out a list of specific ends to which civilians are entitled. Interpretations and applications of IHL vary widely. The International Committee of the Red Cross stresses its commitment to humanity, while many states follow a more technical legalism that directs the discussion toward operational questions of targeting and proportionality and away from the concrete human suffering wrought by war.

Both regimes observe proportionality, but each weighs the economy of violence on a different scale. Under the laws of war the anticipated harm to civilian life or property must be consonant with the anticipated military advantages. In human rights, violence is allowed only to advance other, greater, rights. Military or operational concerns may enter in, as in the case of humanitarian intervention, but have no currency of their own. Proportionality is a core concept in IHL. It is confidently invoked by belligerents, yet “images of an almost scientific balancing of opposing interests on finely tuned scales of humanitarian justice, masks a much more complex and unclear reality” (Watkin 2005:4). Article 52(2) of Protocol I of the Geneva Conventions states that attacks must be limited strictly to military objectives, defined as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definitive military advantage.” Commanders and soldiers are meant to apply the rule directly, but a number of key questions are unresolved: What relative values are to be assigned to mission goals and civilians and civilian objects? What constitutes excessive force? What defines a military advantage? Are they incommensurate ends in the first place? No “proportionometer” exists to gauge whether or not the principle has been honored (see Fenrick 2001; Holland 2004:47–48). It can be a wobbly, subjective principle, liable to be bent and abused when the stakes seem high enough. This isn’t to suggest that human rights have mastered the art of proportionality. Human rights advocates remain sharply divided over the question of humanitarian intervention, for example, but in general rights offer a steelier norm in the face of military demands.

Which Rights Apply?

Human rights don’t have free range in war. Even core rights are filtered through IHL. Humanitarian law is widely regarded as lex specialis, or “special law,” derived explicitly for the circumstances of armed conflict and designed to be compatible with the pursuit of military ends. These special rules are usually thought to trump the more general rules of human rights. In its 1996 advisory opinion in the Nuclear Weapons case, the International Court of Justice ruled that human rights law “does not cease in times of war” except when the states parties formally derogate from certain limited provisions. But it was up to the law of war to determine what human rights meant in this context. No one could arbitrarily be deprived of the right to life, for instance, but defining what was arbitrary fell, according to the ICJ, to “the applicable lex specialis, namely, the law applicable in armed conflict” (International Court of Justice 1996: para. 25).

Humanitarian law isn’t as special or human rights as general as this approach suggests. When it comes to civilian protections, the laws of war revolve around malleable concepts of discrimination, military advantage, and proportionality. On issues such as detention and torture, adequacy of investigations, fair trials, and criminal punishment, and in internal conflicts generally, it is human rights that arguably serve as lex specialis (see, e.g., Doswald-Beck 2006; Koller 2005; Droege 2008). Granted, the rhetoric of rights tends to soar. If IHL bars belligerents from directly attacking civilians, human rights protect us all from being subsumed by Homer’s “blood-stain’d God of War” (Homer 1866:191). As noted, rights elevate personal dignity and worth over fear and degradation. Respect for individuals offsets the war powers of states, the secrecy and censorship, the coercion of patriotism, and the high cost of dissent. Rights seek to end conflicts justly and rebuild societies rent by violence.⁶

But these general goods are observed by way of specific laws and norms. As James Nickels suggests (2007:7), human rights today are “specific and numerous, not broad and abstract”; they are (apologies to my philosopher friends) “the rights of the lawyers, not the rights of the philosophers.” Most of the civil and political rights listed in the United Nations Universal Declaration of Human Rights (1948) apply in wartime as well as in peacetime:

• freedom from discrimination;

• right to life, liberty and security of the person;

• freedom from slavery or servitude;

• freedom from torture or cruel, inhuman or degrading treatment;

• recognition as a person before the law;

• equality and equal protection before the law;

• right to an effective remedy before a national tribunal;

• right of personhood and equality before the law;

• prohibition of arbitrary arrest, detention or exile;

• right to a fair and public trial;

• presumption of innocence until being proven guilty;

• freedom from interference in family and private life and communications;

• freedom of movement and residence, including the right to abandon one’s own country;

• right to asylum from persecution;

• right to a nationality;

• freedom of thought, conscience, and religion;

• freedom of opinion and expression;

• freedom of peaceable assembly and association, and the freedom not to be compelled to belong to an association;

• right to own property and the right not to be deprived of it arbitrarily.

Many of the social and economic rights elaborated in the Universal Declaration also apply: the right to work, the right to a standard of living adequate for the health and wellbeing of self and family; the right to education; the right to practice and preserve one’s culture. To these sources of wartime rights we can add the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950); the Convention on the Prevention and Punishment of the Crime of Genocide (1951); the Convention Relating to the Status of Refugees (1951), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1985); the International Covenant on Civil and Political Rights (1966); the American Convention on Human Rights (1969); the International Covenant on Economic, Social and Cultural Rights (1976); the Convention on the Elimination of All Forms of Discrimination against Women (1979); the African [Banjul] Charter on Human and Peoples’ Rights (1986); the Convention on the Rights of the Child (1989); and the Rome Statute of the International Criminal Court (2002).

Unless states lawfully suspend, or “derogate” from, their obligations, or the circumstances at issue lie outside the treaty’s competence or jurisdiction, all apply. The list of non-derogable rights, which cannot be skirted for any reason, including raison de guerre, is growing. The extraterritorial reach of human rights conventions is expanding as well (Milanović 2011b). In 2004, the United Nations Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, noted that state signatories to the treaty are required to “respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party.”

The enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained. (UN Human Rights Committee 2004)

Even this language has the ring of the state to it. Effective control of territory echoes the Hague Laws regarding the duties of commanders toward populations living under occupation. The standard has been espoused by virtually every major human rights body. Today, however, obligation is shifting from a spatial model of jurisdiction to a personal model of jurisdiction: effective control over people rather than places. Human rights standards run closest to absolute in sub rosa wars of detention, torture, and targeted killing. Here the perpetrators have the greatest degree of control over the bodies of those being detained, tortured, or killed, and the threat of harm to others is lowest.⁷

The European Court of Human Rights has developed this paradigm in cases concerning detention or torture but also in some instances involving active warfare. Strictly speaking, only the parties to a treaty are bound by its provisions. But basic humanitarian protections increasingly apply to everyone as a matter of customary law. This includes clandestine operatives, intelligence services, non-state armed forces, and private security companies whose representatives never attended a treaty conference or signed or ratified any conventions (Zegveld 2002; Conte 2013). This is a signal normative turn. If duty falls to the formal exercise of power over others, not just to governments with respect to their citizens, then soldiers carry human rights obligations with them wherever they go.

Agencies, Institutions, and Courts

Skeptics will say that trying to leverage human rights in a battle zone is naïve or even reckless. Human rights activists are often accused of overreaching. Critics say that making human rights the in bello standard is worse than futile; that norms will drift into irrelevance if they come unmoored from the grim reality of war (Watkin 2004:24). Some worry that the supposed clarity of IHL will be muddled by the introduction of human rights (Garraway 2010). Or that conflating the two will erode protections in peacetime, as states seek to weaken general human rights provisions to ensure their militaries a free hand in wartime (Matheson 1997). Others contend that human rights and humanitarian law are working fairly well as it is, so each ought to stay in its own corner. René Provost, for example, concludes that each set of laws “displays a peculiar normative richness and resilience likely to be weakened … by oversimplistic or overenthusiastic attempts to recast one in terms of the other.” Provost welcomes some overlap between the regimes, but concludes that “each performs a task for which it is better suited than the other” (Provost 2002:349–50).

Human rights and humanitarian law are not two stone tablets, one we consult in war, the other in peace. The regimes often borrow and trade ideas. Nor are human rights as absolute or otherworldly as critics claim. The movement is hardly pacifist. For every human rights activist calling for an end to war there are two clamoring for armed intervention to protect rights. The responsibility to protect has easily been assimilated to the culture of rights. Virtually all mainline rights groups promote some version of R2P, accepting the possibility that military force can serve humanitarian ends. Human rights choices are not always black and white in any case. Rights advocates sometimes cooperate and compromise with perpetrators of violence, leveraging compliance by appealing to self-interest and welcoming even half-measures if they ease the suffering of innocents.⁸

The growing array of agencies, institutions, and courts that invoke human rights in war tend to be pragmatic as well. The greater the disparity of power and risk between soldiers and civilians, the more these bodies tend to emphasize the human rights of civilians as against the war rights of belligerents. The rule of thumb is that the scope of obligations is relative to the degree of control. As conditions come under greater control, expectations grow from negative rights (freedom from arbitrary killing, freedom from torture, freedom of speech or religion) to positive freedoms (economic well-being, educational or cultural rights) (Cerone 2006:1504–5). Expectations are highest when armed forces exercise “effective control” over people, property, or territory (Turkey in Northern Cyprus, Israel in the West Bank, Britain in Southern Iraq, etc.).

Human rights courts have been judging the conduct of war for half a century. Some of the earliest cases decided by the European Commission of Human Rights (today the European Court of Human Rights, ECtHR) dealt with the British counterinsurgency in Cyprus.⁹ The ECtHR has since adjudicated hundreds of combat and occupation cases, all stemming from “intractable” ethnic, separatist, or insurgent conflicts: Northern Ireland, Cyprus (again), Turkey, Chechnya, Armenia, and Azerbaijan. More than 3,000 petitions arising from the 2008 South Ossetia war have been lodged with the Court, most by ethnic Russians claiming they were abused by Georgian troops. The Court has recently taken up several cases arising from the war in Iraq.

The ECtHR tends to apply human rights law directly to the conduct of war, scarcely mentioning IHL at all. On the right to life, for instance, the Court does not categorically forbid killing in the context of armed conflict; no human rights treaty does that. Rather, no one shall arbitrarily be deprived of the right to life. The Convention holds that killing may result only “from the use of force which is no more than absolutely necessary” (Art. 2(2)). The Court has applied this single standard to clashes between rioters and police officers, small armed attacks (a PKK ambush in Eastern Turkey), major battles (a thousand irregular fighters arrayed against Russian troops in Chechnya), and a counter-terror operation in which plainclothes SAS forces surveilled and then killed three IRA operatives on city streets in Gibraltar (see Abresch 2005:753).

The ECtHR grants member states a wide margin of appreciation in determining the existence of a state of emergency and the appropriateness of derogations. Nonetheless, the Court’s decisions have unsettled some of the basic assumptions of militaries at war. It has set a high threshold for the use of lethal force and has rebuffed many of the necessity and fog-of-war defenses available in IHL. The Court has breathed rigor into the concepts of discrimination and proportionality, and set strict criteria for the conduct of investigations, a point that is critical given that many courts-martial fail (or are never convened) because shoddy or on-the-fly investigations can’t support the prosecution of alleged atrocities. The Court has examined, inter alia, the right to life of soldiers and civilians, the adequacy of operational planning, the definition of military advantage, arbitrary detention, torture and forcible return, admissibility of evidence obtained under torture, the rule of law in low-intensity conflicts, state responses to terrorism, and “rendition,” or transferring a prisoner to another country for interrogation.¹⁰

Some of the most closely watched decisions have involved the Iraq War. In April 2004, British Armed Forces Minister Adam Ingram argued that Iraqi civilians couldn’t petition the ECtHR because they held “no rights” under the Convention (Bowring 2008:74). That defense was quickly dispelled. Not only did human rights apply in war, but they applied when State Parties engaged in war on the territory of non-State Parties.¹¹ The Court ruled that the UK violated the Convention when it transferred detainees from British custody in Basra into the hands of an Iraqi court where they potentially faced the death penalty.¹² Other cases have run the gamut of wartime violence. British troops have been tried for illegally killing Iraqis while on patrol, during a raid, and in a cross-fire incident; illegally detaining an Iraqi-Briton; beating an Iraqi suspect and then forcing him to swim across a river, where he drowned; and torturing a detainee to death.¹³

As noted, the Court has replaced the spatial model of effective control with an individual model of jurisdiction, as the “exercise of physical power and control over the person in question.”¹⁴ This is quintessential human rights language, evoking the torturer looming over the shackled prisoner, or the dissident being snatched off the street and bundled into a van. The judges conceded that applying the Convention within a controlled British military compound in Iraq was “exceptional,” but 40 years of jurisprudence on extraterritoriality and the British Army’s clear control over the detainees placed the military base within the legal space of the Convention. Remarkably, the Court held in the Al-Skeini case that soldiers in Iraq could also be bound by the Convention when they ventured outside the compound walls as they conducted “patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations.” Even in kinetic military operations (e.g., a gunfight during a patrol), the “United Kingdom, through its soldiers engaged in security operations … exercised authority and control over individuals killed in the course of such security operations.”¹⁵

The regime that has grown up around the American Convention on Human Rights (1978) has examined the protection of human rights in states of emergency, armed invasions, civil strife, civil wars, state terrorism, and military demobilizations. The Inter-American Commission on Human Rights has ruled that human rights and humanitarian law “share a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity.”¹⁶ Calling the provisions of Common Article 3 of the 1949 Geneva Conventions “pure human rights law,” the Commission has directly applied IHL, even weighing in on specific violations of the Geneva Conventions.¹⁷ As for the duty to prevent and protect, the Americans are a step ahead of the Europeans. In a series of cases arising from the protracted civil war in Colombia, the Inter-American Court imposed “special obligations” on the government in Bogotá to safeguard vulnerable groups from anti-government insurgents as well as pro-government paramilitaries (Burgorgue-Larsen and Úbeda de Torres 2011:156).

Grievants in the regional courts sue governments, and only governments. This has prompted jurists to look up the chain of command to rules of engagement and other policy decisions taken at the seat of power (T. Smith 2010:33–34). Other courts have embraced individual criminal responsibility. The ad hoc tribunals such as the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR); hybrid courts like the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC); as well as domestic ad hocs such as the Iraqi High Criminal Court, enforce a mix of international human rights and war crimes conventions and customs as well as domestic statutes. The International Criminal Court (ICC) is fundamentally a human rights court. The Rome Treaty applies whether violations are committed in international or domestic conflicts, during humanitarian or non-humanitarian missions, or even during peacetime; no nexus with war is required. These courts have internalized much of the language and many of the assumptions of rights. One of the judges on the Iraqi High Criminal Court noted that the court’s rulings on war crimes were every bit pronouncements on human rights principles (Global Justice Center 2008:2).

Protecting civilians has emerged as a defining goal at the United Nations as well. Up until the 1960s the UN stuck to the Charter principle of non-interference in the internal affairs of states. In the wake of the 1967 Six-Day War, the UN General Assembly (1967) resolved that “essential and inalienable human rights should be respected even during the vicissitudes of war.” The 1968 Teheran Conference on Human Rights decried the failure of the Hague and Geneva Laws to deter or prevent war, declaring that “peace is the underlying condition for the full observance of human rights and war is their negation” (Human Rights in Armed Conflict 1968). The Teheran Proclamation (1968) noted that “Massive denials of human rights, arising out of aggression or any armed conflict with their tragic consequences, and resulting in untold human misery, engender reactions which could engulf the world in ever growing hostilities. It is the obligation of the international community to co-operate in eradicating such scourges.” In September 1970 the Secretary General concluded that human rights instruments “may prove of value in regard to periods of armed conflict,” thus anticipating the reporting practices of the Human Rights Committee. That December the General Assembly affirmed that “Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict” (Droege 2008:505).

During the 1970s “human rights in armed conflicts” became “one of the most popular phrases in the United Nations political vocabulary” (Suter 1976:394). Reflecting general humanitarian sentiment but not the details of rights, the idea helped to rally diplomatic support for the 1977 Additional Protocols. In the 1980s human rights protections were wedded to the expanding peacekeeping efforts. The Declaration of Turku (1990), a private initiative geared toward “situations of internal violence, disturbances, tensions and public emergency” was integrated into UN rhetoric and sometimes practice.¹⁸ The Declaration saw human rights and humanitarian law as the warp and woof of norms designed to “protect the rights of groups, minorities and peoples, including their dignity and identity” (Declaration of Minimum Humanitarian Standards 1995; Droege 2008:7). More recently, “human security” (as opposed to national security) has been the coin of the realm. Since 2000, the UN has adopted more than 300 resolutions upholding human rights in the midst of armed conflict, and UN agencies continue to affirm the salience of human rights laws to the conduct of war and occupation (Doswald-Beck 2013:140).

While the UN has instituted some enforcement mechanisms, it generally has proceeded cautiously, elaborating IHL rather than supplanting it with new human rights laws.¹⁹ States still dominate the process. Several UN human rights treaties allow individuals to lodge complaints against states, though only if the target state recognizes the competence of the UN to receive individual complaints. The UN is often slow to recognize and respond to crises. The Security Council did not adopt a thematic resolution on civilian protections until 1999, at the end of a decade marked by ethnic cleansing and genocide. Since then, Secretaries-General Kofi Annan and Ban Ki-moon both have criticized the UN failure to adapt to the changing character of war, though the issue remains shackled to the broader question of humanitarian intervention and the protection of civilians, or “PoC.” Even as the UN extols the civilian idea, its own humanitarian aid missions often “struggle over what it means for a peacekeeping operation to protect civilians, in definition and in practice” (Roberts 2009:47).

The trajectory is similar at the Human Rights Commission, the principal forum for UN human rights diplomacy. The Commission was established in 1946 and reconstituted as the Human Rights Council in 2006. For years, the Commission saw and heard no evil. Out of deference to member states it failed to condemn genocide in Cambodia, mass murder in Uganda, and state terror in the Central African Republic. Sotto voce criticism of the Tiananmen Square massacre and Sudan’s genocidal murders brought the Commission no honor either. But in other cases the Commission/Council has deputized a stream of special rapporteurs, experts, and others to investigate human rights abuses in war. Rapporteurs have been barred entry, deported, harassed, and denounced. They’ve also made a difference, spotlighting specific allegations as well as general themes: distinction and proportionality, targeted killing, drones, airstrikes, blockades, mercy killings, cluster bombs, perfidy, human shields, urban counterinsurgency, and reparations (Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions 2010; Alston, Morgan-Foster, and Abresch 2008). The Council is still dogged by controversy, most recently over the Goldstone report on the Gaza war and, to a lesser extent, the Alston report on drone warfare. But overall its calendar looks like Max Weber’s slow boring of hard boards: seeking to curb the use of child soldiers, diminish sexual violence during armed conflict, rein in abuses by mercenaries, stop summary executions, end forced displacement of populations, strengthen national human rights institutions, and develop a body of law to bind private military and security companies to protect human rights.²⁰

Constituting Civilians

Human rights norms don’t merely shore up noncombatant immunity against military necessity. They also constitute civilians around extramilitary human rights norms, establishing the identity and status of civilians within a rights framework. The Oxford English Dictionary defines constitutive principles as those “having the power of constituting, establishing, or giving formal, definite, or organized existence to something.” Human rights norms, like all norms, establish what Ward Thomas (2001:17) calls “matrices of meaning” that help us make sense of the world. “Hard” laws and institutions as well as “soft” social ideas and practices fix boundaries and set expectations. People who were exposed to violence are now protected. Acts once considered unremarkable are set firmly beyond the pale.

The idea that civilians should be protected in wartime is, at least in the abstract, an undisputed norm. Derived from classical ideas of mercy and restraint and given moral depth by the just war tradition, protecting civilians has arguably become the linchpin of modern humanitarian norms. Clearly, this isn’t enough. The laws of war have been refined and reinforced, and humanitarian sentiment is running high, yet civilians continue to bear the brunt of war. New wars have become the new killing fields. Since 1990, some eight million civilians, most of them in central Africa, have died from the direct and indirect effects of war.²¹ As many as 100 million people have been driven from their homes or countries. According to the Office of the UN High Commissioner for Refugees (UNHCR), at the end of 2014, 60 million people, half of them children, were displaced by war and persecution. A record 14 million people—many from Syria, South Sudan, the Central African Republic, Ukraine, Pakistan, and Myanmar—were newly displaced in 2014 (Sengupta 2015).

The scale of violence and dispossession reflects the persistence of anti-civilian ideologies as well as the sheer vulnerability of noncombatants in modern conflicts. From Bosnia to Burundi, civilians have become instruments and objects of violence: as strategic targets, targets of intimidation and terror, victims of collective punishment and reprisal, or of racial or ethnic hatreds. While the overall number of armed conflicts has declined since the early 1990s, one-sided violence against civilians, mostly committed by states, has grown (Stepanova 2009; Eck and Hultman 2007:237). Liberal militaries that ostensibly distinguish between soldiers and civilians also kill large numbers of noncombatants. Daniel Rothbart (2012:115) argues that the militaristic framing of war fuels “civilian objectification,” often with lethal results. Martin Shaw (2004) says that “direct killing of civilians by Western forces has become a normal feature of recent campaigns.” New tactics and technologies, the allocation of risk between combatants and noncombatants, and expansive definitions of what constitutes active participation in hostilities all put pressure on the civilian idea. In high-mobility operations there often isn’t time to warn civilians of impending attacks; airstrikes penetrate ever deeper into densely populated urban spaces; the power of explosives keeps expanding; bomber aircraft, land mines, mortars, and machine guns have proliferated; counterinsurgencies are fought in close civilian quarters (Fellmeth 2008:455).

The toll also reflects the shifting boundaries of what constitutes legitimate violence in wartime. Civilian protections have ebbed and flowed, but there is no paradise lost. European set-piece wars are considered the high-water mark in this history, but those too could be nightmares for noncombatants. Most tableaux of the Thirty Years’ War, for example, depict uniformed soldiers squaring off on neatly groomed battlegrounds, but Jacques Callot’s “Miseries of War” etchings (1633) present a truer picture of the plunder and abuse of noncombatants, the displaced masses huddled in cities, the war-borne disease that depopulated Europe in the seventeenth century. If chivalry wore thin in Europe, it failed completely in overseas wars of conquest and occupation. Industrialized warfare has been horrific, civil wars grim, state-building campaigns brutal. Norms break down as wars wear on. Atrocities spike as one side gains predominance and the other side is less able to retaliate (Dunoff and Trachtman 1999).

The civilian can seem like a pure Platonic form, essential for understanding but forever out of reach. Historians wince at references to civilians as stock, decontextualized figures. Geoffrey Best (1980:285) says the “classic clarity of the textbook categories” can strike soldiers and resistance-minded individuals alike as “incredible.” Religious ethicist James Turner Johnson scarcely uses the word in his works on the just war tradition. “The functional role of civilians in war has differed not only over history,” he observes, “but also from culture to culture and even, within a culture, from one armed force to another” (Johnson 2000:445). The term was first used in treaty law in a single reference each in Hague II (1899) and Hague IV (1907), in chapters dealing with spies. It appears 28 times in Geneva Convention (IV) Relative to the Protection of Civilian Persons in War (1949), and some 200 times in the Additional Protocols (1977).

While indispensable to any discussion of modern war, “the civilian” has yet to evoke a definition beyond that of a noncombatant: someone who does not take an active part in hostilities, or someone who is not currently taking an active part in hostilities. Civilians are defined in the negative. The Geneva Conventions consider combatants as members of state (or, under the Additional Protocols, non-state) armed forces who are under command control, wear a uniform or other distinctive emblem recognizable from a distance, carry arms openly, and follow the laws and customs of war. People who take up arms to fight off an invading force but who are not yet organized militarily are also considered combatants. Everyone else is a civilian.

Defining civilians as noncombatants comes at a cost. Making combatants the prime referent deprives civilians of a positive identity to buffer them from violence. Upholding the autonomy of civilians is critical as legal interpretations of active participation creep toward non-material and non-military support. A negative definition also heads off serious consideration of the civilian idea itself (Kinsella 2011:6). To be a civilian is to pursue the positive goods of civilian life free of coercion and fear. Finally, the approach narrows what protection means. Merely refraining from targeting civilians as though they were combatants eclipses other, more affirmative interpretations of the law.

Of course, combatants and noncombatants are not always as distinctive as the laws of war suppose. As Helen Kinsella (2011) wonderfully puts it, the civilian represents “the image before the weapon”—the soldier’s view of the person standing before him. The soldier thinks, “I will not harm you because you do not appear to pose me harm.” That view (and the even more myopic view held by state and society back home) is undoubtedly colored by the mode of war, tolerance for risk, and the interests believed to be at stake, not to mention fear and loathing and other pathologies of war. The image rarely reflects the civilian’s own account of herself and her case for protection: “I’m studying to be a nurse.” “I’m on my way to see a friend.” “My family needs me.” At that moment, the civilian looks less like a right-holder laying claim against a duty-holder than a subject kneeling before the sovereign, pleading for mercy.²²

Today, certain ideal types of civilians are safely beyond dispute, at least as objects of direct violence. But others face ambivalence or even hostility. UN Human Rights Council Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Philip Alston notes “a tendency to expand who may permissibly be targeted and under what conditions” (UN Human Rights Council 2010b). Distinguishing between civilians and soldiers is often presented as a matter of specialized knowledge and expertise, further insulating tactical choices and targeting decisions from critical scrutiny (Winter 2011:506). Belligerents of all types would cast people outside the protection of the law. Many exclusionary practices stem from what Frédéric Mégret (2006:268) calls the “anthropology of savagery.” Civilizational or religious wars, and nationalist, ethnic, and separatist strife are framed to exclude even the possibility of rights. Kant himself dismissed “lawless savages … devoid of right” (Reiss 1996:165). Unruly subjects are demonized as “rebels,” “bandits,” or “terrorists” in order to deny them formal belligerent status and restrict protections accorded them (Bhatia 2005). Sometimes the labels fit, but the same broadsides are leveled at sympathizers and supporters, even whole peoples, paving the way for collective punishment.

Particular modes of war further delineate civilians and the rights they ought to hold. The assumptions of set-piece battles differ sharply from those of partisan warfare, peasant uprising, or the levée en masse, for example. Turney-High’s Primitive Wars (1991:23) argued that a proper army is organized and purposeful: “true war” involved tactics, command and control, sustained campaigns, a clear motive, and adequate lines of supply. Informal warfare, on the other hand, entailed little more than “face-painting and sporadic butchery”—something you’d read about in National Geographic rather than Jane’s Defence Weekly.

In contemporary warfare, high strategy and advanced technology continue to frame civilian losses as unavoidable tragedies. After all, the best technology was used to try to avoid these “accidents” (T. Smith 2002b; Owens 2003; Zehfuss 2011). If an army believes that civilians inevitably will be caught up in insurgency or separatist strife, complacency settles over efforts to improve their lot. Strategic-legal categorizations erode the rights of detainees, too, both the meticulous classification of “high-value” suspects and the anodyne treatment of low-value ones. For a time in Iraq, the U.S. adopted the term “person under control,” or “PUC.” Political philosopher Giorgio Agamben (2005:3) described these people in limbo as “legally unnameable and classifiable being[s].… Neither prisoners nor persons accused, but simply ‘detainees,’ they are the object of a pure de facto rule.”

The Depth and Detail of Rights

The specificity of rights helps to counteract this dehumanization. Rights defenders have always married high principle to a detailed catalogue of abuses. In the sixteenth century, the Dominican friar Bartolomé de las Casas (1552) pleaded for the dignified treatment of indigenous Americans on grounds that they were rational beings in the eyes of God. His theological claims were rounded out with lurid details of the conquistadores’ crimes, “the horrid and unexampled massacres, butcheries, and all manner of cruelties, that Hell and Malice could invent.” This kind of graphic narrative remains the stock in trade of human rights advocacy. Human rights methodologies—site visits, surveys, hospital records, monitoring, and public reporting—are similarly almost ethnographic in their concreteness and detail (O’Flaherty and Ulrich 2010; Jacobsen 2008).

The laws of war set specific rules covering a range of issues, from respect for cultural property, to the treatment of human remains, to the release and repatriation of prisoners of war. However, the closer one gets to core questions of strategy and necessity the more general the rules become (M. Schmitt 2007). But it is also true that international norms are constantly being tested and revisited as general rules collide with particular cases. So it is with the rules of war, where principles of proportionality or military advantage are often hard to square with the actual consequences on the ground (Sandholtz 2008).

Consider the targeting or commandeering of schools by armed forces. Schools are classic civilian structures. But because they tend to be centrally located and solidly built, belligerents often use them as barracks, weapons depots, firing positions, or detention and interrogation centers. The laws of war allow combatants to use schools for military purposes—rendering them military “objects” and thus legitimate targets of attack—as long as the building is not simultaneously being used for educational purposes. Note how quickly and legally schools are militarized. By allowing belligerents to transform a school into a barracks or a weapons depot, IHL effectively trumps the children’s right to an education. “Guaranteeing the right to education is rarely a priority, or even a consideration, for armed forces and armed groups engaged in fighting,” notes the Global Coalition to Protect Education from Attack (2012:55). “Even those armed forces that pride themselves on their knowledge and compliance with the laws of war may be unaccustomed and unfamiliar with the idea of having to take into consideration children’s rights or economic and social rights when planning maneuvers and tactics for the battlefield.”

This isn’t to say that IHL is callous or uncaring. The law forbids categorically deliberately targeting schools as such. But protection ultimately hinges on operational rather than humanitarian demands, in the sense that schools are not protected from being militarized in the first place. By contrast, human rights focuses less on the intentions of those targeting or taking over schools and more on the actual consequences for students, teachers, and the community. A student described to Human Rights Watch how his school in Jharkhand state, India, had been blown up by Maoist fighters in 2009:

The school has been damaged. There is no education happening here. There are no teachers, no instructors, no benches, no fans, nothing. The whole building has been ruined. The windows are smashed and blown. The floor is cracked, [and] so are the walls and ceiling. Even the door is broken. Everything is in ruins. (Human Rights Watch 2011:5)

Across the wartorn areas of the Middle East and North Africa, 13 million students—40 percent of the school-age population—were out of school in 2015. In Syria, Iraq, Yemen, and Libya, nearly 9,000 schools were closed because they had been damaged or destroyed or seized by belligerents or converted to shelters for the displaced (Gladstone 2015). In Syria the physical and bureaucratic school infrastructure has collapsed, leaving approximately 2 million children out of school. A fifteen-year-old boy noted the irony of seeing his schoolhouse turned into an interrogation center:

Some men came to our village. I tried to escape, but they took me to jail. Except it wasn’t a jail—it was my old school. It’s ironic—they took me there to torture me, in the same place I used to go to school to learn.… They had taken over the school and made it into a torture center. (Global Coalition to Protect Education from Attack 2012:8)

A Syrian refugee living in Lebanon recalled,

students don’t go to school, because when they did there were shells—I think they targeted the school because shells fell all across it. Students were leaving to go home in the afternoon when it started and two children died—they were both very young. I am in ninth grade but this war stopped me from graduating and now my future is destroyed. (UNESCO 2013)

These impacts have rippled across the region. Among Syrian refugees in Lebanon, Jordan, and Turkey some 700,000 children are not enrolled in school. The High Commissioner for Refugees described “a generation of traumatised, isolated, and suffering Syrian children” (Onishi 2013; UNHCR 2013). Detail and data underscore what is at stake: the safety of students and teachers, school enrollment and retention rates, and successful educational outcomes that open the doors to children’s aspirations. As rights tap into this local knowledge the life-shattering effects of war come into focus. Without the structure and path to the future that schools provide, children are more likely to fall into radicalism and violence. Parents are apt to pull girls and young women in particular out of school, and it can take years to make up for lost education and training.

Or take the case of drone warfare. Many humanitarian lawyers have expressed skepticism about the risk-free nature of drone-based missile attacks and the “moral disconnections” of remote killing (O’Connell 2012; Whetham 2012). But the strategic frame of reference is constant: Were the people killed or wounded militants? Was the intelligence accurate? Will the attacks advance the overall war effort? This line of questions framed the discussion in terms of the capabilities of the drones and the intentions of their far-distant operators rather than the actual effects on people on the ground.

Human rights analysts paint a more visceral picture of the violence. U.S. drone activity is most active in Pakistan, Afghanistan, and Yemen. Drone attacks include both “named” strikes that target identified individuals or groups, and “signature strikes” or “Terrorism Attack Disruption Strikes,” in which the drones hover overhead while their operators look for suspicious “life patterns” that would indicate planning or participation in terrorism. Both kinds of strikes are conducted with deliberation and care, but there is always a danger of imposing a predetermined pattern on ambiguous circumstances (Cockburn 2015:15–16). Misidentifications and mis-strikes are routine. Wedding parties, family gatherings, and work details have all been struck. To some degree these “accidents” are driven by policy, particularly the working assumption that males of military age found in the vicinity of a suspected militant are themselves involved. Because of a tactic known as the “double tap” in which the targeted site is struck multiple times in relatively rapid succession, people are often afraid to help the wounded or collect the dead.

Life in the shadow of drones narrows. Residents are afraid to go to school, to attend weddings or funerals, or to gather for jirga councils. Particular rights are abridged: the right to life, but also the rights to assemble, to work, to be educated, to observe social and cultural traditions, and so on. Authorities rarely investigate attacks, much less acknowledge the harm victims suffer, or provide remedy or redress.

The psychological effects of drone warfare are pronounced. The incessant circling of drones overhead affects everyone under their gaze. (In Gaza, the slang word for drones is “zananas,” an Arabic word for a bee’s buzz.) The largest human rights survey of drone violence in Pakistan’s North Waziristan Agency to date was conducted in 2012 by researchers from the International Human Rights and Conflict Resolution Clinic at Stanford University Law School, and the Global Justice Clinic at New York University School of Law (2012). Witnesses described the “constant and severe fear, anxiety, and stress” of living under drones, especially given the helplessness to ensure their safety (55). A psychiatrist described it as “anticipatory anxiety” (81) over the ever-present possibility of a strike wedded to the impotence to do anything about it. Villagers are at the mercy of the information and technology of the targeteers. One witness said the sound of the drones elicited “a wave of terror.” “Children, grown-up people, women, they are terrified …. They scream in terror” (81).

Everyone is scared all the time. When we’re sitting together to have a meeting, we’re scared there might be a strike. When you can hear the drone circling in the sky, you think it might strike you. We’re always scared. We always have this fear in our head. (81)

Drones are always on my mind. It makes it difficult to sleep. They are like a mosquito. Even when you don’t see them, you can hear them, you know they are there. (83–84)

When [children] hear the drones, they get really scared, and they can hear them all the time so they’re always fearful that the drone is going to attack them.… Because of the noise, we’re psychologically disturbed—women, men, and children.… Twenty-four hours, [a] person is in stress and there is pain in his head. (86–87)

Our minds have been diverted from studying. We cannot learn things because we are always in fear of the drones hovering over us, and it really scares the small kids who go to school. (90)

Amnesty International’s interviews with survivors of nine separate drone strikes in North Waziristan also highlighted these psychological impacts. “Children have lost their mental balance, they are afraid all the time,” said a resident of the village of Zowi Sidgi, a transit point a few miles from the Afghan border, where eighteen men were killed and at least twenty-two wounded in a drone strike in July 2012 (Amnesty International 2013:33). On October 24, 2012, in Ghundi Kala, a sixty-eight-year-old woman named Mamana Bibi was picking okra in the family field when she was blown to pieces by two Hellfire missiles fired from a U.S. drone aircraft. A second strike followed several minutes later. The aircraft had hovered over the farm for perhaps two hours before unleashing the missiles: not exactly the fog of war. From the perspective of the villagers, the killing was completely arbitrary. “I wasn’t scared of drones before,” said the woman’s eight-year-old granddaughter, Nabeela, “but now when they fly overhead I wonder, will I be next?” (Amnesty International 2013:7).

Terrified children, sleep disorders, traumatic stress, lives arbitrarily snatched away, residents paralyzed by fear: whether the drone strikes were legal or not is almost beside the point. A witness to the killings in Zowi Sidgi pleaded, “At least for the sake of human rights they should stop these drone strikes” (Amnesty International 2013:56).

Rights serve as a touchstone for what is right and wrong amid the turmoil. For its People on War Report the ICRC commissioned a survey of 13,000 combatants and civilians across 12 war-torn regions. The norms cited by the respondents centered around notions of human rights, “humanness,” and “staying human.” Certain kinds of conduct were wrong because they violated human rights and human dignity. Overall, 49 percent based their judgment on rights, by far the most common reason cited. Soldiers in Bosnia-Herzegovina referred to “a human rule … basically, human dignity is a stronger rule than any written one.” “I know prisoners should be treated as human beings and not as animals”; “God forbid! I think that we’re not on the level of such savages”; and “one of the battles we fought in this war was a battle to stay human.” In Lebanon, respondents said war brought out “animal instincts,” “which meant no respect for human rights” (ICRC 2000:14–15).

In the recent wars in Chechnya, human rights practices became “one of the only ways to recover the dignity Chechens had been so crudely deprived of.” Lawyers in Moscow or London publicized abuses and helped victims petition the courts. But ultimately these were the Chechens’ own claims. Documenting human rights abuses became “an organizing principle around which fears, anger, and disillusionment could coalesce and find new direction in a search for authenticity and truth” (Gilligan 2010:162). During the war in Sierra Leone (1991–2002), violence and displacement shattered many traditional social arrangements based on religion and patrimonial ties. A kind of creole, or localized rendering of universal right, took their place. This was especially true with regard to the just and fair treatment of “strangers,” that is, people who had been displaced from the chiefdom of their birth, such as traders, migrant workers, or refugees.²³ In Pakistan, many victims of drone strikes have filed lawsuits against government officials for failing to protect their rights as citizens, including the right not be assassinated by a foreign government (Shah 2014). In Nepal, where civilians were squeezed between extortionist Maoists and heavy-handed government forces, public discontent has been channeled into a regenerative social movement led by a human rights clearinghouse known as the Informal Sector Service Center.

More surprising, human rights norms can transform the identity and interests of combatants. Rights become part of the normative culture in which belligerents think and act. As the reputation, or “audience,” costs of violating rights rise, it becomes clear that military attitudes and practices are not completely dyed in the wool of Realpolitik. As researchers have shown in the case of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines (1997), for example, human rights and other civil society actors can mobilize to reverse basic military practices (Price 1998). Security communities can undergo similar transformations. In recent years, middle powers such as Canada and Australia have emerged as arbiters of humanitarian norms; that identity has infused their foreign and military policies. Although it struggled to square ends and means during its high-flying intervention in Libya or on the ground in Afghanistan, even NATO has arguably reinvented itself as a champion of civilian protections.

Normative and pragmatic motivations can also converge on rights. For much of the Iraq War, e.g., the coalition struggled to achieve military goals and protect civilians. In Afghanistan, however, civilian security was at the core of the mission. “What are we here for?,” Brigadier General Larry Nicholson, the top Marine commander in Afghanistan at the time, shouted to his troops in the run-up to the Marja offensive in February 2010. “The people,” the marines yelled (de Montesquiou and Riechmann 2010). This was not just parade ground zeal, but studied doctrine that protecting Afghan civilians from Taliban tyranny as well as from American bombs was the way to win. The quest to protect civilians and ostracize insurgents arguably led straight down the path of human rights—not just security and subsistence rights, but the civil and political rights of Afghans to order their own affairs. Some Pentagon brass sounded like evangelists for the Rights of Man, framing the war on terror as “a historic debate about the rule of law and human rights,” as a U.S. marine reserve general put it (Serwer 2009).

This isn’t to say that militaries don’t push back. They do, sometimes ferociously. For institutions schooled in humanitarian law, the turn to human rights is not obvious. As we will see in the next chapter, states often cry foul, saying the turn to rights constitutes “lawfare,” or legal overreach. Indeed, violations of human rights can become the norm. In the wake of the September 11, 2001 attacks, a number of signatories to the International Convention on Civil and Political Rights adopted repressive anti-terror policies or rebranded ongoing counterinsurgencies as more aggressive counter-terror operations (Darcy and Collinson 2009:6; International Commission of Jurists 2009). Still, while human rights may struggle for recognition, no serious discussion ignores them altogether. Even if states can legally derogate from certain of their human rights obligations in wartime, they can’t escape the residual effect of rights. There’s no covering up how people should be treated.

Human Rights and New Media

There’s no covering up the abuses either. The civilian is a cause tailor-made for the media age. During the Vietnam War, U.S. Army combat photographer Ronald Haeberle published his iconic photographs of the My Lai massacre 20 months after the killings. Released over the Pentagon’s objections, the pictures—of women pleading for their lives, and of the contorted bodies of villagers, some belonging to infants, jumbled together on a dirt levee—first appeared in grainy black and white on the front page of Haeberle’s home town newspaper, the Cleveland Plain Dealer. Today, digital images of atrocities circle the planet in seconds. A surge of visuality and viral outrage has been dubbed the “Neda effect,” after Neda Agha-Soltan, a twenty-six-year-old student who was shot and killed by a pro-government sniper during a June 2009 street protest in Tehran. Several bystanders recorded her dying minute on cell phone cameras. One of the videos focuses on Neda’s face. Her eyes turn from wide-open alarm to vacant as she bleeds out onto the pavement. Within hours, the video was uploaded on YouTube. By the end of the day it had become a “trending topic” on Twitter, and Neda’s story was quickly picked up by other media. Time magazine called it “probably the mostly widely witnessed death in human history” (Mahr 2009). It was one of the sharpest indictments of the ayatollahs in thirty years of Islamic rule. Nicholas Kristof (2009) called the Tehran uprising “the quintessential 21st-century conflict. On one side are government thugs firing bullets. On the other side are young protestors firing ‘tweets.’ ” The incident led to the quip: “Two mullahs gaze out on a crowd of protesters in Tehran. The one says, ‘Arrest the correspondents.’ To which the despondent reply is: ‘But they’re all correspondents!’ ” (Roger Cohen 2009).

New media serve as pathways for new norms. Charli Carpenter (2012) suggests that “the single biggest shift in the sociology of war in the past quarter-century has been not in the way it is fought, but in the relationship between its grim realities and the perceptions of those on the home front … the increasing visibility of ordinary warfare.” This is partly the visual and narrative product of a new kind of “advocacy journalism” or “journalism of attachment” that isn’t shy about taking sides in conflicts (Hammond 2002). But countless nodes of data also provide unprecedented exposure and access (Kaempf 2013). Video (sometimes called the other “air war”) and jpegs are backed up by NGO reports, journalistic accounts, Freedom of Information Act (FOIA) documents, leaked or hacked information, data compiled by body-counters scouring news outlets, and up-to-the-minute local content. During the Iraq War an anonymous Baghdad blogger known as Riverbend (2005) became an internet celebrity as she chronicled the occupation through the eyes of ordinary Iraqis. Anyone could download an “Iraqi death estimator” in order to track, like a national debt clock, the mounting civilian toll.

Images have become almost the sine qua non to distinguish particular atrocities from the general tragedy of war. The Haditha killings came to light only after a videotape of the bodies was circulated by the Hammurabi Human Rights Organization, an Iraqi NGO. The notoriety of the case of Baha Mousa, the hotel receptionist tortured to death by British soldiers in Basra, was almost guaranteed by the visual narrative that surfaced. The “before” images consisted of a one-minute movie taken on a soldier’s cell phone at the beginning of Mousa’s interrogation. The footage showed Mousa, hooded and handcuffed, being screamed at and forced into painful stress positions by the soldiers. The “after” images consisted of 46 autopsy photographs released at the inquest, including a close-up of the grotesquely bruised face of the dead Iraqi, two plastic tubes protruding from his mouth, apparently from an attempt to resuscitate him. Google “Baha Mousa” and that particular image appears, unbidden, on the results page, even before you click any of the links.

Public opinion can pivot on a seminal photograph. During the Yugoslav wars, sympathy for the Bosnian cause was galvanized almost overnight by Roy Gutman’s Newsday stories and Britain’s Independent Television News footage of gaunt Bosnian prisoners peering through the barbed wire of a Serbian concentration camp—echoes of the Holocaust. New York Times photographer Tyler Hicks’s stunning images of four boys killed by an Israeli airstrike while they played on a beach in Gaza prompted one of the IDF’s few formal investigations into the conduct of the war. Some images, such as the Abu Ghraib jpegs, reflect the naïve gaze of the tourist-as-torturer. Others are deliberately composed to create “witnessing publics”—not passive onlookers but responsible, implicated viewers forced to take a moral stand (Torchin 2006). Sharon Sliwinski’s description of Francisco de Goya’s harrowing etchings of the Napoleonic wars in Spain, “The Disasters of War” (1810–1815), could easily apply to many recent images from Bosnia, Darfur, or Iraq:

Spectators are positioned to gaze upon these terrors from the viewpoint of a bystander. Each composition is carefully arranged as a fragile bridge between the spectator’s perspective and the events occurring in the picture. The sense of proximity transforms the viewer into a witness … spectators are called into these scenes, summoned to face these terrible events as if they were present. (Sliwinski 2011:51)

This kind of image politics is central to the promotion of human rights. Pictures put a face on abuses, often training attention on individuals in a sea of suffering. Advocacy campaigns increasingly use locally sourced content remixed with global ideas. “See it, film it, change it” is the mantra of the Witness Project, whose “Cameras Everywhere” initiative sought to put movie cameras in the hands of people in the midst of conflicts.

This democratization of access and exposure has unsettled what had been the carefully managed visual landscape of war (L. Kennedy 2009). During the Vietnam War, General William Westmoreland decried the unfiltered television coverage of the first living-room war. “Without censorship,” he said, “things can get terribly confused in the public mind” (quoted in Tsouras 2005:65). When the Abu Ghraib story broke in a flurry of digital photographs, U.S. Secretary of Defense Donald Rumsfeld lamented the difficulties of operating “in the information age, where people are running around with digital cameras and taking these unbelievable photos” (quoted in L. Kennedy 2009:817). Rumsfeld was worried that the Abu Ghraib pictures were being circulated in violation of the Geneva Conventions, which protect prisoners of war against “insults and public curiosity.” But he was also watching the official narrative of the war slip away. It was impossible to reconcile a “humanitarian” war with photos of prisoners being humiliated and tortured by American M.P.s. (who are mugging it up for the camera). The pictures revealed what is usually unseen and unknown in wartime: the interior environments of detention centers, interrogation rooms, and prison cells, as well as the tools of torture—leashes, black hoods, dogs, chemical light tubes, broomsticks, electrical wire. Glimpses of the banality of abuse in situ made systematic torture seem all the more plausible (Whitty 2010:696).

Cameras are everywhere in today’s wars. Overhead, drones, satellites, and remote sensing reveal panoramic effects of conflicts. This “human rights mapping” has identified artillery placed in civilian zones, mass executions and grave sites, homes targeted based on the ethnicity of the inhabitants, political prison camps, the removal of civilian populations, and the destruction of villages (Marx and Goward 2013). The UN monitors humanitarian crises via its proprietary UNOSAT satellite system, sometimes publishing images of events as they unfold—of civilian convoys fleeing Chad’s war-riven capital N’Djamena in February 2008, or of pockmarked fields where the Sri Lankan Air Force bombed a civilian “safe haven” in spring 2009. The technological capabilities of NGOs to remotely monitor conflicts now outstrip the capacity of many state governments. Amnesty International’s “Eyes on Darfur” project shows before-and-after satellite photographs of villages burned and depopulated by the Janjaweed. Working with experts from the American Association for the Advancement of Science, Amnesty has used similar geospatial technologies to convey displacement and destruction in the Swat Valley in Pakistan, in Kyrgyzstan, New Orleans, Sri Lanka, Chad, Georgia, Lebanon, Burma, Congo, Ethiopia, Nigeria, Syria, and Burundi.

Images from the front line convey the day-to-day reality of war, the visceral as well as the mundane. These are YouTube wars (N. Cohen 2010). Soldiers upload combat videos to the web; e-mail souvenir jpegs to friends; tweet from the war zone; or post text and image on “milblogs.” Much of this content humanizes military experience, showing the decidedly anti-heroic life of the enlisted man or woman. But other images show spectacular levels of violence. One clip filmed by U.S. ground troops in Iraq showed two airstrikes on a large, apparently new, mosque that possibly had been used by insurgents as a firing position or a weapons cache—the video gives no context. The first missile flattens the main body of the mosque; the second explodes the minaret. A billow of dust lifts, and nothing but rubble remains. The ground soldiers seem awestruck. “Bad-aaaaas. That was sweeeeeet,” says one.²⁴

With this much information in play, media management teams can’t be far behind. Belligerents marshal evidence and tailor information much like public relations firms. In 2007 the U.S. Department of Defense launched its own YouTube channel, MNFIRAQ (Multi-National Force—Iraq) (“the clips are ours, the conclusions are yours”). The site offered what it called a “boots on the ground perspective on the war,” but the propagandist’s hand is also evident in the selective focus on American soldiers engaging in clean combat and aiding local Iraqis (Andén-Papadopoulos 2009:923). At the low end, combatants organize on Facebook and proselytize on Twitter. With barriers to entry virtually nil, it’s a rare insurgent movement that doesn’t have a web site. Heightened visibility has increased the propaganda value of the other side’s targeting errors or collateral damage. Davids fighting Goliaths often seem perfectly willing to draw their brothers and sisters into the fight in hopes of making them, willing or not, front-page martyrs for the cause (Skerker 2004).

During the Gaza Wars, Hamas and the Israeli Defense Forces (IDF) waged breaking-news media offenses. Both sides plied the internet with blogs, You-Tube, and Facebook. An IDF “vlog,” or video blog, provided a running narrative of Israeli restraint and precision in contrast to Hamas’s reckless and deliberate endangerment of civilians on both sides of the conflict. In one clip, a Hamas fighter, gun slung over his shoulder, dashes across a street carrying a young boy as a shield against Israeli snipers.²⁵ In another, unexpectedly gruesome, YouTube skirmish, the IDF and Hamas accused each other of deliberately slaughtering animals in the Gaza Zoo: animal rights meet modern warfare.

Very different sorts of images are found on the so-called “war porn” websites. Billed as an unedited look at war, the sites feature soldiers’ photographs of severed arms, legs, or fingers, spilled intestines, or decapitated heads (“headshots,” in the posting lingo), often accompanied by crude or flippant remarks (“name this body part”; “that’s gotta hurt!”) as well as technical chat about what kind of weapon likely caused the damage depicted. This is the digital flotsam of today’s wars. But many soldiers who post pictures or contribute comments say the images force viewers to reckon with the true costs of war; that they’re a corrective to conventional media coverage that sanitizes war as a matter of decency and taste. “Maybe then the public will not be so rah-rah about killing people,” noted a user named “some more gore from the Q” (quoted in Andén-Papadopoulos 2009:924).

Of course, information and images of this sort are easy to manipulate. Iconic photographs mislead by abstraction and saturation. Some images go viral while others languish. Information activism has its moral hazards, too. Susan Sontag (2003) reminds us that a barrage of war images can be overwhelming and paralyzing. The privacy and safety of those uploading pictures can be put at risk (images and audio leave digital traces that can be used to identify the originator). Spin is endemic. While information broadcast by human rights groups usually adheres to certain standards of proof, user-generated and edited content usually doesn’t. Images are often shorn of context. Truth can dissolve in a mash-up of borrowed jpegs and bad information. On the user end, shallow “clicktivism” can replace meaningful study and engagement (Witness 2011; Carpenter 2012).

Greater transparency won’t of itself lead to greater accountability or better human rights outcomes. But the ubiquity of new media makes it more likely that the truth will out and that we will have a more detailed and less curated grasp on the reality of war. WikiLeaks was able to obtain, decrypt, and post on YouTube a 38-minute audio-video clip filmed from the turret of a U.S. Apache helicopter that showed the killing in July 2007 in the Iraqi suburb of New Baghdad of 18 people, including two Reuters journalists, by a burst of rounds fired from the gunship’s 30 mm cannons, followed by attacks on a van attempting to rescue the wounded.²⁶ The gross disparity of power, combined with the callous banter of the gunners during the killings, makes the video disturbing to watch. Even taking into account the fact that one person on the ground appears to be holding an RPG rocket launcher and that a 3-minute version of the video was misleadingly edited, the episode belied official assurances that all the victims were confirmed militants, and cast doubt on the overarching U.S. narrative about the care and precision of attacks. After Pentagon officials defended the killings as within the rules of engagement (ROE) in force at the time, WikiLeaks posted classified versions of the ROE to suggest that wasn’t the case either.

The Power of Human Rights

The obstacles to realizing human rights in war are many: deference to the war powers of executive branches, push-back from militaries, and the view that vital issues of national security are ultimately beyond the reach of “peacetime” laws, just to mention a few. Human rights continue to combat the frankly militaristic idea that an acceptable measure of civilian harm is unavoidable and even expected in contemporary war. The more axiomatic and self-evident that belief becomes, the harder it will be to pursue brighter humanitarian hopes. Still, the currency of rights in international thought and practice is formidable and growing. Naturally skeptical of the exercise of power, unfettered by military mores, and singularly humanitarian in aim, human rights norms defend the continuity of rights in dark times, set a high threshold to infringe the right to life, and show healthy skepticism toward the recourse to war, and distrust, perhaps even incredulity, toward military claims regarding the conduct of operations. Rights bring the long-term and cumulative impacts of war into focus, highlighting the terrorization of people even by lawful attacks, and counting the true cost of war.