Human Rights and War Through Civilian Eyes. Thomas W. Smith
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and Trachtman 1999).
The civilian can seem like a pure Platonic form, essential for understanding but forever out of reach. Historians wince at references to civilians as stock, decontextualized figures. Geoffrey Best (1980:285) says the “classic clarity of the textbook categories” can strike soldiers and resistance-minded individuals alike as “incredible.” Religious ethicist James Turner Johnson scarcely uses the word in his works on the just war tradition. “The functional role of civilians in war has differed not only over history,” he observes, “but also from culture to culture and even, within a culture, from one armed force to another” (Johnson 2000:445). The term was first used in treaty law in a single reference each in Hague II (1899) and Hague IV (1907), in chapters dealing with spies. It appears 28 times in Geneva Convention (IV) Relative to the Protection of Civilian Persons in War (1949), and some 200 times in the Additional Protocols (1977).
While indispensable to any discussion of modern war, “the civilian” has yet to evoke a definition beyond that of a noncombatant: someone who does not take an active part in hostilities, or someone who is not currently taking an active part in hostilities. Civilians are defined in the negative. The Geneva Conventions consider combatants as members of state (or, under the Additional Protocols, non-state) armed forces who are under command control, wear a uniform or other distinctive emblem recognizable from a distance, carry arms openly, and follow the laws and customs of war. People who take up arms to fight off an invading force but who are not yet organized militarily are also considered combatants. Everyone else is a civilian.
Defining civilians as noncombatants comes at a cost. Making combatants the prime referent deprives civilians of a positive identity to buffer them from violence. Upholding the autonomy of civilians is critical as legal interpretations of active participation creep toward non-material and non-military support. A negative definition also heads off serious consideration of the civilian idea itself (Kinsella 2011:6). To be a civilian is to pursue the positive goods of civilian life free of coercion and fear. Finally, the approach narrows what protection means. Merely refraining from targeting civilians as though they were combatants eclipses other, more affirmative interpretations of the law.
Of course, combatants and noncombatants are not always as distinctive as the laws of war suppose. As Helen Kinsella (2011) wonderfully puts it, the civilian represents “the image before the weapon”—the soldier’s view of the person standing before him. The soldier thinks, “I will not harm you because you do not appear to pose me harm.” That view (and the even more myopic view held by state and society back home) is undoubtedly colored by the mode of war, tolerance for risk, and the interests believed to be at stake, not to mention fear and loathing and other pathologies of war. The image rarely reflects the civilian’s own account of herself and her case for protection: “I’m studying to be a nurse.” “I’m on my way to see a friend.” “My family needs me.” At that moment, the civilian looks less like a right-holder laying claim against a duty-holder than a subject kneeling before the sovereign, pleading for mercy.22
Today, certain ideal types of civilians are safely beyond dispute, at least as objects of direct violence. But others face ambivalence or even hostility. UN Human Rights Council Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Philip Alston notes “a tendency to expand who may permissibly be targeted and under what conditions” (UN Human Rights Council 2010b). Distinguishing between civilians and soldiers is often presented as a matter of specialized knowledge and expertise, further insulating tactical choices and targeting decisions from critical scrutiny (Winter 2011:506). Belligerents of all types would cast people outside the protection of the law. Many exclusionary practices stem from what Frédéric Mégret (2006:268) calls the “anthropology of savagery.” Civilizational or religious wars, and nationalist, ethnic, and separatist strife are framed to exclude even the possibility of rights. Kant himself dismissed “lawless savages … devoid of right” (Reiss 1996:165). Unruly subjects are demonized as “rebels,” “bandits,” or “terrorists” in order to deny them formal belligerent status and restrict protections accorded them (Bhatia 2005). Sometimes the labels fit, but the same broadsides are leveled at sympathizers and supporters, even whole peoples, paving the way for collective punishment.
Particular modes of war further delineate civilians and the rights they ought to hold. The assumptions of set-piece battles differ sharply from those of partisan warfare, peasant uprising, or the levée en masse, for example. Turney-High’s Primitive Wars (1991:23) argued that a proper army is organized and purposeful: “true war” involved tactics, command and control, sustained campaigns, a clear motive, and adequate lines of supply. Informal warfare, on the other hand, entailed little more than “face-painting and sporadic butchery”—something you’d read about in National Geographic rather than Jane’s Defence Weekly.
In contemporary warfare, high strategy and advanced technology continue to frame civilian losses as unavoidable tragedies. After all, the best technology was used to try to avoid these “accidents” (T. Smith 2002b; Owens 2003; Zehfuss 2011). If an army believes that civilians inevitably will be caught up in insurgency or separatist strife, complacency settles over efforts to improve their lot. Strategic-legal categorizations erode the rights of detainees, too, both the meticulous classification of “high-value” suspects and the anodyne treatment of low-value ones. For a time in Iraq, the U.S. adopted the term “person under control,” or “PUC.” Political philosopher Giorgio Agamben (2005:3) described these people in limbo as “legally unnameable and classifiable being[s].… Neither prisoners nor persons accused, but simply ‘detainees,’ they are the object of a pure de facto rule.”
The Depth and Detail of Rights
The specificity of rights helps to counteract this dehumanization. Rights defenders have always married high principle to a detailed catalogue of abuses. In the sixteenth century, the Dominican friar Bartolomé de las Casas (1552) pleaded for the dignified treatment of indigenous Americans on grounds that they were rational beings in the eyes of God. His theological claims were rounded out with lurid details of the conquistadores’ crimes, “the horrid and unexampled massacres, butcheries, and all manner of cruelties, that Hell and Malice could invent.” This kind of graphic narrative remains the stock in trade of human rights advocacy. Human rights methodologies—site visits, surveys, hospital records, monitoring, and public reporting—are similarly almost ethnographic in their concreteness and detail (O’Flaherty and Ulrich 2010; Jacobsen 2008).
The laws of war set specific rules covering a range of issues, from respect for cultural property, to the treatment of human remains, to the release and repatriation of prisoners of war. However, the closer one gets to core questions of strategy and necessity the more general the rules become (M. Schmitt 2007). But it is also true that international norms are constantly being tested and revisited as general rules collide with particular cases. So it is with the rules of war, where principles of proportionality or military advantage are often hard to square with the actual consequences on the ground (Sandholtz 2008).
Consider the targeting or commandeering of schools by armed forces. Schools are classic civilian structures. But because they tend to be centrally located and solidly built, belligerents often use them as barracks, weapons depots, firing positions, or detention and interrogation centers. The laws of war allow combatants to use schools for military purposes—rendering them military “objects” and thus legitimate targets of attack—as long as the building is not simultaneously being used for educational purposes. Note how quickly and legally schools are militarized. By allowing belligerents to transform a school into a barracks or a weapons depot, IHL effectively trumps the children’s right to an education. “Guaranteeing the right to education is rarely a priority, or even a consideration, for armed forces and armed groups engaged in fighting,” notes the Global Coalition to Protect Education from Attack (2012:55). “Even those armed forces that pride themselves on their knowledge and compliance with the laws of war may be unaccustomed and unfamiliar with the idea of having to take into consideration children’s rights or economic and social rights when planning maneuvers and tactics for the battlefield.”
This isn’t to say that IHL is callous or uncaring. The law forbids categorically deliberately targeting schools as such. But protection ultimately