Civilian subjects, legal practices and progressive futures
Justice is always perfectible.
(Bassiouni, 1999: 87)
‘I wasn’t a soldier; I was simply a civilian’ testified Witness W-50 during the trial proceedings of the D. Milošević case.1 Amid the chaos and confusion of wartime violence, the ‘idea’ of the civilian appears to hold both a social and legal significance for many persons and communities. In addition to its perceived protective qualities, it signifies a choice not to engage in military activities, and shapes the nature of actions and relations with others. Yet despite being instantiated in both legal discourse and the minds and beliefs of individuals and communities over the past century, the concept of the civilian remains difficult to discern and perhaps contentious in its designation by mechanisms of transitional justice.
Humanitarian law has ‘produced’, and continues to ‘produce’, the concepts of the civilian and the combatant, and the differences between them. It substantiates these categories of personhood as legal categories, and defines persons and populations as holding one or other of these statuses through the processes of adjudication and judgement. In these terms, the law can be seen to organize ‘the world into categories and concepts’ (Garth and Sarat, 1998: 2). It determines how persons are ‘present’ in situations of conflict as particular kinds of legal subjects. However, as this book has set out, the construction of persons as ‘civilian’ through the rules and practices of international criminal justice does not figure as a fixed process, concept or designation. Rather, the different stages of the legal process all draw upon socially constituted categories of nation, ethnicity, age and gender to understand persons as being either civilian or combatant. These notions of group membership both influence the framework of protections afforded to civilians during conflict situations and serve to shape the likelihood of persons being recognized as such during trial proceedings.
This book has therefore questioned the idea that the concept of the civilian is a simple and straightforward ‘neutral’ legal category of personhood. It has shown that the construction of this identity (and the terms of its protection) through the various stages of the legal process relies upon shifting notions of social characteristics, ties and group membership. This process of judicial construction serves to undermine a central premise of humanitarian law itself: that all persons are either civilian or combatant. The frequent practice of evoking notions of social categorizations to make the assessment of the identities of persons and populations in accordance with the principle of distinction weakens this fundamental dichotomy. It has been shown that it places certain categories of person, namely young males, under greater scrutiny as to their status as either civilian or combatant. In turn, this conflation of particular persons with civilian or combatant status can be seen to lead to a further conflation of their status as either victims deserving of legal recognition, or potential combatants with a more dubious role in the violence of the conflict. This book has argued that the ongoing intermingling of social characteristics with ‘neutral’ legal categories of personhood disrupts the principle of humanitarian law that civilians and combatants are afforded protections in their status as such, and only as such.
Before turning to the limitations with current legal practices for the construction of legal recognition of civilian identities, however, it is first important to take note of the significant developments that have taken place since the early 1990s to progress their safety and security in situations of conflict. Most importantly, the international community has underscored that the enforcement of civilian protections should not be left to the actions (or in-actions) of states. Both the legal and political frameworks of civilian protection understand that the safety of this category of persons is now a matter of international concern.2 Issues of state sovereignty and policies of non-intervention have, in theory at least, been lost to a notion of the responsibility to protect persons in situations of mass atrocity (Evans, 2008). In the case of the enforcement of such protections, as Hirsh points out, the establishment of the ICTY evidences the ‘real institutional existence’ of mechanisms to undertake that task (2003: 16). This institution substantiates the existence of an international framework of rules that protects persons in situations of conflict, and the role of the international community in acting to enforce their breach. Alongside the ICTY, other international, national and ‘hybrid’ courts and tribunals have entrenched the norm that individuals can be held criminally responsible for the perpetration of unlawful actions against civilians and military personnel during conflict situations. It is now beyond doubt that unlawful conduct can be punished irrespective of the status of the accused. Notwithstanding the ongoing political objections by certain states, the International Criminal Court will continue this task of the prosecution and punishment of the criminals and crimes of war in the years to come.
The cases and charges that have been heard by the ICTY (and other institutions) have, in turn, played an important role in substantiating the ‘civilian’ as a legal category of persons and maintaining their protections as such. The jurisprudence of the ICTY underscores the importance of the distinction between civilians and combatants. It establishes that both these categories of person come under specific frameworks of protection, and so figure as ‘protected persons’ in particular circumstances. Moreover, the Tribunal’s cases and charges have been important for highlighting the evolution of the principles of humanitarian law. They indicate an expansion of the protections afforded to civilians in conflict situations and the successful prosecution of their breach. For example, as set out in the previous chapters, the Tribunal has heard the first war crimes charges of ‘terror against a civilian population’ during the course of its functioning, and determined that enslavement and persecution constitute crimes against humanity.3 The jurisprudence from these cases, and others, will undoubtedly be drawn upon by future mechanisms of transitional justice, and so shape the terms of the enforcement of civilian protections in situations of conflict.
As set out in the first chapter, this book sought to analyze two key areas. These were, first, how to understand civilians as a social and legal category of persons; and second, how legal rules and practices shape victim identities and protections in relation to these persons. In so doing, this book sought to move beyond a narrow identification of the rules that define a civilian and civilian populations to interrogate the terms of the ‘production’ of these categories of personhood in practice. It considered the representation of civilians and military victims by mechanisms of transitional justice, and the constitution of civilian identities as both individual persons and collectivities.
Employing a socio-legal approach to the construction of civilian identities provides a useful means to examine these processes. As set out previously, the definition of a civilian, and of a civilian population, is set out in Additional Protocol I of the 1949 Geneva Conventions. The law ‘produces’ the civilian as a legal category, and does so through a distinction to combatants. However, it is also possible to conceive of civilians as a social group. This book has therefore sought to understand how social choices, actions and relations shape civilian identities in the context of an armed conflict. An analysis of witness testimonies illustrated that civilian persons often made an express choice to act as civilians, and not as combatants during hostilities. They were not passive persons during a conflict situation, but active agents in the forms of their actions and behaviors. Moreover, their self-understanding of being civilian arose from actions undertaken to sustain a sense of ‘normality’. Those actions most often included general household tasks and actions to enhance their own protections and to protect others from the violent conduct surrounding them. Relations between civilians were shown to often arise from a sense of solidarity created by these actions, and not necessarily due to ethnic or other affiliations. Social relations therefore work to produce civilian populations as a cohesive entity, in addition to their non-membership of the armed forces. Being a civilian is a category of personhood that is both enacted by persons themselves, and attributed by the processes of the law. It is thus both a social action and a legal categorization.
However, as this book has argued, as a legal category, the concept of the civilian is unstable. It has been shown that there is a distinct disjuncture between the seemingly ‘neutral’ definition of a civilian (and a civilian population), and the terms through which this category of persons is legally recognized. The negative definition of a civilian complicates the terms of constructing recognition of persons as such through trial processes. As has been shown, the rules and practices of international criminal justice imbue the civilian with socially constituted identities or draw upon such identities to shape the terms of protection afforded to this category of persons. Certain groups of persons are implicitly viewed as either ‘fitting’ or failing to ‘fit’ the supposedly typical identity of a civilian person. For those persons who do not appear to fit this identity, social characteristics can thus operate as exclusionary categorizations, working to prevent or at least call into question the assignment of civilian identity.
That the law may exclude certain persons from having their civilian status recognized as such during a situation of conflict impacts, in turn, upon the attribution of victim status. As has been shown in the previous chapters, the potential failure of the law to attribute civilian status to persons and communities may prevent their victimization falling under its purview. It may render the accused not guilty of criminal conduct due to the legal elements of the crime under adjudication, and prevent the pronouncement of persons as victims of unlawful conduct. Recognition of their harms, and thus this form of redress, may be denied.
The possibility that the law may not adequately construct legal recognition of the civilian (or military) identities of persons presents significant difficulties for both the legal regulation of conflict situations and for processes of transitional justice. By using a case-study of the ICTY, these difficulties have been shown to be evident throughout the different stages of the legal processes of mechanisms of transitional justice. First, as set out in Chapter 3, the rules of humanitarian law do not provide an encompassing framework of civilian protection. Nor do they necessarily protect civilians solely in accordance with their status as such. Rather, certain categories of crime, such as the grave breaches regime, are structured such that civilians are afforded legal protection in accordance with the circumstances of the conflict and their ethnic or national differences from the perpetrators of violence. The membership of particular socially constituted groups shapes the protection afforded to civilians in particular circumstances, and the enforcement of such protections by mechanisms of criminal justice in instances of their breach. The rules of humanitarian law thus draw upon notions of group membership to shape certain notions of protection and safety for civilians in situations of conflict. Civilians that fall outside these categories may not find legal recognition of their harms, while perpetrators may not become subject to enforcement from their breach.
Second, the patterns of prosecution employed at the Tribunal illustrate problematic conceptions of which persons are understood to be eligible for the designation of victim status. The analysis of Chapter 4 argued that there is an under-representation of military personnel as the victims of criminal conduct. It showed that this category of persons is primarily understood to be the perpetrators of unlawful violence rather than a victimized collectivity in the event of their injury. Notions of ‘innocence’ and ‘blame’ are mapped onto the categories of civilian and combatant such that the former category of persons are seen as more deserving of legal recognition of their victimization through the perpetration of unlawful conduct. This analysis was also influential in drawing attention to the problematic conceptualization of young males as ‘potential combatants’ (Carpenter, 2006). By framing this category of persons as ‘men of a military age’, the legal process does not identify their civilian or combatant status. It does not pronounce upon how they are placed along the principle of distinction. Instead, it draws upon their social characteristics of gender and age to assume that such persons ‘may’ be combatants. This alignment of certain social characteristics with the potential for violence both undermines the foundational dichotomy between civilians and combatants as distinct categories of personhood and the ‘neutral’ formulation of civilian status.
Third, the practices of trial adjudication illustrate significant difficulties with the ‘negative’ definition of civilians. As set out in Chapter 5, there is no ‘positive’ definition of a civilian as there is for a combatant. Nor is there a consistent approach to the construction of civilian identities during trial proceedings. Instead, as shown in the cases of Galić and D. Milošević, the parties to a trial each utilizes different approaches to make that determination and often draw upon social characteristics to persuade the Trial Chamber that a person is, or is not, a civilian. Key markers of age and gender are used to construct civilian or combatant identities. Contrary to the ‘neutral’ definition of a civilian, the Trial Chamber in the case of D. Milošević affirmed that it may draw upon social characteristics to help make that determination of personhood. Given the conceptual conflation of young males with combatant status, the consequence of that determination may be that certain categories of persons are less likely to find legal recognition of their status as civilians, or as civilian victims in the event of their harm.
Fourth, there are significant difficulties with the construction of legal recognition of collectivities of civilians, that is, of civilian populations. As argued in Chapter 6, the processes of trial adjudication and judgement do not adequately recognize the ‘mixity’ of a civilian populace and its constitution through social interactions across ethnic lines. Through an analysis of the trial proceedings in D. Milošević, the chapter showed that the Trial Chamber did not recognize the entirety of this civilian collectivity as the victim of the ‘terror’ under adjudication or their common experience of its perpetration as a relational harm. Instead, the Trial Chamber drew on models of collective victimization to understand which persons constituted the victims and perpetrators of the siege of Sarajevo that reinscribed the ethnic divisions and antagonisms of the perpetrators. There was not a recognition of the ‘positive’ social relations and solidarity between civilians that were, and are, actively struggling to retain the mixity of this populace.
Together, these analyses of these different stages of the legal process show that the civilian becomes imbued with ideas of distinct social characteristics and group membership. There is not a consistent conceptualization of the civilian or the forms of their protection. Rather, this legal category of person is subject to different interpretations and understandings that impact upon the ability for them to find legal recognition of their harms and suffering.
The Tribunal describes that the ‘protection of civilians in time of armed conflict, whether international or internal, is the bedrock of modern humanitarian law’.4 However, as this analysis has shown, the legal concept of the civilian does not figure as a coherent norm of conceptualization or designation. When acts of civilian victimization come before a court of law, the concept of the civilian becomes imbued with particular notions of gender, age, nationality and ethnicity. These social characteristics and notions of group identity can function as deficient and exclusionary categorizations as they may limit the possibility for the construction of legal recognition of all persons that are civilian.