The historical emergence of the concept of the civilian
[T]he fundamental objective of international humanitarian law, that is, the dignity of the human person, is neither negotiable nor subject to modification depending on temporal and geographical circumstances.1
‘Historically, it has to be said that civilians were a minor consideration for the men at the center of the business of making the law of land warfare through most of its formative centuries’ writes Geoffrey Best in his analysis of the historical development of the relationship between law and war (1994: 264). Yet the potential of the ICTY and other mechanisms of transitional justice to provide justice to civilian persons and populations unlawfully harmed by the violence of conflict situations necessarily requires recognition of civilians as a category of protected persons in law. This status of personhood appears almost self-evident as a means to describe those who do not belong to the military or armed forces in the contemporary era. However, the ‘civilian’ is a relatively new legal category. It has only emerged in recent years to describe a category of persons present in situations of armed conflict.
This chapter explores the first ‘site’ of the judicial process that serves to construct civilians as a legal category of persons: the framework of international humanitarian law. This body of law provides protections for civilians as a category of persons during conflict situations, and serves as the subject-matter jurisdiction of the ICTY. However, this chapter does not seek to provide a detailed account of the body of protective rules afforded to civilians and civilian populations or the concept of ‘civilian immunity’ in legal or philosophical terms.2 Rather, it examines the historical emergence of the concept of the civilian in international law and identifies limitations to the terms of protection afforded to this category of persons in the contemporary period. It considers how different categories of civilians are protected in law through an exploration of the enforcement of charges of grave breaches of the 1949 Geneva Conventions in the case of The Prosecutor v. Duško Tadić heard by the ICTY. In so doing, the chapter advances two arguments. First, that the emergence and legal construction of civilians as a category of protected persons in international law has been a shifting process over the past century such that the ‘civilian’ has not figured as a static or fixed concept. Second, that the enforcement of the contemporary rules of humanitarian law illustrate that categories of group membership shape the protections of civilians such that not all persons holding this status may figure as ‘protected persons’ in conflict situations.
International humanitarian law can be described as ‘a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict’.3 While the origins of international humanitarian law, or the laws of war as it was traditionally known, are typically understood to lie in attempts to define belligerents and regulate actions between them (Nabulsi, 2005), modern humanitarian law is now more often characterized as being ‘centred on the protection of the individual in war’ (Pictet, 1985: 1).4 This protection-orientated conception of international humanitarian law emphasizes ‘that the legitimate scope of military action is not unlimited and that those who are or have been rendered non-combatant are entitled to impartial humanitarian concern’ (McCoubrey, 1990: 1). It focuses in particular upon ‘the protection of the victims of armed conflict, meaning those rendered hors de combat by injury, sickness or capture, and also civilians’ (McCoubrey, 1990: 1).
To provide a measure of protection to these persons, international humanitarian law restricts the means and methods of warfare by:
a) sparing those who do not or no longer directly participate in hostilities;
b) limiting the violence to the amount necessary to achieve the aim of the conflict, which can be – independently of the causes fought for – only to weaken the military potential of the enemy.
(Sassòli and Bouvier, 2006: 81)
It is commonly understood that modern humanitarian law is found in the four 1949 Geneva Conventions and the two Additional Protocols of 1977 (McCoubrey, 1990: 1). These Conventions and their Protocols develop the provisions of a number of international instruments, as will be identified below, with the 1864 Geneva Convention for the Wounded in Armies in the Field typically understood to constitute the first ‘phase’ or the beginnings of the chronology of international humanitarian law (Kolb, 2013; McCoubrey, 1990: 11).
Underpinning the framework of humanitarian law are two ‘basic principles’: the principle of distinction and the principle of proportionality (Sassòli and Bouvier, 2006: 81). Commonly understood to figure as the ‘cornerstone’ of humanitarian law (Goodman, 2009: 51) and one of its ‘intransgressible principles’,5 the principle of distinction serves as the foundational basis of the protection of civilians in conflict situations. This principle finds its expression in the ‘basic rule’ of the protection of civilians set out in Additional Protocol I (1977) to the Geneva Conventions of 1949:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.6
It is further supplemented by the provision that the ‘civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.’7 As commentaries on international humanitarian law attest, civilians may not be the object of an intentional, deliberate or direct attack by the parties to a conflict. Indiscriminate attacks and those by way of reprisals are also forbidden (Dinstein, 2004: 115–117). These rules have a universal and binding character on all parties to a conflict; there is ‘an unconditional and absolute prohibition on the targeting of civilians in customary international law’.8 It is the case that ‘any attack directed at the civilian population is prohibited, regardless of the military motive’.9
A second key principle underpinning the framework of humanitarian law is the principle of proportionality. This principle establishes that the parties to an armed conflict ‘are obliged to take measures of precaution so as to avoid harm to civilians and damage to civilian objects’ (Kretzmer, 2010: 102). The term ‘proportionality’ itself does not appear in the Additional Protocols. However, Article 51(b) of Additional Protocol I prohibits indiscriminate attacks, including ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. The principle of proportionality thus requires a ‘balance’ to be made between expected civilian injuries and military advantage. That assessment is to be made by commanders, and requires that they ‘cancel attacks if they may be expected to offend the proportionality rule’ (Rogers, 2004: 20). However, commentators have argued that this rule is both unclear ‘as to the degree of care required of the soldier and the degree of risk he must take’ and ‘what level of civilian casualties would be regarded as disproportionate’ (Rogers, 2004: 20). While contentious and not exhaustive in their scope or applicability, the factors that should be taken into account in the practical application of the principle of proportionality include the military importance of the target or objective, the density of the civilian population in the target area and whether the defenders are deliberately exposing civilians or civilian objects to risk (Rogers, 2004: 23).
Despite the centrality of the principles of distinction and proportionality to the lawful conduct of war, it is important to underscore that civilians are not afforded complete immunity from the harms of armed conflict. As Kretzmer points out, ‘even if these principles were fully respected in practice, they would not provide complete legal immunity from attack for civilians’ (2010: 84). That complete legal immunity is not possible as, in accordance with the principle of proportionality, if military advantage outweighs civilian deaths or injury an attack is lawful. International humanitarian law does not bar all attacks that may cause civilian injuries, but only those that are ‘excessive’ in relation to military advantage. Civilian victimization is therefore lawful in particular circumstances, and will not become the subject of legal condemnation or accountability processes.
How, then, did the civilian emerge as an identifiable legal concept? At what point did civilians become constituted as a distinct category of protected persons in law during situations of armed conflict? The influential legal scholar Fritz Kalshoven traces the emergence of a framework of legal protections for those who have fallen into the hands of an adversary during a situation of conflict back to the 1864 Geneva Convention for the ‘wounded in armies in the fields’ (1987: 40).10 As its name suggests, this Convention focuses upon the care and protection of wounded and sick combatants and determines that, to whatever nation they belong, these persons shall be collected and cared for.11 In the development of the laws of war, the 1864 Geneva Convention is of considerable significance in that, for the ‘first time states, by multilateral treaty, accepted limits on their power to wage war in favor of individual interest’ (Ahlström, 1991: 28). This Convention places restrictions on the conduct of war, and so affords a degree of protection to its participants.
In reading the development of international humanitarian law, however, it is possible to move beyond an analysis of the terms of its regulatory and protective framework to consider how it conceives of the persons it is seeking to protect. Drawing on Foucault’s analysis of the development of forms of disciplinary power as a means of producing selves and subjectivities, Helen Kinsella argues that the laws of war can be understood as one such form of discipline (2011: 109). As she notes, Foucault draws our attention to military discipline as the paramount example of modern discipline. He makes the important observation that discipline does not simply serve to regulate subjects, but also ‘“makes” individuals’ into soldiers capable of the fight of war (Foucault, 1991: 170). The concept, and enactment, of disciplinary techniques is shown to have ‘formed and informed subjects both in the rote sense of regulation and repetition and in the productive sense of constituting a specific character’ (Kinsella, 2011: 109). Read in this sense then, the laws of war can be understood to ‘produce and train civilized men’ (Kinsella, 2011: 109). They ‘produce that which they seek to regulate – “combatants” and “targets” – for neither of those categories exists outside the law and practices that make them possible’ (Kinsella, 2005: 250). In this ‘productive’ mode, the laws of war form the persons that they seek to regulate and protect. They produce combatants and, as will be set out in the chapters that follow, civilians as distinct categories of person, and the differences between them.
Commentators have put forward various propositions as to the time of the emergence of the concept of the civilian in common parlance. Typically, it is understood that the civilian as a definitional term entered general discourse in the mid nineteenth century (Alexander, 2007; Kinsella, 2011). Its emergence in legal commentaries is traced back to the years leading up to World War I when the ‘word civilian was used sporadically to designate non-military persons, but without the associated connotations of protected or victimized non-combatants’ (Alexander, 2007: 361). Most often, scholars spoke of ‘civilian spies’ or ‘civilian belligerents’ which, as Alexander points out, now ‘sound[s] odd, if not oxymoronic’ (2007: 361). The emergence of a norm of ‘non-combatant immunity’ and the beginnings of a protective framework for their safety and security has also been the subject of discussion and debate. For example, Gardam argues that the terms of the 1907 Hague Conventions indicate the ‘development of restrictions on the conduct of hostilities to improve the effectiveness of non-combatant immunity’ (1993a: 19). Yet scholars also argue that it is the 1949 Geneva Conventions and their Additional Protocols that ‘have provided the legal foundation for the inviolability of civilians as part of the laws of war’ (Slaughter and Burke-White, 2002b: 7). However, as I will show in the discussion that follows, the concept of the civilian did not emerge in international instruments in any clear or defined manner. Nor do these Conventions offer an encompassing framework of civilian protections as perhaps their terms may suggest. This section traces the ‘production’ of this category of persons through the terms of the Hague and Geneva Conventions as these are typically understood to form the basic legal framework of the regulation of hostilities (Nabulsi, 2001: 10).
Karma Nabulsi points out that the evolution of the concepts of civilian and combatant has been shaped by the expansion of the framework of international humanitarian law (2001: 10). This body of law has itself, inevitably, developed in light of the changing conditions of armed conflict and perceptions of the appropriate parameters of its conduct. As Meron describes, ‘[c]alamitous events and atrocities have repeatedly driven the development of international humanitarian law. The more offensive or painful the suffering, the greater the pressure for accommodating humanitarian restraints’ (2000a: 243). It has been the atrocities committed against civilians that have garnered the greatest attention from legal practitioners, humanitarian organizations and the general public over the past few decades, and the greatest pressure for the development of the protective rules of this body of law. This is not to state, however, that there has been a clear linear increase (or decrease) in levels of civilian victimization over time. Nor is to state that levels of civilian victimization hold true for all conflicts of a given period. As Grimsley and Rogers point out, ‘[s]ome wars kill many civilians, others almost none. Often the killing of civilians is regretted and minimized where possible. At other times the killing of civilians is in fact the principal objective’ (2002: xi). Rather, as Meron indicates, it is to suggest that the violent form of particular conflict situations, and greater awareness of their casualties, has been instrumental to the progression of the laws that have ‘produced’ the categories of civilian and combatant and sought to regulate actions between them.
In her exposition of the conduct of warfare in Europe in the nineteenth century, Nabulsi identifies practices pursued by occupying armies that had important implications for the inhabitants whose territory came under military rule (2005).12 She points to the ‘extraction of levies to support the occupation, the imposition of taxes, billeting and requisitions (of a temporary or more permanent nature), and acts of looting and pillaging’ (Nabulsi, 2005: 22). Incidents of torture and rape are described through reference to first-hand accounts, and belligerent reprisals are shown to have had profound consequences for civilian populations (Nabulsi, 2005: 24–36). However, as Slim points out, the popular image of European war in the eighteenth and nineteenth centuries is one ‘of ordered, gentlemanly combat confined to field armies and pitched battles’ (2003: 488). Many depictions of military practice in the late nineteenth century reflect a Clausewitzean image of war as violent conduct between state armies (Kaldor, 2001).13 These so-called ‘old wars’ were fought by standing armies under the control of the state, a central aspect of the monopolization of legitimate violence by the modern state (Kaldor, 2001: 17). Professional soldiers were regarded as the ‘legitimate bearers of arms’ and positioned in contradistinction from the non-combatant or criminal (Kaldor, 2001: 20). In this view of the conduct of inter-state warfare, civilians were largely marginal to their conduct (Münkler, 2005). They were not the object of attack (at least in any great numbers) or of any military significance to the professional soldiers engaged in combat.
Similarly to the 1864 Geneva Conventions, the 1907 Hague Conventions largely reflect this image of war’s character as a conflict between states, and their soldiers as ‘servants of the state’ (Hirst, 2001: 23). Against the backdrop of a European ideal of mitigating war on its territory, these Conventions were ‘drafted to “professionalize war” and thus pertain to the conduct of standing armies toward each other’ (Jones and Cater, 2001: 250).14 As Nabulsi points out, a central objective for the Hague Conventions was an attempt ‘to protect and enhance the status of professional standing armies of the state’ (2001: 12). A particular focus of the Conventions was, therefore, to establish those persons that qualified for the status of belligerent and, as such, the difference between lawful and unlawful combatant. The lawful combatant was expected to fit the European notion of a ‘civilized’ man, in distinction from the ‘savages’ outside this territorial boundary (Kinsella, 2011).15 They were to ‘be commanded by a person responsible for his subordinates’, ‘have a fixed distinctive emblem recognizable at a distance’, and ‘carry arms openly’.16 The subjects of war were therefore conceptualized restrictively: the professional soldier was the paramount figure of regulation, protection and condemnation of unlawful conduct. It was this soldier alone that had the right to fight and bear arms. As such, it was the professional soldier that was included within the law, and afforded its rights and protections.
However, as Gardam notes in her detailed exploration of non-combatant immunity as a norm of international humanitarian law, the 1907 Hague Conventions can be understood to contribute to the development of this ideal (1993a). The 1907 Hague Conventions do not make use of the term ‘civilian’ or refer to civilian immunity in any defined manner. There is no explicit prohibition on the deliberate or intentional attack of civilians, or the use of indiscriminate attacks. Instead, the notion of ‘soldier’s honor’ was to guide the terms of the appropriate social dynamics of conflict, that is, of the types and form of conduct and interactions of combatants with civilians (Henckaerts and Doswald-Beck, 2005: xxv). However, Article 22 does underscore that the ‘right of belligerents to adopt means of injuring the enemy is not unlimited’. Article 23 prohibits the killing or wounding treacherously individuals belonging to the hostile nation, while Article 25 prohibits the ‘attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended’. While lacking any explicit mention of civilian protections, these stipulations begin to shift the terms of the protection of persons away from an exclusive focus on the soldier to persons not directly participating in the conduct of war.17 There is a formal articulation of protections afforded to persons that do not hold the status of combatant. For this reason, it has been argued that these provisions are ‘in fact tantamount to a general rule recognizing civilians as an illegitimate target’ (Gardam, 1993a: 19).
Some 40 years after the adoption of the 1907 Hague Conventions, the consuming violence of World War I brought any image of war aligning to the Clausewitzean narrative of ‘professional’ combat between ‘honorable’ armies on the battlefield to a close. Lord Wright, Chairman of the United Nations War Crimes Commission, relates that the aggressors of both World Wars:
set up a theory of totalitarian war, totalitarian not merely because all the nations resources of men and material were swept into the war, but also because the war was waged with a total disregard for all humane and moral or legal restraints.
(The United Nations War Crimes Commission, 1948: 9)
As many analyses have established, the World Wars were disastrous for civilian populations (Chesterman, 2001: 2; Nabulsi, 2005: 19). Civilian populations were not protected or spared from their violent and brutal conduct. Rather, policies of extermination and terrorism in World War II exemplify the deliberate and intentional targeting of civilian populations (The United Nations War Crimes Commission, 1948: 14). The perpetration of campaigns of ethnic cleansing, bombings, internments and the besiegement of towns and cities unequivocally underscored that the ‘killing of civilians could be, not just a side-effect, but a major aim of some belligerents’ (Roberts, 2009: 37). New forms of technology and biological and chemical weapons exposed both civilians and military personnel to immense danger without distinction, while the aggression of the Axis Powers and the Allied bombings resulted in millions of civilian lives lost (Grayling, 2007: 5).18