Between Wormholes and Blackholes: A Kantian (Ripsteinian) Account of Human Rights in War

The chapter sets out to explore the question of how the legal claims going by the name of “human rights” in contemporary legal practice can validly be made in war, consistent with the idea that rights are possible—indeed conceivable—only in conditions of peace. Even though war is wrongful in the highest degree, a still deeper wrong obtains if a belligerent does something whose maxim aims at making a future peace impossible. On this basis, Ganesh argues that notwithstanding actual, “empirical” conditions of active conflict, a belligerent must be deemed as sharing a rightful condition with an individual if denying the same would amount to admitting the commission of a war crime. Moreover, Ganesh also demonstrates—contrary to the dominant trend in legal scholarship—that a moral reading of the most relevant caselaw finds human rights obligations to obtain even if the obligor state has little to no capacity to enforce its writ, due either to the territory being embroiled in an active civil war or under the control of another state.