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The European Union should bind itself to a more exacting standard for the use of force by explicitly mandating that any use of military force by member states be subject to international human rights.
David Rodin argues that at present, the use of force by states is governed by the laws of armed conflict. These laws permit states to engage in defensive wars against aggression, but they also create an extraordinary permission for individual soldiers to kill enemy combatants – even if the engagement in which they are fighting is unlawful or unjust.
The European Union is, at its deepest foundation, a project of peace. The Union’s long-term success – and, indeed, survival – will depend chiefly on its ability to deliver a basis for peaceful and secure relations among the states on the Continent and ultimately on a global level.
The EU has transformed the European security context. Over the past five centuries, Europe has been the site of savage interstate conflict. At the same time, Europe was a massive exporter of global insecurity, first through European colonialism, then through the two world wars, both of which were incubated in Europe. The most profound achievement of the EU has been to establish an institutional framework for peaceful, rule-governed relations between European states. Yet several European states, notably Britain and France, remain frequent and enthusiastic users of military force abroad, sometimes in questionable legal and ethical circumstances. Moreover, as the United States retreats from its role as guarantor of global security, Europe will be required to take more responsibility for Continental and global peace keeping and peace making. This will likely force the EU to build up a military capacity more commensurate with its status as the world’s largest economic bloc – whether or not by developing the standing EU army recommended by Cécile Fabre in this volume. What will be the basis for the development and use of this European military capacity? How will the EU provide effective security guarantees, both to its own citizens and to neighbouring states that may fear the return of European military adventurism? How can the EU provide the foundations for effective global peace and security? Proposal I hold that the EU should clarify the basis for the use of armed force by member states in a legally binding way. In particular, European law should specify that only the protection of human rights can justify the use of armed force, and that any use of force by a member state must be consistent with the full protections afforded by human rights for both combatants and affected civilian populations. This proposal would create a new legal obligation congruent with and additional to the obligations of international humanitarian law. It would provide the fundamental legal standard for the deployment of armed forces of member states. By the same token, it would create a set of enforceable standards on how member-state militaries are to be configured, armed, and trained, as well as on broader matters of defence policy and diplomacy.
Need Existing international law is an uncomfortable amalgam of international humanitarian law (IHL), which provides fundamental protections to individual human beings irrespective of citizenship, and the laws of armed conflict (LOAC), which guarantee the sovereign right of states to defend themselves with armed force and provides derivative protections to citizens and combatants in times of war. Conflicts between these two bodies of law abound. In cases of humanitarian intervention against a state engaged in the massacre of its own people, there is a direct conflict between the human rights of victims and the protection afforded to the sovereignty of states. LOAC recognises legal impunity for ordinary soldiers to participate in an unjust war even though they kill and harm enemy combatants who have done nothing that would merit their losing the right to life. Increasingly, situations of conflict occupy a fluid and amorphous state between civil unrest and full-scale war as traditionally conceived. This creates ambiguity as to when the provisions of LOAC apply and when the more rigorous standards of IHL can be said to fully apply. By explicitly adopting human rights as the sole basis of the use of force by member states, the EU would create clarity where there is currently ambiguity, bind itself to what will in most circumstances be a more stringent standard for military action, and create a number of other beneficial effects, as discussed below.
Create a firm foundation for states to ensure the security of citizens Human rights provisions create a firm basis for governments to protect the rights of citizens. On human rights grounds, those who unjustly attack the fundamental rights of others individually or collectively are liable to defensive action – including lethal force when this is both necessary and proportionate. Thus, human rights can provide an appropriate basis for effective defence of citizens. Indeed, by focusing on what fundamentally requires protection (the rights of citizens) rather than the proximate means to that end (state sovereignty), human rights standards can provide the basis of a more targeted and ultimately more effective defence policy.
More-limited military operations The permission to use defensive force under human rights provisions is deep, but also narrow and tightly constrained. The permission to use force under human rights is strictly limited to the targeting of those who are responsible for posing an unjust threat to the fundamental rights of others. This creates a much more circumscribed basis for the use of military force. First, military force can never be deployed for the pursuit of generally stated “interests”, whether national or European, or to forestall more distant and amorphous threats. For example, a human rights provision would have made it much more difficult to establish a viable justification for the invasion of Iraq in 2003 on the basis of its (supposed) possession of nuclear weapons given that there was no evidence of any imminent threat from those weapons to any other state. Second, soldiers would be entitled to expect their states to give due regard to their rights to safety and security even on the battlefield. Several EU states have recently deployed soldiers with inadequate support or equipment, thus exposing them to elevated risk. Recognising that soldiers, too, are protected by human rights would provide recourse in cases such as this.
Third, on human rights grounds, enemy combatants would only be viewed as liable to attack when they are responsible for posing a current, unjust threat. This would require rules of engagement that are more restrictive as well as more closely focused on the ends of military operations, namely, protecting against unjust attacks. It would prevent the wholesale killing of combatants who do not pose a threat, as in the case of the infamous “turkey shoot” of fleeing Iraqi soldiers during the US liberation of Kuwait.
Fourth, it would send a strong signal to other states that Europe’s military capacity is narrowly focused on the defence of rights from unjust attack and will never be used aggressively or to achieve broader ends and interests under the cover of defensive action, thus creating conditions of trust and establishing the basis of security for all.
A more flexible and targeted approach to defence policy If the fundamental criterion for the use of armed force is the protection of human rights rather than the defence of sovereignty, then European states will be free to develop a more flexible and targeted approach to defence. Many current security threats involve criminal activity, transnational terrorism, and covert state action, which fall in the gap between civil security policy (policing) and military policy. By harmonising both civil and military policy under a single normative framework of human rights, European states will have established a flexible, yet principled basis for developing a flexible and targeted set of responses, ranging from traditional policing and intelligence gathering through to forcible operations short of war and, ultimately, through to full war.
Clear basis for humanitarian action An explicit endorsement of human rights as the basis for military policy would also create clarity on the EU’s stance on responding to genocides and other state-generated humanitarian crises. It would create a strong expectation that, in accordance with the principles of the so-called “responsibility to protect”, European militaries would in principle stand ready to intervene in the affairs of another sovereign state to prevent a grave violation of human rights. One might worry that this feature will undermine the claim made above that human rights will limit and circumscribe the legitimate causes for war. Indeed, one might fear that a commitment to human rights as the foundation of military policy will lead to destabilising interventions by European powers. This risk certainly exists. However, failed interventions (e.g. the 2011 intervention in Libya) have owed as much to the neglect of rights as to their observance. Any human rights-based justification for the use of force carries with it a very strong requirement of proportionality – the obligation to honestly assess the likely long-term effects of action and only to proceed if likely costs do not outweigh benefits. In addition, a commitment to human rights creates a strong presumption that any intervening power will provide substantial economic and financial assistance to assist in stabilisation and reconstruction. This did not happen in the case of Libya.
A commitment to international accountability A focus on human rights also entails a commitment to subject friends and enemies alike to strong accountability for their use of military force. European states have been instrumental in setting up the International Criminal Court to prosecute perpetrators of the most heinous international crimes, including war crimes. A European commitment to human rights as the foundation for military action should be taken to imply that if there is plausible evidence that the armed forces of member states have breached the laws of war and have not been held appropriately accountable in domestic courts, then the EU will commit to seeking prosecution under the jurisdiction of the ICC.
A presumption against the possession of nuclear weapons Two further implications of a commitment to ground military policy in human rights may be less obvious. The first is that such a policy would create a strong legal impediment to any use of nuclear weapons or other weapons of mass destruction. Such weapons are intrinsically indiscriminate and, as such, necessarily breach human rights on a massive scale. There is a more complex question as to whether the mere possession of such weapons breeches rights. But it can be strongly argued that the possession of weapons of mass destruction is inconsistent with a human rights-led policy and should therefore be abandoned or phased out over time.
Rights of selective conscientious objection Finally, human rights imply that military force is only permissibly used against persons who are liable to be defensively harmed or killed. As we have already noted, one can only become liable to be killed by engaging in an attack on the rights of others that is unjust. This has an important implication for combatants whose own state is engaged in an aggressive or otherwise unjust war. Such combatants are fighting against an enemy who, in most cases, is simply exercising its legitimate rights of self-defence and therefore has made no unjust attack on anyone. Therefore, they retain their full rights to life, and attacking and killing them is morally wrong even if it is not illegal under LOAC.
What should follow from this? Of course, every combatant state believes – or at least professes – that it is fighting a justified war. If military force, however, can only be justified by fending off an unjust attack, then no war can be just on both sides (and, in fact, many wars are unjustified on both sides). A requirement that the use of military force by EU nations be compatible with human rights would therefore imply two provisions: First, a member state would be expected to be fully transparent with its own soldiers on the factual and legal basis for any planned use of force. Second, if any member of the armed forces believes in good conscience that the campaign or operation that he or she is being asked to join is not morally or legally justified, then they should have the right to exempt themselves from participation without fear of punishment or reprisal.
Conclusion Tying the use of force by member states explicitly to the protections afforded by individual human rights would be a simple and straightforward amendment to the European legal architecture. It would require no new department, no new powers, no new tax or additional resources, and no new organisational form. However, by setting a clear expectation regarding the legal and moral ground for exercising military power, this provision could have a profound effect on the future of the EU, setting it on a course for a more restrained, effective, and just security policy.
On 23 June 2018, David Rodin defended his proposal in the Twelve Stars debate. The main objections are presented below. Rebuttals can be followed in the online debate.
Read up on current initiatives and proposals concerning this topic in our background briefing.