A Trend Toward the ‘Humanization’ of Conflict Law?

Israeli Targeted Killing and the relationship between international humanitarian law and human rights

The modern laws of warfare were born in the nineteenth century from Europe’s fears “about the escalating severity of war”[1]. As the decades passed, war’s means, methods, aims and tactics have changed. Suicide bombers that melt into the civilian population have replaced ordered battalions of uniformed soldiers. Strikes from unmanned Predator drones have supplanted direct confrontations on the battlefield. Wars are fought not only against states, but also against colonial domination, racist regimes and abstract social phenomena, most notably the “war on terror”.

The laws of modern warfare are enshrined in the Geneva Conventions of 1949 and their Additional Protocols. Since the First Geneva Convention was signed in 1864, international humanitarian law (IHL) has evolved in response to the changing nature of armed conflict. Protocols I and II recognize that war is not limited to a conflict where both parties are states, effectively expanding the scope of IHL to include internal armed conflicts and “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination”[2].

The nature of war however, continues to change faster than customary and conventional law. The cardinal aim of humanitarian law – to protect the victims of war – is jeopardized as gaps in protection emerge. It is often said that military forces are trained to fight the last war, not the next one[3]. Similarly, IHL is necessarily reactive; it develops in response to conflicts past.

As the nature of conflict changes, are the minimum standards of protection offered by IHL enough to achieve its primary aim? Is there a role for the aspirational provisions of international human rights law?

IHL and human rights are two distinct yet complementary regimes that govern the taking of lives. Though the former is a set of minimum standards of conduct, whereas the latter grants individual self-executing rights[4], the interests they seek to protect are inherently similar – often appearing “harmonious or even redundant”[5]. Why not use human rights to supplement the protection offered by IHL?

Traditionally, humanitarian law is defined as lex specialis to human rights, in congruence with the opinion of the International Court of Justice in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. Human rights apply in times of war, but should they contradict rules of IHL, then lex specialis generalibus derogat[6]; humanitarian law takes precedence.

Many authors, Marko Milanovic among them, suggest that this is an oversimplification. The relationship is far more complex than one of lex specialis and “cannot be explained by the single comparison of the general to the special”[7].

The 2006 Targeted Killing decision issued by the Israeli High Court of Justice (HCJ) is a noteworthy example of an attempt to further “humanize” IHL. In this case, the HCJ found that the Israeli state policy of targeted killing of Palestinian militants in the Occupied Territories could be considered legal if conducted according to the following four conditions:

“[1] The state must possess well-based, thoroughly verified information regarding the identity and activity of the civilian who is allegedly taking part in the hostilities; the burden of proof on the state is heavy.

[2] A civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed. Thus if a terrorist taking a direct part in the hostilities can be arrested, interrogated, and tried, those are the means which should be employed.

[3] If a civilian is indeed attacked, a thorough and independent investigation must be conducted regarding the precision of the identification of the target and the circumstances of the attack, and in appropriate cases compensation must be paid for harm done to innocent civilians.

[4] Finally, combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportionate to the military advantage directly anticipated from harming the combatants and terrorists.”[8]

It is interesting to note that of the four conditions, only one ([4] the requirement for proportionality) is based on principles of humanitarian law. The remaining three conditions (particularly notions of absolute necessity, recourse to due process before resort to force, and requirement of a non-lethal alternative) are derived from human rights law. Human rights norms are not being used to interpret IHL. In a rather revolutionary manner however, they are being used to restrict the application of a humanitarian norm.

This decision arguably enhances protection of the right to life in the context of armed conflicts. Is this humanization of IHL is a good thing? The broader applicability of the HCJ’s decision should also be considered. Is direct application of human rights law only justified in the unique case of prolonged belligerent occupation? Israel after all, “has a wide variety of options it can use in order to deal with terrorists, and this … augments the obligations it has under human rights law”[9]. In the absence of such a prolonged occupation, would human rights law necessarily impose such obligations restricting a state’s freedoms under international humanitarian law?

[2] Art. 4, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 [Protocol I].

[3] Evan Thomas and John Barry, “The Fight Over How to Fight” Newsweek (24 March 2008), online: <http://www.newsweek.com/id/123479>.

[4] Provost, René, International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2002) at 30.

[5] William Abresch, “A Human Rights law of Internal Armed Conflict: The European Court of Human Rights in Chechnya”, (2005) 16 Eur. J. Int’l at 743.

[6] Nils Melzer, Targeted Killing in International Law. Oxford: Oxford University Press, 2008 at 382.

[7] Milanovic, “Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case”, 866 Int’l Review of the Red Cross at 391.

[8] Supra note 7 at 390.

[9] Ibid at 392.

Share/Bookmark