When I finally admitted to myself in college that I was not going to be a groundbreaking female biomedical engineer and that I would not end up in medical school (the fainting episode that I tried so hard to deny during my high school "shadow your future profession" week that took me to the pediatric ICU in Texas should have been my first glaring clue), I decided I wanted to be a lawyer. Not just any lawyer mind you, I had to be a lawyer that was going to do something to help people, and not just help them divide their assets or fight over children (though to be honest those jobs are equally as taxing and draining on the soul but maybe more financially rewarding). At that time, at that turning point in a 19 year-old's life as it may have been, I used the phrases human rights lawyer and advocate of humanitarian law interchangeably as a way to describe my future aspirations. It wasn't until a few years later that I learned there is a fundamentally important distinction between the two, a distinction that may in the future wedge the two further and further apart.
Both come not without controversy, perhaps mostly directed at human rights law most cynically described as a sort of flimsy and lofty set of rights and entitlements that are supposed to yield a better life. Human rights describe those things to which every person on this earth should equally be able to seek or achieve.... a fair trial, freedom of speech, freedom to exercise religion (not controversial in western countries), access to clean water, access to education, (more controversial in countries like the united states).
Humanitarian law governs the treatment of hors de combat or those not taking up arms in armed conflict. During the late 19th and 20th centuries there was a recognition of the barbarity of war and the damage that it wreaks on all portions of society, not just those in a combat zone. The Kellogg-Briand pact attempted to outlaw war in general, but as the Greek gods predicted, conflict is part of the human world as run by gods. What gods you ask? Well for the Greeks it was their 12 Olympian gods, but take your pick these days and the God of Christianity, Judaism or Islam would probably concur. Instead of banning war, there are now Hague laws and Geneva laws that govern the means and methods of warfare, and the treatment of persons involved (intentionally or unintentionally) in combat activities. These are not lofty "be the best that you can be laws". An Australian humanitarian lawyer Helen Durham said it in a way that has stuck with me: the laws of war are "pragmatic documents which relate to bare survival during the most horrific condition humans can manufacture - armed conflict". (Helen Durham wrote a fascinating article on the Athena/Ares modes of warfare for the Melbourne Journal of Int'l Law in 2007, to which I credit my thinking for this entry). It is these laws of war that allow killing with impunity.
The right to life is at the heart of human rights law and the thought that killing another can and legally will result in impunity juxtaposes the two regimes of law and begs the question, can they be reconciled? Arguably in some aspects yes, the laws of war set out restrictions and narrow circumstances in which taking the life of a combatant is legal. Laws of war permit killing under certain conditions only; indiscriminate killing with weapons yielding excessive harm are banned. The rules and the following of the rules is what makes human rights law marginally compatible with humanitarian law, while still recognising that there are aspects of both making them fundamentally at odds.
However, in our world today, states choose to selectively apply the universally ratified Geneva Conventions. Somehow there is a belief that a legitimate or a just conflict privileges the wagers to hold themselves to a less restrictive legal regime. Is that right? Is it right for global precedent to thumb ones nose at laws that make the most banal instances of human existence minimally protected? To me (albeit a person on the outside of conflict zones and outside the rooms where orders of attack are launched) it seems detrimental to any sort of international harmony or just shear human co-existence (harmony/peace is likely an unascertainable and inadequate aspiration for the global community), to draw different rules for different interventions. After all....who gets to decide what is just, whose measuring stick will be used in judgement?
Human rights law applies at all times, even during armed conflict. Certain aspects of the law are deemed derogable, while others such as the right to life and right to be free from torture are absolute. Humanitarian law applies in times of armed conflict, modernly this has been made to encompass both international and non-international conflict. When I changed career trajectories from doctor-who-would-save-people-who-were-ailing to lawyer-who-wanted-to-save-people-from-suffering-and-help-achieve-a-more-dignified-life, the spirit of altruism stayed. I didn't understand the difference between human rights and humanitarian issues, I didn't understand the level of suffering to which people daily endure (I still don't think I can fathom it), but I have a fuzzy understanding of fairness. Human rights law and humanitarian law as overlapping concepts and as a means of protection bring to light a crucial notion of fairness: how to find a fair balance between military necessity and principles of humanity.
We live in a world where states choose to selectively place themselves under the ambit of international law. International humanitarian law is neither applied succinctly nor neutrally in any conflict. But it's universal law, why not??? I've never been a real rule-breaker (the one time I missed curfew by 5 minutes I got grounded) so maybe it's easy for me to say follow the freaking rules! If a state signs up to a set of rules and laws....follow them! Don't personally decide what is just, don't make up rules of impunity for one group and actively prosecute others. If the world continues to selectively fashion itself in that way, then human rights law and the eventual incarnation of humanitarian law will be forever at odds instead of both protecting the human being, however small that protection may in fact be. If human rights law and humanitarian law were meant to be selectively incorporated, they would have been called "selections for states to choose from at their whim and convenience" and not "law".
For all those rule-benders out there....bending rules may be fine, but when you bend the rules and that bending infringes on my rights and legal protections as a person, you've bent too far. Your rights are not more important than mine, or more important than those of a woman in Bosnia, a man in Burundi, or a child in East Timor.
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