Luban: Human Rights Thinking and the Laws of War

David J. Luban (Georgetown Univ. - Law) has posted Human Rights Thinking and the Laws of War (in Theoretical Boundaries of Armed Conflicts and Human Rights, Jens David Ohlin, forthcoming). Here's the abstract:

In a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person… The general principle of respect for human dignity is . . . the very raison d'être of international humanitarian law and human rights law.”

Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is “perhaps better described as the law of ‘human rights in armed conflicts’”? To answer yes, I argue, amounts to a reinterpretation of IHL that drifts far from its history. This reinterpretation is what I label human rights thinking (to distinguish it from doctrinal specifics). In its origins, IHL was not designed to protect human dignity, but to reduce human suffering; it was a form of disaster relief. Human rights law, by contrast, originated as a blueprint for the kind of peacetime societies that would no longer plunge the world into what the UN Charter calls the “untold sorrow” of war.

Nevertheless, law changes. Perhaps the nature of IHL has evolved over time in the direction of human rights thinking, and should evolve that way. That is the view I defend – with some qualifications – in the final sections of this essay. First, I explore the very different genealogies of IHL and human rights law, and explain how human rights thinking migrated into IHL. I attribute the migration to international criminal law, military occupations, and reactions to the U.S. war on terrorism. In the final sections, I explore two ways human rights thinking can be pursued in wars. One of them, I will argue, overplays and overestimates what human rights thinking can accomplish. It does so by, in effect, willing away fundamental differences between war and peace. The other is an approach that I have defended for more than three decades. It consists, at bottom, of taking a civilian’s-eye view of the disasters of war and reading the law accordingly – recognizing, one might say, that Mother Courage and her children matter just as much to the law of war as Henry V and his band of brothers.