 Thank you very much, Johanna. Thank you very much to the Centre for inviting me. It's great to be in such a familiar place and to see so many familiar faces. I've just done what a lot of us lawyers do quite often, which is sign a piece of paper without knowing anything about what it says, but I trust that Anita wouldn't have asked me to sign something that is detrimental. Right, so my topic is the application of human rights law to war. Over the last 20 years or so, both international and national courts have accepted the principle that the application of international human rights law is not limited to peacetime. I have some misgivings about this development, as you can gather from the title of my presentation, but human rights scholars and activists have generally welcomed this change. To set up my concerns, I would like to take a step back from the detail of the case law on the application of human rights law to conflict and reflect on the broader significance of these developments. And in particular, I would like to consider the application of human rights law to wartime together with the distinction between war and peace. These two questions, the war-peace distinction and the application of human rights in war are, in my view, closely intertwined. I will present my analysis in three stages. First, I will discuss the origins of the distinction between war and peace in international law, a distinction which did not arise by accident. It is foundational and it rests on important philosophical considerations. Secondly, I will consider how modern international law is recasting this distinction, mainly as a consequence of the application of human rights law to war. The recasting of the legal distinction between war and peace is happening against the background of important changes in the nature of war, which must also be briefly explored. Thirdly, I will attempt to draw some conclusions on the applications of human rights to war. And I will argue that while in many ways this development is part of the long historical process of humanisation of warfare, it also poses risks, not least to human rights themselves. But there is a jurisprudence constant at this point which supports this principle and I don't think this jurisprudence is going to be overruled anytime soon. So the risks and the problems must be addressed within this new framework. And in some ways what we will have to do is to reinvent the wheel, namely to return to the foundational distinction between war and peace, but in a way that factors in the role of human rights. So let me start with the distinction between war and peace, its origins and significance. In his seminal work on international relations, the French thinker Raymond Daron explained that any jurist or philosopher dealing with war must address a fundamental question. Must international law foresee or exclude the possibility of war? Among those who thought that international law and law in general must by definition exclude the possibility of war was immanuel Kant. War was for Kant the negation of law. The idea of a law of war in Kantian terms is a contradiction. International law is to some extent founded on Kantian premises, as far as international organization is concerned, but not as far as the regulation of war is concerned. When it comes to war, the premises of international law are mainly grossion. So what did grossious have to say? Well, there is an important passage in the Prolegomena to his great book, the Eurebelia package, which summarizes his thinking on war. That's paragraph 16 and he said the following. It is so far from the truth to admit, as some can try, that in war all laws cease, that on the contrary, war must not be undertaken if not in the enforcement of law, nor must it be conducted if not within the bounds of law and faith. De Mostonis said, well, that war is waged against those who cannot be constrained judicially. For wars to be just, they must be executed with no less conscientiousness than is required in judicial proceedings. Paraphrasing class of it, you might say that for grossious, war was the continuation of law through other means. In grossious, as in the medieval just war tradition that reverberates in his writings, peace is the natural condition of humankind. But war, exceptional and regrettable, though it is, is nonetheless subject to law. It is grossious who invented the notion of the state of war as a legal state. Until the changes in the usabellum in the 20th century, this notion was central to international law. When a state manifested an intent to be hostile with another state, animus belli gerendi, whether through an express declaration of war through specific hostile acts or through belliger statements, a state of war was said to obtain between those two countries. The state of war triggered the shift in the applicable law from the law of peace to the law of war. As Marina Manchini has shown in her work on the state of war, although to a large extent rendered obsolete by the changes in the usabellum introduced by the United Nations Charter, this notion is far from disappeared from state practice. But even without the state of war, the post war international legal regulation of war remain grossion for at least two reasons. Firstly, as discussed, international law continues to foresee war and places it and place it under the law rather than treat it as come to that preferred as denigation of law. Secondly, before the challenge of human rights law, the war peace distinction remain foundational. As highlighted by Stephen Neff, the war peace distinction in grossious is linked to another fundamental distinction between what he called primary rights and secondary rights. Now in grossious speak, these terms have a different meaning than in the law state responsibility. For grossious primary rights are those that can be exercised against the actual wrong doer. So if you take action against the person who's stolen your property, that's the exercise of a primary right. And that primary right according to grossious is guaranteed by the natural law. By contrast, secondary rights are exercised against persons other than the actual wrong doer. And the main example of a secondary right is war, or as grossious call it, public war. And that's because in war action is taken against individuals, simply because of their association with an enemy state and not because of any personal responsibility. But the natural law cannot admit of the possibility of persons other than the actual wrong doer incurring any responsibility. And it is for this reason that grossious says the regulation of war has to be found not mainly natural law, but in what he calls volitional law, that is the law created voluntarily by states. Stephen Neff again summarizes the importance of this change. With this distinction between primary and secondary rights, grossious transferred the entire law of war at a stroke from the realm of natural law into that of voluntary law. The effect was to open the way for treating war in a more flexible manner than before, as a man made institution whose rules could be crafted and recrafted as necessary by human beings themselves to serve their own purposes. By subjecting war to law, and in particular to the law created by states, grossious also accomplished another important result. He protected the higher norms embodied in natural law from the phenomenon of war. I will return to this point because one of my criticisms of the application of human rights to war is precisely the higher norms embodied in human rights risk being diminished and corrupted by war. And I think to some extent are already being diminished and corrupted. The best of our ideas must be protected from the worst of our reality. Before looking at how these understandings are being challenged in the present day, let me just say a few more words about another thinker who wrote a few decades after grossious Thomas Hobbes. Contrary to the stereotyped understanding of this philosophy, Hobbes had very little to say about international relations about one paragraph in the Leviathan. But his theory of the state law rested on a completely different assumption from grossious. For Hobbes, the natural condition of humankind is war, it is not peace. And Hobbes also differ from grossious in that he did not think that natural law seized to apply in the state of war, which for grossious for for Hobbes was a state of internal rather than international war. But having said that the national law applied, Hobbes went on to explain this, the laws of nature while immutable and eternal, and I'm quoting from the Leviathan, oblige in foreign internal, that is to say, they bind to a desire they should take place. But in foreign external, that is the putting them in act, not always. So for Hobbes, when he comes to natural rights or human rights, applying to war, an impasse or an aporia, the Hobbes Unaporia about human rights in war is that human rights exist, but they cannot be respected. Now, the issue is not just that there is a discrepancy with between what must be done, what must happen, and what happens for Hobbes to discrepancy is more fundamental. It's between what must happen and what can happen. Necessity normally entails possibility, the impossible should never be necessary. And on some definition of possible, the proposition x is necessary, but impossible is actually logically untenable. Now, I'm not sure if the Hobbes Unaporia, what I've described as the Hobbes Unaporia does entail as much as a logical contradiction. But it certainly points to a very serious problem in the application of human rights to war. And this is a point with which, as we shall see, the jurisprudence of the European Court of Human Rights has also struggled. The question of what to make of human rights, which it says, should apply principle, but cannot be secured in practice in the circumstances of war. But let me now move on to the second part of the analysis, the crisis in this foundational distinction between war and peace, which has emerged over the last 20 years, particularly through the application of human rights to war. In a frequently cited passage, in the opinion of the legality of the use or threat to use nuclear weapons, the International Court of Justice wrote that the protection of the ICPR, and I'm quoting, does not seize in times of war, except by operation of Article 4, the provisional derogation. Now, the ICPR is of course positive, law not natural law, but the theoretical and practical difficulties of applying human rights to war are not all that different from the difficulties with which grocers and Hobbes grappled in discussing the relationship between natural law and natural rights on the one hand, and war. And after all, to use the words of Sir Hirsch Lauterbach, fundamental rights are rights superior to the law of the sovereign state. With the statement that I cited just before of the ICJ, the door was opened to the Hobbesian aporia. The question of the relationship between natural rights and war, which grocers had studiously avoided, and Hobbes had identified, but essentially dismissed as unsolvable, took center stage. The court in that same paragraph introduced a qualification to the proposition that human rights applying war time. And that's the idea that the application of human rights is subject to the Lex Specialis. The court explained the functioning of the Lex Specialis in relation to the right to life. And that's what it said. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable Lex Specialis, namely the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus, whether a particular loss of life through the use of a certain weapon in warfare is to be considered an arbitrary deprivation of life contrary to article six of the covenant can only be decided by reference of the law applicable in armed conflict and not deduced from the terms of the covenant itself. Now, this is quite a shift in the way we think about the regulation of war. Grocers would have regarded the question, is there a right to life in war as a category error? This is not the question you ask when you think about war. You start from different premises. Hobbes would have given that question an affirmative answer but qualified it with a sort of so what in practice that right can not be respected. It's war. In terms of positive international law, we were accustomed to two ledges generalis, the law of peace and the law of war existing in parallel of course with some overlap but it's two different areas of international law. Now we have instead one lex generalis which can be modified by a lex specialis. This is an analytically and morally different approach to the regulation of war, even if the outcome is the same. The concrete operation of the lex specialis is no straightforward matter and many of the writers on these topics have commented on this. Human rights law is articulated in general principles which have been developed into sometimes quite specific rules in the extensive jurisprudence of international human rights courts and of domestic courts applying human rights. The law of arm conflict is articulated in a small number of general principles and a large number of very specific rules. The law of arm conflict has not benefited to the same extent as human rights from incremental development through judicial decisions. The main method of incremental development in the law of arm conflict remains non-judicial state practice. But even more fundamentally human rights law is premised on equality. It can rest on no other premise than equality. The law of arm conflict operates on the basis of distinction of status that is inequality. The ICJ's attempt to bring these two entirely diverse systems together by focusing on the meaning of the word arbitrary in the definition of the right to life was ingenious but problematic. The ICJ returned to this question in the wall advisory opinion where to its previous analysis in nuclear weapons it added the following. As regards the relationship between international humanitarian law and human rights law there are three possible situations. Some rights may be exclusively matters of international humanitarian law, others may be exclusively matters of human rights law, yet others may be matters of both of these branches of international law. Another case in which the court addressed the relationship between human rights and IHL is armed activities in Congo. In that case it enumerated both human rights and IHL provisions of which the acts of the Ugandan forces were found to be in clear violation. But no analysis of these provisions was developed by the court possibly because as Sir Daniel Bethlehem has observed there was overlap rather than conflict between human rights and IHL in that particular case. Unsurprisingly given these developments much of the debate in the academic literature on the relationship between human rights and law firm conflict is about the emergence of a mixed paradigm and calls for convergence abound. The court that has probably contributed the most to convergence albeit in a somewhat erratic way is the European Court of Human Rights. Erratic first and foremost because although it has decided in numerous cases arising in the context of an armed conflict the court has been very reluctant to say anything at all about the law of armed conflict with one exception to which I will come. But it is generally not full of the lead of the Inter-American Commission of Human Rights in the Abellia case where the Commission was prepared to apply IHL as leg specialist directly. Although I should add that the Inter-American Court of Human Rights has been less enthusiastic about the direct application of human rights of IHL rather. The case that stands as a partial exception to what I've said about the ECHR is the al-Skeny decision of the Grand Chamber of 2011. In the al-Skeny judgment the court tips its hat to IHL but it is not clear to what effect. The court's judgment is divided as usual into three parts procedure facts and law. The court discusses IHL in a series of paragraphs contained in the facts section of the judgment under the heading relevant international law materials. But by the time the court gets to the law section where its actual findings are found it has basically forgotten IHL. But the most interesting aspect of the ECHR jurisprudence is its handling of what I've described as the Hobbesian Aporia having rights which cannot in practice be secured. Eager not to appear unreasonable ever since Bancovich the court has referred to the capacity of states to respect rights in the concrete situations. But in Bancovich the court was also keen not to diminish the norm so that it could fit the facts. Indeed it held that the wording of article one of the ECHR does not provide any support for the suggestion that the obligation to secure the rights and freedoms defined in section one of this convention can be divided and tailored in accordance with the particular circumstances of the extra territorial act in question. Norms should apply to facts not facts to norms. In al-Sqaimi however the court changed position. It did so as part of its analysis of jurisdiction almost as an attempt to immediately alleviate concerns about what it had found on jurisdiction. And the key passage is this one where the court overrules Bancovich on the dividing and tailoring point. It is clear that whenever the state through its agents exercises control and authority over an individual and thus jurisdiction the state is under an obligation to secure to their individual the rights and freedoms that are relevant to the situation of that individual. In this sense therefore the convention rights can be divided and tailored. So the obligation is to secure rights that are relevant whatever that means and the obligations can now and the rights can now be divided and tailored. The judgment of the Grand Chamber in al-Sqaimi has had a profound effect on the judgment of the UK Supreme Court in the recent decision Smith and Ministry of Defence. The UK government maintained that state parties to the ECHR had never intended the ECHR to apply to armed forces operating outside their territory. In the Catherine Smith case which had been decided in 2010 the Supreme Court had found in favour of the government by majority of six to three. But in the 2013 Smith decision the majority of the Supreme Court found that after the ECHR al-Sqaimi judgment that view could no longer be maintained. The ECHR's departure from Bancovich on the question of dividing and tailoring rights was one of the main factors to which the Supreme Court drew attention. It said it was always going to be difficult to see how if that was to be the guiding principle it could be possible to accept that a state's armed forces abroad in whatever circumstances were within the jurisdiction for the purposes of Article 1 as the ability of the state to guarantee the entire range of the convention rights would in many cases be severely limited. So the answer of the Strasbourg Court and now the Supreme Court to the Hobbesian Aporia is human rights apply but we can make adjustments to make them fit the situation. Now this convergence of IHL and human rights is part of a bigger process of convergence between war and peace and it is not just happening in Strasbourg or in Parliament Square. It is also happening in other jurisdictions if you think for example of the decision of the Israeli Supreme Court on targeted killings. It isn't clear whether that's a decision under human rights law under IHL or it is an example of a mixed decision. But this convergence as I said which is happening in different jurisdictions is part of a bigger process of convergence between war and peace. The law of war and the phenomenon of war to some extent seem to be evolving along similar paths. In the past some writers most notably Philip Jessup and Gail Schwarzenberger had argued that international law needed to replace the war-peace dichotomy with a trichotomy war-peace and the intermediate state or status-mixtures. This proposal had no success when he was first advanced in the 40s and 50s but interestingly we may be going back to it as a result of this convergence and certainly there are many in the academic literature who are welcoming convergence. Whether convergence is the solution it is clear that war has also gone through significant changes and that the war-peace distinction may in some ways be difficult to maintain also in a phenomenological sense. The decline of interstate war but also changes in non-international conflicts and the decline in non- international conflicts are well documented. Technology is also contributing to changes in the nature of warfare that to some extent challenge the distinction between war and peace and I'll just give three examples of these new technologies one with which everyone is familiar because it has been in the media for some time is the rise of remote warfare through UAVs or drones. Now remote warfare does blare this distinction between war and peace in more than one way. Another technology that I think will become more and more prominent in public argument and certainly preoccupies states considerably already is the risk of weaponization of biotechnologies. Some of you may have seen the latest issue of foreign affairs is dedicated to this. All the key barriers to the artificial synthesis of viruses and bacterias have been overcome. The physicist Freeman Dyson says that in the not-so-distant future children will design and create living organisms rather than play with Lego but one need not look into the future to understand the perils. In September 2011 a Dutch professor announced that he had found a way in his lab to turn the H5N1 virus from a virus that infected mainly birds and only rarely transmitted to humans into human to human flu. The death rate for the H5N1 virus in the few cases where human transmission has occurred was 59%. So there was considerable concern that in the laboratory the human to human flu could be changed so as to incorporate the H5N1 virus. A Japanese professor shortly thereafter said I've done the same in my lab and I think a Chinese group of scientists has said that they've replicated a similar exercise 127 times with H5N1. There is a case in Holland concerning the publication of the results of this research. The Dutch government has so far successfully blocked the publication of this research and scientists are asked to publish their results if they have to in heavily redacted form. The cost of these technologies is declining very rapidly and the information is available on the internet. The equipment to do quite a lot of this stuff costs only tens of thousands of pounds. With the spread of garage labs it is no surprise that the citizen scientist is beginning to constitute a real preoccupation for government and with 3D printing also becoming more efficient and cheaper you may have read about the fact that you can 3D print a gun the citizen manufacturer will soon be a reality too. Now Thomas Frank entitled one of his books The Empower Self and it is true that this empowered individual is becoming the protagonist of our era but empowerment is not always for the better and the kind of threats that will emerge from the single rogue individual with this enormous destructive potential will also be somewhere in the penumbra between war and peace. The third example of a technology that I think blurs that distinction is the rise of what some scholars call non-obvious warfare in particular cyber warfare. One of my colleagues at Kings Thomas Reid has just finished a book that has been doing really well on on cyber warfare he argues that cyber attacks are sophisticated versions of three activities that are as old as human conflict itself sabotage espionage subversion so not open obvious warfare but warfare that is not in any way declared or made manifest but contrary to widely held views cyber attacks in Thomas Reid's opinion help diminish rather than accentuate political political violence. This is quite an interesting idea the relationship between these new technologies and violence because the correlation may be maybe inverse. Now let me move to an assessment of the current state of the law on human rights and war in light of these remarks and observations about broader trends. You probably all know about Harry Truman once asking for a one-handed economist because all the economists that he had consulted would always have answers like on the one hand and on the other hand. Now I'm going to be two-handed in my conclusions but I will say at the outset that my reservations about the current system the current approach to the application of human rights to war and the repercussions that this has had on the distinction between war and peace outweigh anything positive I may have to say about it. Now let's start with the positive side and this is really going to make you all feel better. The good side of the story is this there is an even bigger picture than the big picture of the war peace distinction that is relevant to the topic of the application of war of human rights to war. This bigger than the big picture is the story of the reduction of violence and war in human societies. When I moved to kings and joined for 75 percent of my time at the Department of War Studies as the only lawyer I expected to be surrounded by hardcore realists who had complete faith in the inevitability of war and violence and would view an international lawyer like myself with his Kantian belief in human perfectibility as a cute mascot of just the nuisance at worst. I was quite surprised to find out that among war study scholars all the money's on the war being in clear decline and that this decline has been going on for a while and some people even think they weren't really going to grow out of war pretty soon. The first scholar who advanced this thesis as an empirical not as a normative but as an empirical statement was Norbert Elias. In the civilizing process a book which was published just before the Second World War not the best timing for the kind of ideas. Elias argued that human beings had over the centuries been developing a second nature which allowed them to restrain the more instinctive and brutal first nature and by calling it second nature Elias was saying this is not just about human beings obeying to external pressure external rules for fear of punishment or social habits it's actually a change in human nature. More recently Stephen Pinker has taken that thesis forward in his book The Better Angels of our Nature. He has mastered evidence on the steady decline in homicide rates and violence across human societies at 8.8 out of 100,000 homicide rates in the world are the lowest they've ever been. And war is also affected by this process and it is not just Pinker who argues that but a host of scholars that go from Ned LeBeau to Azar Gat. It is magnificent book Warring Human Civilization published by Cambridge. As I said the decline in interstate war is a well-documented fact internal conflict is also now declining. It is true of course that we have weapons that can kill far more than before but the surprising thing is that we are not doing so. World War II was the bloodiest war in human history in absolute terms but relative to the population World War II is surpassed by at least eight other conflicts. Some of which it is surpassed by eight other conflicts some of which many of you will have never have heard of. These were conflicts that wiped out a far larger percentage of the population alive at the time than World War II did. So what's the link between this big trend that seems to have gone on across through human history and across human societies and human rights in World War I can't help thinking that the application of human rights to war this further attempt to constrain war is part of this process of rejection of war and that to use Stephen Pinker's words the better angels of our nature are at work in Strasbourg in the Hague and Parliament Square the Supreme Court side of Parliament Square also the Parliament side of Parliament Square the better angels of our nature at work there when all these developments are taking place but angels are not very good at considering unintended consequences and so I come to my other hand the not so good one. When the ICJ was trying to come up with some ingenious way of keeping the right to life in play in the context let us not forget of nuclear weapons its better angels did not pause to consider the fact that what Marco Milanovic calls the lexpecialist magic was transforming the right to life into an absurdity. The court said that the right not to be arbitrarily deprived of one's life applies in wartime too but that arbitrariness must be determined in accordance with the laws of unconfident. Now it will be recalled that the law that the court concluded in that case that it was not clear whether international law allowed the use of nuclear weapons in extreme cases of self-defense and so what that means in terms of the right to life is that there is some definition of the right to life which might accommodate the instantaneous annihilation of hundreds of thousands of lives. Would it not have been better if the court had instead proceeded on the assumption that human rights do cease in wartime and that as grocers would have probably said we have to think through a different category rather than contaminate the idea of the right to life. All the court could have said that human rights do not cease in wartime as it did and that of course the use of nuclear weapons breaches the right to life. The Strasbourg court has fared no better no better at handling the unintended consequences of its own better angels. The Strasbourg court already starts from a strong balancing philosophy. The principle of proportionality has added what I would describe as a utilitarian calculus in the application of rights that is from a liberal theory of rights I think very problematic in the argument in the United States the argument between absolutists and balances on the First Amendment was resolved in favor of the absolutists but even the balances in that argument if you read those decisions would have probably been horrified at the extent to which proportionality has been taken in Strasbourg. If that weren't enough the European Court of Human Rights now has a new method of rights slicing and this time it hasn't even tried to disguise it under a suave term like proportionality it openly speaks of tailoring and dividing rights but what are the limits of this tailoring and dividing in the passage from which I cited the course speaks of rights that are relevant to the situation of the individual how is this relevance going to be assessed on which theory will the court decide that certain rights are relevant to individuals in helmet but not relevant to individuals in Hampstead. Rights that are already subject to proportionality can now be divided and tailored and what is left of the idea of human rights is in my view in many respects in a liberal sense no longer a right but possibly also in an analytical sense not a right they are more akin to what French and Italian administrative lawyers would call legitimate interests these are interests that we have vis-à-vis the state but they have to be balanced against other state interests and can be taken away and will be variable and they're not quite clearly defined so to conclude let me come back to my question is human rights I think the question was in the future so the answer to the question is formulated the title of my paper is I don't know because I don't know about the future but if the question is human rights corrupting is war corrupting human rights is human rights contributing to taming war I think that war has clearly been restrained and continues to be restrain restrained in ways that we're only beginning to understand actually because of the extraordinary processes that I've described then human rights may be more the symptoms rather than the cause of this restraint but what is quite problematic in my view is that war has already to quite a significant extent begun to corrupt and diminish the idea of human rights and it is here in my view that lies a great danger