With the rise of transnational insurgencies, violent extremism, terrorism, and wars against terrorism, the distinction between peacetime and wartime has begun to break down. It stands to reason, therefore, that so too should the distinction between the human rights laws that govern behavior in peacetime and international humanitarian law, which purports to constrain and limit the conduct of war. In this important and insightful new book, Thomas W. Smith argues that human rights should not end at the water’s edge when armed conflict breaks out. The human rights of civilians endure during wartime, continue to impose obligations upon combatants, and should be enforced by judicial institutions.

This book is part empirical account of how human rights are being increasingly recognized in situations of armed conflict, and part normative argument as to why this ought to be the case. The empirical argument is advanced through detailed examinations of the U.S. war and occupation in Iraq and of Israel’s wars in Gaza between 2008 and 2014. Each of these studies highlights violations of human rights committed against civilians by the combatants, emphasizes the inadequacy of international humanitarian law, and demonstrates the relevance and utility of human rights. In particular, these chapters explore how traditional humanitarian law allows combatants to blame collateral damage on their opponents (because, for example, they situated military targets in civilian locales) whereas human rights law grants no such exemptions—combatants must fulfill their obligation to respect human rights irrespective of what enemy combatants do.

After several years of painful experience in Iraq, the United States finally established a strategy for minimizing civilian casualties, but even then continued to see civilian protection as a means (to winning hearts and minds) rather than as an end in itself as demanded by human rights law. Ultimately, Smith concludes, the United States found it easier to decapitate the Iraqi regime than to satisfy the rights of its peoples (p. 106). In relation to Gaza, Smith shows how the Israeli courts have begun to extend human rights considerations into their deliberations on the conduct of war. The principal positive effect of this, he argues with the clear sense of pragmatism one needs in the study of war, was not necessarily the machinations of the court proceedings themselves but all the things that went into making this extension of law possible. This was especially the case concerning the documenting, analyzing, and publicizing of patterns of human rights abuse that may not have been identified by the application of international humanitarian law. While this may not have tempered the behavior of combatants, it at least illuminated the depth of the loss inflicted by them. What is more, behind this effort lay a network of human rights organizations, dedicated to exposing violations, and to which the Israeli government and Hamas had to respond in some way.

The book’s principal normative claim is that human rights are superior to humanitarian law and ought to be upheld in war. Combatants should be expected not only to follow the laws of war but also to fulfill their obligation to respect the rights of civilians. Whereas humanitarian law defines civilians by what they are not (“noncombatants”) and extends minimal protections to them, human rights are anchored on a positive definition of the civilian as an individual to whom protections are owed by right, not granted by grace or favor. Human rights, Smith maintains, spring from what it is to be human, whereas humanitarian law owes itself to the exigencies of war. As such, human rights do four things “uniquely well” (p. 206). First, they draw attention to the civilian experience of war, bringing into focus not just the immediate impact of war but its long-term effects as well. Second, they highlight how even lawful attacks can terrorize civilian populations, raising “basic questions about the militarization of societies and economies (p. 206). Third, they promote accountability for indiscriminate (and, for that matter, disproportionate) war policies. Fourth, they expose some of the hypocrisies of war policies and especially in decision making about how violence is used (p. 206).

Beyond these generic advantages, the application of human rights law in wartime has also brought with it specific advances in the regulation of armed conflict. Not least, “a rights framework stresses individual criminal responsibility in place of a corporate or bureaucratic model of blame” (p. 149), such that political and military leaders responsible for grievous rights violations face the real possibility of prosecution. There is potential good news for the victims of abuses here, too, since criminal responsibility implies restitution (compensation) and even healing (psychological support).

Yet there are downside risks that haunt Smith’s approach to the regulation of war. The first relates to moral and legal asymmetry. “Lawfare,” as it is sometimes called, risks forcing one side to fight with its arms tied behind its back, while the other side brazenly flouts the law. This might make it more difficult for the side that does more to respect rights to prevail in battle, producing the worst of all outcomes—victory for the side that does not. There is a tension at the heart of military strategy between the need to fight justly/lawfully and the need to win. Even the less restrictive laws of war fly out the window so often because the importance attached to winning is so great. This gets to a second problem which is that setting unrealistic expectations about conduct in war could prove counterproductive, pushing combatants to eschew the whole logic of legal restraint because of their inability to comply with the law. Recall that indiscriminate warfare is more often the weapon of the weak than of the strong.

This brings us to another debating point, which is whether the picture presented by Smith—laced as it is with caveats and fine-grained argument—is too optimistic. For many observers, the contemporary picture is much gloomier in that rather than witnessing the extension of human rights into armed conflict, what we are actually seeing is a full-scale retreat from some of the most basic norms of war. These are the critical questions on which debates about this book will turn, and our understanding of the issues will be much enhanced by them.

Whether one is optimistic or gloomy about contemporary trends, there is no doubting the timeliness and insightfulness of Human Rights and War Through Civilian Eyes. Smith is right to highlight the breaking down of distinctions between war and peace, and he paints a compelling and at times unnerving account of the differences between human rights law and international humanitarian law, which shows just how far we have to go. In particular, though, this book—as its title suggests—sees war through civilian eyes and offers a radical new way of thinking about legal and moral protections in war, one that treats civilians as empowered rights bearers rather than as adjuncts to the necessities of war. For that alone, it is a welcome and important contribution to the field.