Armed Conflict and Human Rights Law

Protecting Civilians and International Humanitarian Law

Daniel Ivo Odon

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000408935
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores developments in international law regarding the relationship between human rights law and international humanitarian law and their coapplicability in armed conflict situations.

The work examines the jurisprudence of the international human rights courts and looks at the Inter-American and European Courts of Human Rights case law in dealing with new emergencies in armed conflicts. It argues that a new interpretation and application of the law is required to deal with current needs while remaining faithful to moral commitments made in the international arena. In this way, the book deals with recent cases and their rationale to build a new understanding of law and international policy that complies with the globalization process and progress towards an enhancement of the international community's legal framework. Combining the emergencies in armed conflicts with the mutual enforcement of human rights law and humanitarian law, this book holistically develops concepts and theories to present a pragmatic solution to moral quandaries over the targeting of civilians during armed conflict situations.

The book will be a valuable resource for academics, researchers and policy-makers in the areas of international human rights and international humanitarian law.

1 Introduction

DOI: 10.4324/9781003170778-1

This work seeks to examine the effects that law provokes in society, as well as what society expects from law in answering some questions. The broad analysis of law contained herein takes into consideration connections with other branches of science, from whence we may retrieve some good analogies, hindsight and constructive ideas. It is interesting because we initially depart from a conception of law that connects itself with many other fields of knowledge – for instance, sociology and biology. There are so many questions arising from problems society faces in the natural advancement of civilization, and for each one the analysis becomes twofold: what kind of answer law provides and what kind of answer society expects from law.

The science of law has a lot of undeniable social traits, regardless of whether they are sympathetic to contractarian theory or not. Nevertheless, as science, it holds a set of methods that describes and interprets observed or inferred facts, past or present, and is targeted at testing hypothesis and building theories. At the same time, as morality is a social compass, we also understand law as a science attached to a moral background, especially in respect to human agency. For that, building theories means that the aim of this work is to explain moral constructivism through comprehensive explanations from international law provisions and cases on international human rights courts.

As defined by Durkheim, homo sapiens has become, through evolution and social moral configurations of modern societies, homo duplex, a creature who exists at two levels: as an individual and as part of the larger society. It is paramount to comprehend that nowadays all individuals bond to a social entity as a whole, which has become the purpose of contemporary international community and ideas of cosmopolitism.¹

Therefore, moral reasoning is a cornerstone of this work and we believe that there are several layers of human knowledge that precede reason and guide humans toward true knowledge and good decisions. During this process, Hugo Mercier warns, inference comes first, then intuitions, then intuitions about representations, then intuition about reasons, then, finally, reason.² The rationality developed here goes through this very humane process of using reason to justify ideas and opinions, starting at data-gathering observations and predictions based on international law provisions and international human rights case law and moving on to draw my own conclusions in support of the theory to be built.

Only through communicative action may civilization ascend to new levels of social enhancement and expansion of law as a moral instrument, while authorizing the democratic debate on values and providing accurate answers to real social problems. The diversity of our opinions arises not from the fact that some of us are more reasonable than others, but solely because we have different ways of directing our thoughts and do not take into account the same things. It is not enough to have a good soul; you must be able to use it righteously. The greatest minds are capable of the greatest vices, as well as the greatest virtues.³

1 Cited by Jonathan Haidt, The Righteous Mind: Why good people are divided by politics and religion 225 (2012).

2 Hugo Mercier and Dan Sperber, The Enigma of Reason 05–06 (2017).

3 René Descartes, Discurso do Método, in Obras Escolhidas 39, 41 (1973).

Reason can be manipulated to explain or justify decisions already made and beliefs already held. This is a retrospective use of reason. On the other hand, sometimes reason is used for arguments in favor of new decisions or new beliefs. This is a prospective use of reason. Yet, when reason is used prospectively, it may be to answer an unresolved question, or to convince others of an opinion one already has. The former is inquisitive reasoning, while the latter is argumentative, or communicative, reasoning. In the production of reasons to convince others, the same reasons have both retrospective and prospective relevance. Furthermore, this work seeks to understand an argumentative kind of prospective reason, since the arguments are made in favor of new decisions and beliefs, and the aim of this argumentative exercise is to convince readers of the author’s opinion about the matter, based on both the retrospective and prospective element.

To connect the dots, I combine both theoretical and pragmatic rationales. There are a lot of theories from doctrines, and just as many theories from judicial precedents on real cases. One of the most intriguing sides of law is how it changes and reacts to extreme situations, crises and emergencies that significantly challenge a great part of – or the entirety of – mankind. The different frames of law for peacetime and crisis often collide, and usually new lessons come out of it to shape a new understanding of the law operability.

The main objective of this work is to establish a deductive moral reasoning on situations of armed conflicts regulated by international law wherein targeting civilians becomes one of the most disturbing concerns for our morality of law and the use of it. The ideas developed here aim to inspire the reflective use of international law as a whole, combining especially humanitarian law and human rights law branches and their mutual relationship. Thus, the deduction method adopted here comes from observation of what international courts are testing daily in real cases where some observational and experimental truths are realized with axiomatic weight.

As a researcher, my goal is to shine a critical light on the prevailing understanding of the morality of law in order to promote an alternative containing intellectual honesty and humility, while hopefully representing a good use of reasoning. Constructing a theory requires an analytical statement with elements ranging from technical knowledge to metascientific knowledge. The former is informative and useful to our routine, while the latter builds upon concepts to construct new ideas, a technique often applied in dissertations. Therefore, this work combines some personal convictions on morality in human rights law and its interplay with other areas also covered by law. One thing that is very sensitive in lessons of hermeneutics is the importance of the interpreter’s history and background in the application and insights of the law.

As observed by Michael Shermer, several decades of research in cognitive psychology has shown we are not the rationally calculating beings we would like to think we are. Conversely, we are immensely driven by our passions, blinded by our biases and moved by our moral beliefs. Reason is part of our cognitive structure and, once its capacities are in place to deduce, all data available can be put to use in analyzing problems where the objects and time elements of the reasoning process are interchangeable. This interchangeability is what enables us to adopt the perspective of another moral agent and enriches the cognitive architecture of moral reasoning.⁴

Justice is a very broad concept and it contains multiple meanings and manifestations. The most important feature in the pursuit of justice is to rationalize a reasonable theory of action. Therefore, my personal origins in South America, where discussions about law are more theoretical than pragmatic, is undeniably significant. The way law is taught in Brazilian universities is very different from the US model of learning. First, Brazil has a lineage of civil law and the strong influence of the Catholic Church in state and social politics. We’ve inherited a strong tradition of hermeneutics, which gives our civil law traditions and legal rigidity (dura lex sed lex) some flexibility, with the best resemblance of justice possible.

Second, moral values and human dignity are very important elements in the development and interpretation of law in Brazil, even while revelations of empiric hypocrisy arise every day in our society. Personally, I am agnostic, but I took a lot of moral lessons from my Catholic military father and my protestant geneticist mother. While studying in military school my whole youth and taking theology classes in parallel with law classes, I maintained my agnosticism and nurtured virtues of goodness and altruism with deep roots in Christianity, even with respect to animals, whose entitlement to basic rights I enthusiastically defend (I am a vegetarian in order to save animals’ lives).

All this background certainly influences the way I think and the way I write. Diversity of background and thinking is something that American universities are used to embracing, which is one of the reasons I sought education abroad. The American inputs have helped my personal and professional growth, and in the same way I hope my inputs from this work might be part of literary materials that touch other curious souls interested in some different and plural landscape regarding the usage of law.

4 Michael Shermer, The Moral Arc: how science makes us better people 16–17 (2015). In the same sense, Ronald Dworkin, Justice for Hedgehogs 108 (2011).

That being said, the construction of this work departs from an overall vision of international law and the new design in international society from the second half of last century onwards. The promulgation of core values in human rights, a whole international system centered in human dignity instead of state interests, and the method employed to govern all these elements toward a brand-new threshold of international law and international community, are new traits that remind us that a contemporary international framework conveys high moral standards and makes mankind morally better. Some characteristics make intimate connections with the purpose of the final idea, which is a legal and moral evaluation of targeting civilians in situations of armed conflict where emergency is the reality.

Besides the proliferation of new international actors and the decentralization and universalization of international society, the legal codification process and appearance of international courts – mainly human rights courts – has brought a great shift in international values and legal framework. A very interesting phenomenon we are able to point out is the leading role played by the judicial decision-making process in defining legal contours of international law. Associated with the vertical hierarchy structure of the international legal system and several primary sources of law, the Vienna Convention and International Court of Justice (ICJ) Statute try to bring harmony and integrity to the international legal order when establishing guidelines and interpretation for the application of law.

Notwithstanding, international courts follow the good intentions of promoting humanity’s core values and implementing the dynamic and ductile elements of legal provisions semantic densification into the law in order to create an alternative body of legal source that, in practice, becomes the primary source of international law. In addition, we have the opportunity to explain all the paths that human rights law has gone along, from original values to the configuration of moral reasoning, which generates a very strong conception of law, both statutorily and morally. The same proliferation of values and plurality has given human rights some moral quandaries that international courts have been settling case by case. In this regard, differences of interpretation and application of human rights provisions can be seen throughout the decisions of the Inter-American and European Courts.

By the same token, the law of war takes into account the moral component of humanity while documents are drafted to humanize the horrors of war, and a good amount of international legislation also regulates civilian immunity and care, recommending the nominal replacement of the law of war for international humanitarian law. Some international obligations upon civilians are bound in international law that demands heed is paid to principles of distinction, necessity, proportionality and, most of all, humanity. Nevertheless, civilians continue to experience the hellishness of hostilities all over the globe while international courts expound new comprehension regarding mutual applications of international humanitarian law and human rights law, setting up an eventual collision between each specific provision that will be solved by lex specialis criteria of the former upon the latter.

At the beginning of this century a new form of combat emerged that astonished and alarmed the international community. New terrorism does not comply with any humanitarian or human rights law, and is characterized by acts of shocking cowardice, evilness and cruelty, without value or distinction among their victims. International law, in response, progressively shapes its jurisprudence to try to overcome the evil, step by step, and restore peace and community welfare. During such process, some precedents mutate from incident to incident and worrisome considerations appear to guide a rationale that points to the logic of how international organisms and subjects respond to challenges and threats to collective survival and flourishing.

Focusing mainly on the mutual interplay between international humanitarian law and human rights law, I establish some foregrounds from which I develop thoughts on the matter. In an attempt to organize the ideas chronologically, we envision three waves of international law comprehension. The first is the official merger between international humanitarian law and human rights law, which, until that moment, were both considered two opposite branches of law. Despite placing international humanitarian law as lex specialis over human rights law, the compatibility between them was formally recognized. Second, human moral dignity was pushed to the centre of the interwoven relationship, interfering in acts of judgement performed during situations of armed conflict. Finally, in the third wave, we examine human moral dignity and some important human rights law provisions and considerations drawn from the relationship, which initially happened in Europe, where the effects of the fight against global terror have been felt.

Regarding this third stage, I develop a critical analysis that disagrees with the rationale employed while agreeing with the overall conclusion. Basically, I scientifically and argumentatively uphold a theory that promotes the same outcome and final understanding but with different justifications. Believing I am able to present convincing arguments, the idea is to develop a creative theory of action to change the moral overview on targeting civilians as a side effect in armed conflict situations. Taking into account all relevant international humanitarian law provisions, human rights morality, and the combination of both within the recent understanding of their mutual interplay (where not even the formal claim of derogation on human rights has to be fulfilled), we boldly present an alternative solution which complies with legal morality and rationality toward the act of targeting civilians.

The scope of the analysis of this work is narrowly related to targeting civilians in armed conflict situations, although the rationale adopted can be applied in different cases where factual analogies might be encountered. Nevertheless, the situation under the lens is the action of targeting civilians during arm...