The 73-page report is heartbreaking.  It contains information from 128 interviewees interviewed by three Human Rights Watch staffers.  The accounts of murder, violence against children through child soldiers, rape, torture, abduction, and unimaginable brutality are not easy to read.  I did, however, feel a duty to pay attention to these accounts.

Astonishingly (at least to this Western writer), the 312 murders and 250 abductions went relatively unnoticed for months.  The area’s remoteness slowed communication, assistance, and investigation.  This persistent isolation surely devastates the local population, who were unimaginably terrorized by these atrocities.  Thanks to the courageous interviewees and interviewers, the world can take notice and seek some measure of justice.

The Human Rights Watch report calls for justice by addressing several stakeholders.  It first demands that the LRA cease its attacks and release its prisoners.

The report then addresses the governments of the Congo, Uganda, Central African Republic, and Southern Sudan, calling on these governments to focus on protecting civilians.  Part of the problem seems to stem from these government’s politically- and strategically-based shortcomings.  The governments failed the people of Congo by misrepresenting the strength of the LRA, by not contingently planning for the aftermath of failed military attacks on the LRA, and by lacking sufficient resources to respond to the attacks.

For these shortcomings, Human Rights Watch has asked these countries to improve on their future efforts and provide some measure of assistance to the traumatized Congolese citizens.

Congo in particular has been asked to tighten its policy against human rights abuses, particularly on the apparently abusive Congolese military’s own soldiers.  Regardless of rank, nationality, or circumstance, Human Rights Watch has called for zero tolerance for human rights abuses.  To reduce these abuses, Congo should provide soldiers with sufficient compensation and food.  Human Rights Watch has also called on the Congo to set up additional judicial mechanisms with international support to hold violators accountable.

Human Rights Watch has further called on international actors—Uganda, the UN, the ICC, individual donors, regional organizations, and the United States—to increase support in the struggle against the LRA.  Considering the LRA’s bloody history, this broad coalition of actors should answer the call to eliminate the LRA—a group of only an estimated 250.

Of course, international law plays a role here.  On the surface, humanitarian law calls for international criminal prosecution of the LRA’s leaders.  Clearly, the LRA’s war crimes and crimes against humanity beg for international criminal accountability.

The human rights implications are perhaps more subtle.  You see, while international human rights law may not provide a direct remedy against the LRA, it does hang in the background to push the Congolese government to act in support of the people of Congo.  In fact, several international human rights treaties could apply here.

In the Universal Declaration of Human Rights, Articles 3, 4, 5 respectively deal with the right to life, the protection against slavery, and cruel, inhuman, and degrading treatment.

As a party to the International Covenant on Civil and Political Rights, Congo must respect, protect, and promote its people’s civil and political rights.  In an atmosphere of poverty, isolation, and terror, the rural Congolese people are unlikely to have access to effective remedies (Art. 2), let alone to enjoy the right to life (Art. 6), freedom from cruel and inhuman treatment (Art. 7), slavery (Art. 8), or the basic respect for human dignity.

The ICCPR also binds the Congolese government to afford adequate judicial safeguards in prosecuting the perpetrators of these crimes (Art. 14).  Paradoxically, the Congolese government must also afford protection to the LRA—even in the face of its atrocities.

Other human rights treaties likewise loom in the background.  The Convention of the Rights of the Child screams out a laundry list of protections here, considering the role of child soldiers in the LRA (see, e.g., Arts. 6, 9, 11, 19, 20, 24, 32, 33, 34, 35, 36, 37, 38, 40).  Many of these obligations not only bind Congo to increase prevention efforts—they also require Congo to provide rehabilitative help for the child victims of these atrocities.

Also, the Convention on the Elimination of All Forms of Discrimination against Women binds Congo to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”

Finally, in the spirit of African self-reliance, the African Charter on Human and People’s Rights binds Congo to protect its inhabitants.  Like the ICCPR, this treaty requires respect for life (Art. 4), dignity (Art. 5), liberty and security (Art. 6), legal remedy (Art. 7), information (Art. 9), mental health (Art. 16), family (Art. 18), and peace and security (Art. 19).

Now, the Congolese government will not likely face direct international legal action as a result of these international human rights treaties.  Nonetheless, their obligations under these instruments provide additional impetus to act to the full extent possible to respect, protect, and promote human rights in this devastated area.  Further, Congo’s compliance with these obligations will play hand-in-hand with the much needed support from outside actors, be they fellow African nations, international organizations, or the U.S.

It seems each of these actors has a role to play, especially the U.S.  Through its relatively new organization, Africom, the U.S. has pledged to support countries like Congo who desperately need assistance.  While the U.S. has already provided a large amount of aid to stop the LRA, more action appears to be on the way.

In fact, a bill before the House Foreign Relations Committee called the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act could further bind the Obama Administration to stop the LRA in short order.  Hopefully, the Human Rights Watch report will reach the U.S. people who will in turn urge their representatives to take all reasonable measures to end such atrocities at the hands of the LRA.

Expansion of U.S. involvement in Iraq and Afghanistan has made private military and security contractors (PMSCs) virtually indispensable. In her book One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy, Allison Stanger reveals that last year, PMSCs accounted for 48 percent of the U.S. Defense Department’s workforce in Iraq and 57 percent in Afghanistan.[2] “Without a multinational contractor force to fill the gap,” she argues, “we would need a draft to execute these twin interventions.”[3] Hired help it seems, is the only way for a thinly stretched U.S. military to sustain current operations.

“On a superficial level, the shift means that most of those representing the United States … will be wearing the scruffy cargo pants, polo shirts, baseball caps and other casual accoutrements favored by overseas contractors rather than the fatigues and flight suits of the military.”[4] A closer look reveals that today’s private contractors do everything from providing security services at U.S. embassies[5] to performing “enhanced interrogations” – a.k.a. torture[6] – at Abu Ghraib and loading bombs onto remotely piloted Predator drones that lethally target members of Al Qaeda.[7]

This growing involvement in core military operations has sparked debate over the role, status and accountability of private contractors under international humanitarian law (IHL). In her contribution to the International Review of the Red Cross, Lindsey Cameron suggests that two incidents – to which I shall add a third – have driven the discourse.[8] First, the death of four employees from Blackwater Worldwide, a private security company now known as Xe Services, and the ensuing attack on Fallujah in 2004. The use of “overwhelming force”[9] suggests the contractors were carrying out an undeniably military function, and should be treated as combatants under IHL. The second and third incidents involved allegations of torture by CACI International of Abu Ghraib detainees and the 2007 shooting of 17 Iraqi civilians by Blackwater employees.

In effect, PMSCs are able to act outside of the law. Contractors performing military functions in armed conflicts are inter alia vulnerable to being captured and denied protection, just as they are capable of committing de facto war crimes. It is unacceptable that crimes could be committed under international law and neither an individual nor a government could be held accountable.

In dealing with PMSCs, international humanitarian law’s binary categories and status determinations (“civilian” or “combatant”) are problematic; every individual must be either a civilian or a combatant. Though clear-cut rules and mutually exclusive categories facilitate effective and coherent implementation of IHL, they also create gaps that leave the law paralyzed when it is confronted with anomalous entities that do not fit cleanly into one of the categories.

The question remains: are PMSCs combatants? Their status determination is critical because it affects whether or not an individual can (a) be targeted, (b) participate in hostilities, and (c) be prosecuted for breaches of the laws of war (as they are enshrined in the Geneva Conventions and their Additional Protocols).

Cameron argues that the status of PMSC employees hinges on either their integration into a state’s armed forces under Art. 4A(1) of the Third Geneva Convention (GCIII) or Art. 43 of Protocol I, or their qualification as “militia” under Art. 4A(2) GCIII. Meeting the first requirement depends on the internal laws of the state, while the second requires that conditions (a)-(d) of Art. 4A(2) GCIII be meet by “the group as a whole.”[10] It is challenging however, to determine the status of private contracting firms in which some members perform peaceful functions (such as feeding, housing and clothing the troops) while other members take direct part in hostilities.

The outsourcing of military functions is a modern day reality. “It is a fact that currently private contractors are the equivalent of an American Express card … the U.S. military literally can’t go to war without them,”[11] notes David Isenberg, an adjunct scholar at the Cato Institute.

“The problem is less one of the fact that outsourcing is occurring … but the issue is how it is managed,”[12] suggests Stanger. Private contractors when performing combatant functions should be held to the same humanitarian law standards as parties to the conflict. Responsibility should furthermore fall on the contracting government to manage the dissemination of IHL to ensure that any individual likely to be engaged in combat is aware of the existing legal framework that should guide his actions. We cannot continue to let private military and security contractors fall through the cracks in IHL.

[2] Based on data from the U.S. Congressional Research Service. Thomas Friedman, “The Best Allies Money Can Buy” The New York Times (3 November 2009), online: < http://www.nytimes.com/2009/11/04/opinion/04friedman.html>.

[3] Friedman, supra note 2 at 1.

[4] James Glanz, “Contractors Outnumber U.S. Troops in Afghanistan” The New York Times (1 September 2009), online: < http://www.nytimes.com/2009/09/02/world/asia/02contractors.html?_r=3&scp=1&sq=Contractors%20Outnumber%20U.S.%20Troops%20in%20Afghanistan&st=cse >

[5] Friedman, supra note 2 at 1.

[6] Ibid.

[7] James Risen and Mark Mazzetti, “C.I.A. Said to Use Outsiders to Put Bombs on Drones” The New York Times (20 August 2009), online: < http://www.nytimes.com/2009/08/21/us/21intel.html >.

[8] Cameron, supra note 1 at 574.

[9] Ibid.

[10] Cameron, supra note 1 at 583.

[11] David Isenberg, “Contractors and Cost Effectiveness” The Huffington Post (23 December 2009), online: < http://www.cato.org/pub_display.php?pub_id=11083 >.

[12] Mickey Edwards, “So who’s in charge?” The Boston Globe (25 October 2009), online: < http://www.boston.com/ae/books/articles/2009/10/25/so_whos_in_charge/ >.

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.