Critical international lawyers have been, at best, ambivalent and, at worst, suspicious of human rights. There are many reasons for this tense relationship, including human rights’ presumed affinity with neoliberalism and Western cultural chauvinism. From the 1990s onwards, another reason was added to this litany of biases: the convergence between human rights and imperialist war.
This unholy alliance took many forms. Major Western human rights organizations aligned themselves with US foreign policy and applauded—even demanded—the use of force to protect human rights. Scholars and politicians constructed legal and political justifications for interventionism that amounted to what Anne Orford describes as “muscular humanitarianism”—a singular focus on military force by international actors as the only way to protect populations from gross human rights violations. Human rights scholars, tribunals, and monitoring bodies also insisted that human rights law is applicable to military hostilities and argued that this applicability would lead to more humane outcomes than the application of international humanitarian law alone.
Not everyone was convinced. Samuel Moyn argued that this humanization of war led to its prolongation, as the promise of humane military campaigns and occupations removed legal and political argumentative barriers against war. Naz K. Modirzadeh was skeptical that any real humanization occurred in the first place. In her practice-informed account, she contended that the only advantage of applying human rights in the context of war was the possibility of bringing claims in front of international courts after violations had already occurred rather than safeguarding better outcomes for civilians on the ground. She also posited that by demanding that occupiers comply with human rights law, the argument that human rights law applies in the context of occupation undermines the distinction between occupation and sovereignty, and international law’s expectation that occupation is a short-lived and inherently hostile situation.
All this is to say that even though militaries have long thought of suspected human rights advocates as idealistic pacifists, many (actual) pacifists and (genuine) anti-imperialists have long thought human rights advocates were rather too invested in military adventurism.
Human rights after Gaza
It should then come as somewhat of a surprise that at least some human rights scholars, advocates, and practitioners have been at the forefront of demanding a ceasefire in Gaza since October 2023. Indeed, one of the earliest calls for a ceasefire came on November 16, 2023, when numerous UN special rapporteurs made it clear that humanitarian concerns and human rights claims in Gaza cannot be addressed as long as Israel’s military campaign continues. This positive connection between peace and human rights was central to South Africa’s repeated demands that the ICJ order Israel to cease its military operations as the only viable way of protecting Palestinians’ rights under the Genocide Convention until the Court rules on the merits of its case against Israel. The ICJ’s most recent order concerning Rafah has been rightly criticized for its (almost certainly intentional) ambiguity on this front. Consequently, we still do not know whether this understanding that positively links human rights to peace—or, at least, to the cessation of war—will obtain the seal of approval of a mainstream international legal institution.
However, the reversal of the 1990s and early 2000s framework is hard to miss: calls for imperial powers to use armed force in order to stop genocide and other mass atrocities have flipped, placing war as the essential backdrop against which mass violations of human rights unfold.
This form of human rights scholarship, advocacy, and litigation is alert to “root causes.” It sees, say, starvation in Gaza not as an aberration, an isolated violation of individual rights, or an ahistorical crisis, but as a culmination of settler colonial practices that have systematically destroyed Palestinian food systems and food sovereignty, with an eye to bringing about the destruction of Palestinians as a people—to undo their relationship of belonging to the land of Palestine.
UN special rapporteur on the right to food and Third World approaches to international law (TWAIL) scholar Michael Fakhri captured this reality when condemning the long-standing practice of settlers and Israeli authorities of targeting olive trees throughout Palestine and, in Gaza, targeting fishermen: “The destruction of olive trees isn’t just an issue of food or commerce, it’s at the core of what it means to be Palestinian and their relationship to the land, just as the sea is central to what it means to be from Gaza.” Seen in this light, Israel’s war against Palestine cannot be “humanized” through a more faithful application of IHL or human rights law. Rather, the end of this war is the minimum precondition for Palestinians to meaningfully enjoy their basic socio-economic and civil-political rights.
An anti-war human rights paradigm?
It is no coincidence that TWAIL scholars have been at the forefront of this proactive, institutionally engaged effort to redefine the relationship between war and human rights. However, their involvement does not mean that they will successfully transform their discipline’s approach or alter material outcomes. The reluctance of the ICJ to order a ceasefire in clear and unequivocal terms is a testament to the difficulties this project faces.
Nevertheless, progressive defenders and critics of human rights alike ought to acknowledge that human rights advocacy in regard to Gaza exemplifies a shift (a decade in the making) that is significant both for how we conceptualize human rights as an object of study and as a field of struggle. In that sense, my illustration of this emerging trend of anti-war human rights is not yet another exercise in critical redemption—an effort to re-authorize the field by reference to the vague possibility of its radicalization. After all, it is imaginable that this new understanding will never become majoritarian within the movement, within legal scholarship, or within international institutions. It is also totally imaginable that creating a distance—let alone open opposition—between human rights and the foreign policy of major powers will lead to the decline of the field’s soft power.
Far from being a redemptive move, my claim is that we should treat human rights as a fully secular field: one that is open to political contestation but also one in which political effectiveness is not transcendental but contingent on broader geopolitical shifts. The rise of human rights as a persuasive moral language was the result of concrete historical events, and there is no reason to think that their prominence will persist in today’s altered geopolitical and ideological landscape.
It is an open question whether emerging understandings of human rights that oppose war will weaken the defenders of war or the defenders of human rights. Of course, the fact that we do not yet have an answer does not mean that we cannot have “hope in a TWAIL register.”
I would like to thank Ben Golden for his helpful comments and Jess Whyte for the long conversations that have shaped my thinking on this matter.