Editor's note: This article is adapted from remarks at a workshop hosted by DAWN, "Human Rights Go to War," that was co-sponsored by the Schell Center for International Human Rights at Yale Law School.
The alternative to war constrained by the laws of armed conflict, or international humanitarian law, is what is known as total war—war fought without any effort to minimize harm to civilians; indeed, war fought to maximize civilian harm as a deliberate strategy. War is ugly, but total war is worse. That's the way, for example, that Russian and Syrian forces fought in Syria, and how Russian forces are now fighting in Ukraine. The civilian toll can be enormous.
So while there is no doubt that aggression should be opposed, should an organization like Human Rights Watch, as it seeks to uphold the Geneva Conventions and other laws of war, also address the crime of aggression? Given the practical difficulty of doing both, Human Rights Watch prioritizes upholding international humanitarian law, because of its demonstrated importance in saving lives amid armed conflict. We leave it to others to oppose aggression.
Fortunately, while violations of the laws of war are frequent, overt abandonment of international humanitarian law is less common. Many militaries purport to be guided by the laws of armed conflict, and the consequence is substantially less civilian suffering when war does break out. Given the resulting horror of unfettered war, one should be reluctant to abandon these life-saving norms on the unproven theory that upholding international humanitarian law somehow makes war more likely.
The alternative to war constrained by international humanitarian law is total war—war fought without any effort to minimize harm to civilians; indeed, war fought to maximize civilian harm as a deliberate strategy.
- Ken Roth
Aggression can underlie war crimes, and so might be understood as a root cause, although even a "defender" can still commit war crimes. In any case, both attacking root causes and curbing the war crimes themselves are laudable endeavors, leaving aside the question of who is best placed to pursue each. The one does not preclude the other.
International humanitarian law can be insufficient. Under its rules, many people can die "legally"—such as opposing combatants who can be targeted, or civilians who die as a collateral consequence of an otherwise lawful attack. But to abandon international humanitarian law because it doesn't avoid all death in time of war is to make the perfect the enemy of the good.
We should certainly strive to broaden the protection of international humanitarian law. Human Rights Watch has done this, for example, by helping to secure treaties that ban as indiscriminate attacks the use of antipersonnel landmines and cluster munitions, and declarations against the use of schools for military purposes and the use of explosives with wide-area effects in populated and urban areas. Similarly, we have pushed, in certain circumstances, for the application of more protective policing rules rather than the rules of war. But abandoning or deprioritizing international humanitarian law because it is imperfect would encourage recourse to total war.
The original reason that Human Rights Watch eschewed commentary on the crime of aggression was because of our sense that it would compromise our neutrality with respect to the reasons that governments go to war. That neutrality, we believe, is important for maximizing the possibility that our investigations of violations of international humanitarian law by all sides in a conflict will be heard and heeded—that they will not be rejected as partisan criticism.
Neutrality also provides a modicum of protection for our researchers in the field. The Ford Foundation argued in Human Rights Watch's early days that we and other human rights groups should protect our researchers by showing solidarity with rebel groups and focusing exclusively on governmental violations under a human rights framework, rather than one of international humanitarian law that applies to all sides in an armed conflict.
We rejected that approach because rebel groups can commit atrocities worthy of being addressed, and because a human rights framework is far less specific than international humanitarian law about the steps required in war to protect civilians. Instead, we opted to try to protect our staff by adopting the neutrality exercised by the International Committee of the Red Cross. Maintaining that neutrality was all the more important given that, unlike the ICRC's confidential representations, Human Rights Watch speaks publicly.
To abandon international humanitarian law because it doesn't avoid all death in time of war is to make the perfect the enemy of the good.
- Ken Roth
Among the other reasons that Human Rights Watch avoids the issue of aggression is because it is not well suited to our methodology. The organization has influence because we are able to base our judgments on careful, objective fact-finding, which we can introduce into the public domain to affect relevant policy debates. But the crime of aggression often reflects political judgments that our methodology is not designed to make. Consider the endless disputes about who the aggressor is in Tigray in Ethiopia, or the eastern Democratic Republic of Congo, or Yemen, or Israel-Palestine. Even on Ukraine, much of the world takes a different view from the prevailing Western one. And the issue is more complicated still if the question isn't who started a war but who escalated or continued it.
Moreover, if we are going to press governments not to go to war, we would also need to press them to stop fighting, yet the timing and conditions for a cease-fire tend to be highly political judgments. For example, should the Ukrainian government accept a possible cease-fire based on the loss of a significant slice of its territory, or should it insist as a precondition on a Russian withdrawal to the lines at the time of the invasion on Feb. 24, 2022, or even those before Russia's 2014 seizure of Crimea and parts of the Donbas? Human Rights Watch has no special capacity to make these judgments because they are political, not fact-based applications of human rights principles or international humanitarian law.
Aggression is not the only issue for which we exercise such restraint. Human Rights Watch also avoids opining on the right to self-determination, even though it is centrally featured in both of the U.N.'s international covenants—the International Covenant on Economic Social and Cultural Rights, and the International Covenant on Civil and Political Rights—because there is no principled way to determine what the relevant "self" is.
The laws of war require judgment calls, too—such as the issue of whether an attack was disproportionate. But Human Rights Watch avoids condemning "close call" violations. We reserve our voice for clear violations because those are the only ones for which we can generate significant pressure for change.
Our voice is respected not just in the abstract but because we are careful to speak only in accordance with our methodology of relying on the fact-based application of human rights principles. We diminish that respect when we deviate from that methodology and become just another progressive talking head.
Finally, it has been suggested that Human Rights Watch doesn't oppose aggression to stay in the good graces of powerful governments, specifically the United States. Yet Human Rights Watch devotes enormous energy to publicly and firmly criticizing violations of international human rights and humanitarian law by the U.S. government, as well as elements of its foreign policy that ignore human rights concerns. From virtually its beginning, Human Rights Watch has sought to engage with the U.S. government not by tempering our criticisms but by grounding them firmly in fact and principle. Why, after decades of such criticisms and condemnations, would we suddenly pull our punches on the crime of aggression?
Human Rights Watch is doing what we do best: in war, applying international humanitarian law, and leaving it to others to pursue the crime of aggression. Yes, the laws of armed conflict provide a powerful moral framework for assessing the means and methods of war. That has been true since the key international humanitarian law treaties today were adopted in 1949 and 1977. Human Rights Watch in its initial incarnation was founded in 1978 and began to apply international humanitarian law in its research and advocacy only in the mid-1980s.
Nothing prevents other human rights organizations from similarly developing the crime of aggression as a moral framework. In no other field would someone claim that the defense of rights precludes the development of such a political movement. We encourage others to take on that task, but at Human Rights Watch, we plan to stick with our proven contribution to saving lives in time of war.