Cambridge, UK – Human rights organisations pride themselves on being impartial, on not taking sides in the conflicts they report on.
On July 31 in Aleppo, when Syrian rebels summarily executed the head of a pro-regime Shabiha militia, Ali Zeineddin al-Berri – and some of his men – there was a chorus of condemnation from Human Rights Watch (HRW), Amnesty International and the UN.
“What it looks like is execution of detainees and if that is the case, that would be a war crime,” said a senior legal advisor for HRW.
To be sure, these same organisations have assiduously investigated the atrocities of the Assad regime.
But what are we to make of the idea that the violence of the regime and that of the rebels should be measured against the same standard? Does it make sense to be impartial about a war?
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Al-Berri was a regime thug who allegedly killed 15 Syrian rebels during a recent truce. Some of the worst massacres of the conflict have been carried out by Shabiha militia. Killing al-Berri may have been simple revenge; or it may have been a calculated message to encourage militiamen to stay home.
Maybe the killing was a mistake. It might convince regime dead-enders that they have no choice but to go down fighting. It certainly generated negative media coverage among the rebels’ supporters in the West.
But for the human rights community, assessing al-Berri’s killing is a legal not a strategic matter. Note the language used by HRW’s lawyer: the Syrian rebels had unlawfully killed a “detainee”.
The Syrian rebels are a collection of different groups, with no clear political direction or command structure. They are fighting a desperate war against a regime that will bomb and massacre its own people to stay in power, and which would prefer to see Syria destroyed than surrender.
The Syrian rebels actually doing the fighting mostly lack training, organisation, and leadership. Needless to say, they have not prioritised hiring lawyers, writing legal codes, and setting up a judiciary. It is unlikely the Syrian opposition has a consistent or enforceable “policy” on “detainees”, whatever statements its campaign spokesmen outside Syria may make.
Yet HRW talks as if the rebels were just like a state. It seeks to hold them to the same standards with respect to discriminating between combatants and civilians, treatment of prisoners and so on.
What bias in human rights talk is revealed in this attempt at impartiality?
Firstly, the laws of war were written by states. There is a systematic bias favouring the official, uniformed armed forces of states. From the point of view of the state, a rebel is at best an “unlawful combatant” or a criminal, at worst a traitor or even a barbarian.
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According to the Geneva Conventions, the definition of a legal combatant is one who carries weapons openly and ideally wears a uniform or distinguishing mark.
When rebels are strong and in control of territory, they can carry weapons openly. To do so in other situations is to surrender one of their few advantages. Had the Free Syrian Army carried weapons openly and worn uniforms when they infiltrated into Damascus and Aleppo, the regime would already be victorious.
From the point of view of these great standards of civilisation – the Geneva Conventions – a Syrian soldier fighting rebels bearing arms is perfectly legal. But the rebels who kill regime officials in their homes are war criminals.
How far would the rebellion against Assad have gotten if every rebel had to identify himself by openly carrying arms, engaging only in “fair fights” with the Syrian Armed Forces?
The problems with human rights talk go deeper.
NATO deploys lawyers en masse and its air forces are meticulous and expert in their targeting. But it could not satisfy HRW in the Libyan campaign. In May, HRW released a report asking NATO to account for 72 “civilian” casualties caused by air strikes. (Even if HRW is entirely correct, 72 dead civilians is a remarkably low price to pay for NATO’s contribution to unseating Gaddafi.)
The definition of a civilian may seem straightforward. In fact, it is a very difficult matter, even in wars between states. Are arms workers civilians? Are soldiers not on duty civilians? Are unwilling conscripts civilians or soldiers? The Geneva Conventions evade the matter. They essentially say that a civilian is anyone who is not a legal combatant, that is, someone who is not carrying arms openly.
In war, the question of carrying weapons openly is a tactical issue and camouflage is a principal military art. Under sustained air attack, Gaddafi’s military did not seek to advertise its “distinguishing marks” as the uniformed armed force of a sovereign state. After the first few days, for example, Libyan commanders did not use military radios or military vehicles. To do so was to invite death from the air from their enemies. After the war, HRW investigators found no evidence of military equipment at bombed out buildings that NATO said were Libyan command and control facilities. They naively assumed in such cases that civilians had been killed.
HRW now demand NATO investigate and account for these deaths. The idea here is that, ideally speaking, every death in war can be clearly adjudicated in legal terms. But given the ambiguity in the core distinction between civilian and combatant how could this ever be so?
The fantasy that matters of right and wrong in war are subject to legal determination creates a bogus position of moral superiority. It is a position occupied by those who believe human rights talk elevates them above the politics of war. They presume an imaginary world in which all war crimes will be investigated and punished, irrespective of who committed them.
Consider in this vein UN Secretary-General Ban Ki-moon’s remark that “Aleppo… is the epicentre of a vicious battle between the Syrian government and those who wish to replace it. The acts of brutality that are being reported may constitute crimes against humanity or war crimes. Such acts must be investigated and the perpetrators held to account.”
By reference to the notion of war crimes, Ban Ki-moon creates a moral equivalence between the murderous regime of Assad and those who are fighting against the odds to defeat him. Whatever the failings of the rebels, and they are many, there is no such equivalence for any right thinking person.
Ban Ki-moon’s comment also implies there will be some grand trial where good and bad, right and wrong, legal and illegal all will be decided.
In the real world, we know that the powerful write the laws and the victors hold the trials.
While HRW and Amnesty issue reports, and UN officials make grand statements, no US or UK official will ever be tried for war crimes in Iraq or for the on-going torture and imprisonment of terrorist suspects.
Human rights talk is a way of evading having to take sides in war and of pretending to be above war. But the only reason we have the UN and the human rights community is because of the victory of the Allies in World War II and of the West in the Cold War.
Perhaps it is time for human rights organisations to dispense with the lawyers and start studying politics and the paradoxes of war.
Tarak Barkawi is Associate Professor in the Department of Politics, New School for Social Research.