The Erosion of the Civilian

A guest post by Nicola Perugini and Neve Gordon. 

On the 16th of November 2018, speakers from different parts of the world and different backgrounds—academics, human rights and humanitarian practitioners, policy makers, and investigative journalists—interrogated and debated the status of civilians in armed conflicts.The Erosion of the Civilian was the first of two events that Neve Gordon, Professor of International Law at Queen Mary, Jonathan Whittall, Director of the Analysis Department at MSF in Brussels, and Nicola Perugini are organizing. The second workshop will take place in London at Queen Mary on the 14th of December. The aim of these two workshops is to create a dialogue across different disciplines and areas of expertise and to try to establish a thinking group on the topic of civilian protections and erosions.

The Edinburgh workshop was organized through collaboration between the University of Edinburgh, the School of Law at Queen Mary University of London, and the Médecins Sans Frontières (MSF) Analysis Department in the Operational Centre in Brussels, and was sponsored by the College of Arts, Humanities and Social Sciences, the Global Justice Academy, the Global Development Academy; the Centre for Security Research (CeSeR); Politics and International Relations at the University of Edinburgh; and Marie Sklodowska-Curie Action 703225 “On Human Shielding” for funding this event. What follow are the introductory notes to the Edinburgh workshop.

The status of civilians in war is a thorny issue that has informed most contemporary legal, ethical, and philosophical debates surrounding what constitutes legitimate and illegitimate conduct during war. For years, legal and military experts, politicians, academics, human rights and humanitarian practitioners have discussed and analyzed what makes warfare more humane, providing different and at times even contradictory views about the distinction between noncombatants and combatants in the battlefield.

The civilian and the combatant are the two axiomatic figures around which international humanitarian law—the set of norms regulating armed conflicts—has been structured and codified; and the principle of distinction—the idea of distinguishing between combatants and noncombatants and protecting those who do not participate in the hostilities—has progressively emerged as a global moral norm. Arguably the bedrock of international humanitarian law, it has become a leading principle through which the ethics of warfare is constructed and codified.

Not unlike other realms of law, in international humanitarian law the codification process has been informed by political tensions and is characterized by various contradictions. Particularly after 1949, the law has promoted numerous civilian protections, but the road to these protections is paved with exceptions. Hospitals, we are told, must be protected, but only so long as they do not exceed their medical mission. In instances of colonial war, Western states systematically denied the colonized civilians protections and carried out forms of total warfare that disregarded the very restrictions imposed by international law. What do these exceptions tell us about the history of civilianhood?

When the category of civilian or noncombatant first emerged in international law it included only certain human beings, and the boundaries of inclusion were often defined along racial lines. During colonialism, civilianhood was restricted to the group of those humans who were responsible for the codification process. The term civilian was not merely inflected juxtaposing it to the combatant, but also tracing a distinction between the civilized and the uncivilized. Such exclusions reflected the liberal framework which makes the notion of civilian rhyme with that of civilized, and imagines humanity as a universal concept, but the human figure it posits is never truly universal. Indeed, in colonial contexts humanity has always had a twofold meaning: it meant that a certain group of civilians could be treated humanely, while others could be dehumanized.

But in World War I and then again in World War II millions of European civilians were massacred. Only after the atrocities and brutality that for years had been confined to the colonies reached European soil, Western powers finally adopted the 1949 Geneva Conventions. More than anything, this Convention increased the value ascribed to civilians.

The family of nations agreed on a set of basic norms aimed at protecting civilians, while drawing a clear separation between civilians and combatants. The Convention introduced a series of restrictions on belligerents whose sole aim was to defend civilians trapped in the midst of war.

Notwithstanding the significance of the 1949 Conventions, the so-called family of nations was still predominantly white. Non-white countries continued to be excluded from the United Nations and international law was still considered inapplicable to colonial wars.

Following the horrors of the Vietnam War and due to the dramatic increase in United Nations member states from 51 in 1945 to 149 in 1977, the international community adopted the Additional Protocols to the Geneva Conventions.  It was at that moment that the category of civilian become more inclusive, encompassing for the first time the non-white world.

The post-war and post-colonial codification process undoubtedly constituted an element of progress characterized by two central movements pertaining to civilians: increased value and wider extension.

Simultaneously, in the twenty-five year period between 1975 and 2000 we witness an overall decrease in the number of civilian casualties in international armed conflicts as compared to similar periods throughout the twentieth century. This decrease might have been influenced by the changing value ascribed to civilians, but it was surely also informed by numerous geopolitical changes.

One thing is, however, clear. States that signed the major treaties that codify protections offered to civilians accepted that they should try to do their best to spare non-combatants during war. As a result, justifying significant civilian casualties during war became more complicated.

One could even say that a new culture of civilianhood emerged. Militaries around the world progressively incorporated in their law of war military manuals norms involving the distinction between civilians and combatants. And due to the important work of activists, journalists, scholars, human rights and humanitarian organizations, public opinion around the globe has become increasingly sensitive to civilian casualties.

This shift relates to the fact that access to conflict zones has also changed. Wars are currently subjected to legal and political scrutiny that until recently was unimaginable. Social media enables civilians trapped in the midst of fighting to communicate with people thousands of miles away, exposing atrocities and violations.

The different speakers presenting in today’s workshop are well aware of these changes. They are both a product of these transformations and have been invested in mobilizing publics against the unregulated use of lethal violence that has been continuously violating the sacredness of the civilian.

Notwithstanding the narrative of historical progress which assumes that today civilians enjoy better or more protections, we think that it is worth framing today’s discussions as part of a more complex picture.

On the one hand, we have witnessed over the past seventy years both an increase in the value ascribed to the civilian and the expansion of the civilian status to populations that until the end of colonialism were not considered fully human.  On the other hand, both the value and its extension are not immutable and cannot be taken for granted.

In a nutshell, counting civilian deaths is undoubtedly important, but it is also insufficient for understanding the category of the civilian and how it is changing at this particular historical moment. In spite of what appeared to be a decrease in civilian deaths, wars from Syria to Yemen as well as ethnic cleansing and genocide in Myanmar suggest that the category of the civilian is not stable and is constantly under threat.

Both state and nonstate actors in different areas around the globe continuously target civilians, while denying their actions and violations of international law.

Some frame civilian massacres as incidents, collateral damage, or as a lesser evil carried out in order to avoid greater evils. Others resort to legal creativity. As the Drone Papers revealed, the Pentagon is classifying all military aged men killed in drone wars as “Enemies Killed in Action,” a new legal figure created by military lawyers to expand the range of killable human beings in the battlefield of drone wars. At least in the Middle East, there are, it appears, no civilian men who are not of military age.

And as we are trying to demonstrate in our forthcoming book, existing legal figures such as human shields—which according to international law are civilians who voluntarily or involuntarily shield legitimate military targets and therefore can lose the protections they are entitled to—are increasingly being invoked by state militaries to justify the killing of women and children or to frame entire civilian populations as potential targets of lethal violence.

Such examples do not invalidate the narrative of historical progress involving civilian protections, but they expose something extremely important for our conversation today. One might say that recent attacks on civilians and the category of civilians serve as evidence of the recalcitrant “human nature” to inflict unnecessary suffering. But reducing the erosion of the civilian to “nature” surely faces the risk of essentializing and de-historicizing the legal and political struggles surrounding the question of both the civilian’s value and who gets to be called a civilian.

What we might instead do today is to ask ourselves why and how, in spite of the universalization of the category of civilian and the increase in its value, the actors in the battlefield continue to ignore or try to undo the distinction between civilians and combatants.

This raises some important questions that we could keep in mind during today’s workshop:

  • Which actors are eroding the category of the civilian?
  • What legal, technological, and political discourses do they deploy?
  • Are racial, gender, and other hierarchical lines mobilized to produce civilian erosions?
  • If the legal and ethical value ascribed to civilians cannot be taken for granted and cannot be considered irreversible, how can we actively preserve and even augment the values associated with civilians and counter the erosionist attempts?
  • And if the law itself does not provide a deterrent against the civilian’s erosion, and can even provide a justification for the erosion, what other avenues do we have to solidify civilian protections?
  • If indeed the law itself is problematic, how can we go beyond the law?
  • And, finally, how do we move beyond the privileged critique waged from the ivory tower of academia and produce a critique of law that can have a tangible political impact?

Such questions, we believe, can help us navigate this tension between the increased value ascribed to civilians and the global practices that put this value at risk. We hope our discussions today will begin addressing such questions, while formulating some counter-erosionist ideas.

Nicola Perugini is Lecturer in International Relations at the University of Edinburgh and the co-author (with Neve Gordon) of The Human Right to Dominate (OUP 2015). Neve Gordon is Professor of International Law at Queen Mary University of London. His research focuses on international law, human rights, the ethics of violence, the Israeli-Palestinian conflict and political theory. They are currently working on the co-authored book, Human Shields. A Political and Legal History (UCP forthcoming).