The Image before the Weapon

A Critical History of the Distinction between Combatant and Civilian

Helen M. Kinsella

• Publisher: Cornell University Press
• Year: 2011
• Print ISBN: 9780801449031
• eBook ISBN: 9780801461262
• Topic: Politics & International Relations
• Subtopic: Military & Maritime History
• Index: Politics & International Relations

Since at least the Middle Ages, the laws of war have distinguished between combatants and civilians under an injunction now formally known as the principle of distinction. The principle of distinction is invoked in contemporary conflicts as if there were an unmistakable and sure distinction to be made between combatant and civilian. As is so brutally evident in armed conflicts, it is precisely the distinction between civilian and combatant, upon which the protection of civilians is founded, cannot be taken as self-evident or stable. Helen M. Kinsella documents that the history of international humanitarian law itself admits the difficulty of such a distinction.

In The Image Before the Weapon, Kinsella explores the evolution of the concept of the civilian and how it has been applied in warfare. A series of discourses—including gender, innocence, and civilization— have shaped the legal, military, and historical understandings of the civilian and she documents how these discourses converge at particular junctures to demarcate the difference between civilian and combatant. Engaging with works on the law of war from the earliest thinkers in the Western tradition, including St. Thomas Aquinas and Christine de Pisan, to contemporary figures such as James Turner Johnson and Michael Walzer, Kinsella identifies the foundational ambiguities and inconsistencies in the principle of distinction, as well as the significant role played by Christian concepts of mercy and charity.

She then turns to the definition and treatment of civilians in specific armed conflicts: the American Civil War and the U.S.-Indian Wars of the nineteenth century, and the civil wars of Guatemala and El Salvador in the 1980s. Finally, she analyzes the two modern treaties most influential for the principle of distinction: the 1949 IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War and the 1977 Protocols Additional to the 1949 Conventions, which for the first time formally defined the civilian within international law. She shows how the experiences of the two world wars, but particularly World War II, and the Algerian war of independence affected these subsequent codifications of the laws of war.

As recognition grows that compliance with the principle of distinction to limit violence against civilians depends on a firmer grasp of its legal, political, and historical evolution, The Image before the Weapon is a timely intervention in debates about how best to protect civilian populations.

1

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GENDER, INNOCENCE,
AND CIVILIZATION

Law is a rule or measure of action by which one is led to an action or restrained from acting. The word law (lex) is derived from ligare, to bind, because it binds one to act. . . . [Therefore] a rule or measure is imposed by being applied to those who are to be ruled and measured by it. Wherefore, in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it.

—Thomas Aquinas, Summa Theologica, Question 90

Since the start of the ground wars in Afghanistan (2001) and in Iraq (2003), the distinction between combatant and civilian has remained a significant referent of engagement and standard of judgment guiding the operational strategy of the U.S. military and allies. In 2001, referring to operations in Afghanistan, General Richard Myers said, “the last thing we want are any civilian casualties. So we plan every military target with great care.”1 Charles Allen, deputy general counsel for the U.S. Department of Defense, stated in an interview on December 16, 2002, “with regard to the global war on terrorism, wherever it may reach, the law of armed conflict certainly does apply . . . in the sense of the principle of distinction.”2 Active military operations in both Afghanistan and Iraq conformed to the laws of war insofar as targeting decisions were evaluated with regard to the distinction to be made between combatant and civilian.

On September 16, 2008, in his capacity as commander of the North Atlantic Treaty Organization–International Security Assistance Force (NATO-ISAF), U.S. Army General David D. McKiernan averred, “NATO and American officials in Afghanistan believe that one civilian casualty is too many.”3 This statement followed the release earlier in the month of a tactical directive reviewing procedures for using lethal force, the singular purpose of which was reducing civilian casualties. Both the directive and the general’s statement were in response to widespread condemnation of civilian casualties resulting from an air strike in the province of Herat. A week later, the UN Security Council extended the NATO-ISAF mission in Afghanistan, but only after issuing explicit cautions about moderating civilian casualties. This followed specific changes in NATO-ISAF and Operation Enduring Freedom (OEF) tactics in Afghanistan in 2007 that included delaying attacks when civilians might be harmed. Furthermore, as Lawrence Wright reported in the June 2008 issue of the New Yorker, events of the previous year revealed that even organized networks of violence such as Al Qaeda are not unified in their acceptance of civilian casualties as a necessary normative and strategic dimension of armed conflict. In July 2009, the Taliban, under the directive of Mullah Omar, issued a new code of conduct for the Afghanistan Mujahedeen that specifically instructed them to “do their best to avoid civilian deaths and injuries and damage to civilian property.”4

These actions suggest that the protection and defense of civilians during armed conflicts are an elemental strategic and normative commitment on the part of the majority of states and organized militaries and insurgencies; moreover, they have been for some time. Beginning with his September 1999 “Report to the Security Council on the Protection of Civilians in Armed Conflict,” Kofi Annan, former UN secretary-general and Nobel laureate, repeatedly stated that “the plight of civilians is no longer something which can be neglected, or made secondary, because it complicates political negotiations or interests.”5 The centrality of the civilian was evident in the conduct of the 1999 NATO intervention in Kosovo. General Wesley K. Clark, supreme allied commander of NATO during the Kosovo war, writes, “Both we and the Serbs realized at the onset how critical this issue would be. It was the most pressing drumbeat of the campaign: minimize, if not eliminate, civilian casualties.”6

Significantly, it is not only the United Nations, the United States, and NATO that, in increasingly rare agreement, hold the principle of protection of and respect for civilians in great regard. Signed and ratified by a diverse array of states, the mandate of the International Criminal Court (ICC) explicitly reiterates the essential distinction between combatant and civilian, criminalizing intentional actions against civilians. In addition, the statutes of both regional criminal tribunals for Rwanda and the former Yugoslavia preceded the ICC in their acceptance of this distinction as definitive of the laws of war. Notably, these institutions were created soon after, or in the midst of, conspicuous transgressions of the laws of war. Consequently, in regard to the protection of and respect for civilians, the striking congruence of political and legal convictions suggests that the civilian is an essential concept and category of international law and international relations and a crucial referent by which conflicts and conduct are judged. Perhaps Alberico Gentili, the seventeenth-century Italian publicist, said it best: “He is foolish who connects the laws of war with the unlawful acts committed in war.”7

Juridically, formally distinguishing between combatants and civilians is known as the principle of distinction. The principle of distinction is one of three elements composing the principle of discrimination; the other two are distinguishing between civilian objects and military objectives and directing attacks only toward combatants and military objectives. The principle of distinction is a peremptory obligation of international humanitarian law; it requires universal observance from which no derogation is permitted.8 The principle is expressed in both customary and codified international humanitarian law and, as such, is both a positive and necessary precept for establishing the protection of civilians.9 Moreover, it is a central category of contemporary human rights and humanitarian discourses. The principle prescribes respect for and protection of civilians in times of armed conflict and “forms the basis of the entire regulation of war.”10

What does it mean to say that the principle of distinction forms the basis of international humanitarian law? International humanitarian law is the oldest and most highly codified system of international law. It reflects and regulates the customs and practices of war among and, less extensively, within states.11 In accordance with the formal classification of armed conflicts as either international or non-international, international humanitarian law articulates material and conceptual limitations on the actions of states, militaries, combatants, and noncombatants. As a result, international humanitarian law is a primary referent for the training and disciplining of those entities and, more recently, for the peacekeeping troops of the United Nations.

Nonetheless, at the same time as it serves as one of the foundations of contemporary law and politics, the principle of distinction, taken on its own terms, has proved to be remarkably frail. Contemporary armed conflicts, marked by a “mixture of war, crime and human rights violations,” are nasty, brutish, and increasing in duration and devastation.12 The quintessential characteristic of the majority of these conflicts is the blurring of the distinction between combatant and civilian. The debasement of this distinction poses formidable challenges for the enforcement of international humanitarian law and dramatically discloses its limitations.

Scholars and historians of international humanitarian law agree that the principle of distinction is “recognized as the fundamental principle upon which the entire notion of ‘humanity in warfare’ rests.” Yet it is equally acknowledged as “the most fragile.”13 Indeed, the ragged conflicts in the former Yugoslavia, in Rwanda, and in the Sudan have been scored by the extremity of both the deliberate, determined persecution of civilians and the haphazard, wanton destruction of civilians, resulting from a concerted military strategy or its absence altogether.14 There is no doubt that these internal conflicts are marked by what many scholars and essayists term a “particular savagery.”15 But to ascribe violations of the principle of distinction to the location of a war is highly misleading, if not also an effect of a particular conception of civilization. Certainly, sophisticated military technologies in ostensibly less ragged wars render the conceptual distinction equally absurd—if not more so.16

In both instances, the most striking result is a consistent and terrifying indifference to the classic distinction between the elemental categories of international humanitarian law—combatant and civilian are to be identified and distinguished at all times. Let me be clear: I do not claim that international humanitarian law outlaws the killing of civilians. That would be a patent misreading of the law. Although the principle of distinction is the predicate of the potential protection of civilians, it is not an obligation of absolute protection. Instead, it confers responsibility on military commanders and their forces, as well as on civilians in positions of authority, to refrain from directly attacking civilians and civilian objects, to take reasonable precautions to avoid and minimize civilian deaths, and to avoid and minimize the destruction of civilian property and objects necessary to civilian survival. The laws of war have admitted the possibility of collateral or unintentional damage since Thomas Aquinas first wrote of an act “beside intention.”17 Thus, it appears that the foundation of international humanitarian law—the principle of distinction—actually allows the death of civilians in war and that the robustness of positive and customary law is not reflected in an equally robust compliance.18

Is this a paradox? Yes, if paradox is defined as an “unresolvable proposition that is true and false at the same time.”19 But, within the increasingly functionalist mapping of the role of laws and norms by scholars attentive to both, a paradox is taken to be a simple contradiction that can and should be resolved once behavior is aligned with the norm in question. Indeed, the practical work of international organizations and institutions both rely on and reify this interpretation. For example, consider a discussion of the UN Security Council on the topic of the protection of civilians: insofar “as civilians have become the primary victims and often the very objects of war,” the proper response is to encourage and solidify “full compliance with the rules and principles of international law” and to promote, in the words of one participant, no less than the “civilianization of conflict.”20 According to this logic, the appropriate response is to buttress the principle of distinction through increasing compliance and enforcement.

Likewise, regardless of the increasing acknowledgment within international relations of the importance of law to regulate world politics, the paradigmatic approach to the study of international law and international relations is consistently restricted to the study of the dimensions of compliance,21 which in turn only “implicitly examines the foundations of international institutions and international order.”22 This framing excludes an analysis of the very politics that informs and produces international institutions and creates international order. In addition, as Martti Koskenniemi observes, this focus on compliance “silently assumes that the political question—what the objectives are—has already been solved.”23 Further, this focus on compliance necessarily presumes that its foundational concepts—the combatant and the civilian—are secure. Ironically it is exactly this presumption that is proved false in the conduct of armed conflicts.

Within armed conflicts the “dividing line between combatants and civilians is frequently blurred”—this is a consistent refrain voiced by both witnesses and participants, and sounded repeatedly throughout the numerous statements and debates within the UN Security Council regarding the protection and treatment of civilians in war.24 To suggest, as one scholar of international law does, that the definition of the civilian (which he calls a “term of art”) should be determined within the “context of international and non-international armed conflict” presupposes a clarity of conflict reminiscent of the ideal of set battles.25 After all, as another international lawyer acknowledges, the empirical and juridical categories of combatant and civilian are “not quite so neatly separable” as implied and were rarely so.26 Indeed, international humanitarian law itself admits the imprecision of the distinction, stating that “in case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”27 Doubt, then, becomes an integral attribute of the category itself as well as the basis for the injunction to extend the category.

If doubt and indeterminacy are integral and evident characteristics of the categories combatant and civilian and, significantly, of the difference between them, what are the implications for responding to the violation of the principle of distinction? Foremost, the concepts and categories of combatant and civilian cannot be taken as self-evident either within international humanitarian law or in conflicts. Therefore, they must be produced; in other words, the significance and strength of the categories of co...

Table of contents

• Acknowledgments
• 1. GENDER, INNOCENCE, AND CIVILIZATION
• 2. MARTIAL PIETY IN THE MEDIEVAL AND CHIVALRIC CODES OF WAR
• 3. CIVILIZATION AND EMPIRE
• 4. GENERAL ORDERS 100, UNION GENERAL SHERMAN’S MARCH TO ATLANTA, AND THE SAND CREEK MASSACRE
• 5. THE 1899 MARTENS CLAUSE AND THE 1949 IV GENEVA CONVENTION
• 6. THE ALGERIAN CIVIL WAR AND THE 1977 PROTOCOLS ADDITIONAL
• 7. THE CIVIL WARS OF GUATEMALA AND EL SALVADOR
• 8. RESPONSIBILITY
• Notes