The idea of human rights and the image of the warrior

It is one thing to argue for the complementarity of human rights and humanitarian law and advocate the increased integration of the language, law and policy of human rights into the law of armed conflict; effectively putting it in practice is a different challenge. “The difficult task, for both theory and practice,” it has rightly been said, “is to develop – case by case and within a more general scheme – criteria for deciding how the two regimes relate to each other when they overlap.” Calls to move beyond debating the applicability of human rights in armed conflict to effectively apply them resound ever louder. What has been considered at length from a theoretical point of view has only partly been translated to operational realities: “[w]hilst all this is of great interest to academics, it does not assist the soldier on the ground.” Even those who accept, as a matter of principle, that human rights apply extra-territorially and complementarily with humanitarian law (whether within or without the principle of lex specialis), fear that this may fail in the operationalization.

A closer analysis of these concerns reveals two main sets of arguments: one is related to the perceived incompatibility of human rights with the ethos of the warrior and his self-perception, knowledge and training, while the other has to do with the fear that more human rights in armed conflict may equal more protection for civilians as well as more risks for the soldiers on the battlefield, as well as in subsequent court proceedings for alleged violations of the law.