What happens when a bunch of lawyers intent on distinguishing combatants from civilians discover, by interviewing hundreds of civilians, that it cannot be done?
Does it become legal to kill everyone or no one?
The Center for Civilians in Conflict (CIVIC) has published a report called The People’s Perspectives: Civilian Involvement in Armed Conflict. Researchers, including from Harvard Law School, interviewed 62 people in Bosnia, 61 in Libya, 54 in Gaza, and 77 Somali refugees in Kenya. The lead author of the report is Harvard Law School Fellow Nicolette Boehland.
One might ask why Iraq and Afghanistan were left out, or any number of other countries, but the report says the researchers went where they were able. And the result is a valuable contribution that I’m willing to bet would not have found fundamentally different results by looking elsewhere.
“The laws of war prohibit the intentional targeting of civilians,” the report begins.
But then, so do the laws that forbid war, including the Kellogg-Briand Pact, the U.N. Charter, and nation-specific laws like the U.S. Constitution and the War Powers Resolution – the laws that professors of “the laws of war” resolutely ignore, as does this report.
The researchers found that many people who have lived where wars are fought have taken part in those wars in one way or another, and that they have no clear understanding (not that anyone else does) of when they have been civilians and when combatants. Said one interviewee, highlighted as typical: “What I think is that there is no line at all. . . . Civilians can turn into fighters at any time. Anybody can change from a fighter to a civilian, all in one day, in one moment.”
The interviewees made clear that many are forced into participation in war, others have very little choice, and others join in for reasons not too different from those expressed by the Pentagon: primarily self-defense, but also patriotism, prestige, survival, civic duty, social standing, outrage at the targeting of peaceful protesters, and financial gain. Bizarrely, not a single interviewee said they joined in a war in order to prevent Americans from going shopping after church or otherwise continuing with their lifestyle or freedoms.
The report stresses the legal implication of the finding that some civilians are forced into roles as combatants and aides to combatants, because “civilians who directly participate in hostilities forfeit their legal immunity from direct attack even if their participation is involuntary,” – except of course that we all have immunity from war because – although most lawyers steadfastly ignore this fact – war is a crime.
“To regulate behavior effectively, law must be clear and predictable,” CIVIC tells us. But all the so-called laws of war are incapable of being made clear or predictable. What’s “proportionate” or “justified” under this so-called body of law? The answers are all necessarily in the eye of the beholder. In fact, shortly later the report makes this admission: “Civilian participation in armed conflict has been and will likely continue to be a controversial issue.” This is because the report has identified an eternal problem, not a solution, and not a problem capable of a solution.
Distinguishing civilians from combatants can never cease to be a controversial issue, but lawyers pretend it is a problem worth “working on,” just as philosophy professors “work on” the problems of epistemology as if they might one day be solved. As a result of highlighting a permanent problem rather than solving one, a bit later, the report states explicitly that it “does not call for the revision of the law . . . Neither does it intend to push the debate in any particular direction.” Well, I hate to be rude, but what then is the point? At best, perhaps the point is to sneak awareness of an internal contradiction under the noses of believers in “the laws of war,” perhaps unbeknownst even to the report’s authors.
A “civilian” quoted in the report said, “I saw myself like a man who took a rifle in his hands to defend innocent people. I thought at leasty I have guts to do that.” He also saw his chances of survival as much greater if he joined in. But how do such “civilian” combatants differ in action or motivation from the “non-civilian” combatants?
Another explained that, “you’re never enlisted as a rebel. You can go in and fight, get out and go home, take a shower, eat some breakfast, play PlayStation, and then go back to the front. You can switch from one to the other in a moment, really.” Just like a drone pilot. But not like most U.S. combatants who travel far from home to kill near other people’s homes. Understanding those other people’s situations erases the outmoded distinction between civilian and combatant, which brings legal theory into touch with reality. But the choice is then to allow the killing of all or allow the killing of none. No wonder the report has no recommendations! It’s a report written within the field of war studies, a field within which one does not question war itself.
So-called civilians told the researchers that they had fought, provided logistical support, driven cars, provided medical services, provided food, and provided media coverage including social media coverage. (Once you’ve recognized media coverage as a contribution to a war, how do you restrain the expansion of that category? And how do Fox and CNN and MSNBC avoid prosecution?) The sea in which the fish called combatants swim (to put civilians and combatants into Mao’s terms) can also be killed by the logic of war, something many occupying troops realize and act on. The choice that must not be named would be to allow the sea and the fish to live.
The people interviewed had no coherent, consistent definition of “civilian” or “combatant” – just like the people interviewing them. After all, the interviewers were representatives from the “legal community” that justifies drone murders of people all over the earth. The idea of people switching back and forth between roles as civilians and combatants runs against the grain of U.S. thinking in which evildoers are, like child molesters or Lord Voldemort or members of another race, permanently and irredeemably evil whether or not engaged in evil activities. Nuance and war are awkward partners. The drone blows up a family when Daddy gets home rather than aiming only to blow Daddy up in the act of doing something undesirable. But if one drop of combatant blood makes you a combatant forever, then it’s open season on the general population of the areas under attack – something that hardly needs to be explained to Gazans or others who’ve lived through its reality.
“An employee of the Court of Bosnia and Herzegovina believed the categories did not apply easily to the complexity inherent in the Bosnian conflict,” CIVIC writes. “If you look at the Geneva Conventions, everything looks beautiful, but if you start to apply it, everything falls apart.” Interviewees said the distinctions that end up mattering are those of ethnicity and religion, not civilian and combatant.
Of course that sounds to lawyers of “the laws of war” like a bad case of primitive war in need of civilizing. But it’s war that is barbaric, not its degree of legal refinement. Imagine the idea that providing food or medicine or other aid to a combatant makes you a combatant worthy of being murdered. Should you not provide food or other services to other human beings? Providing such services is something conscientious objectors used to do during wars instead of going to prison. Once you’ve demonized treating a group of people as people, you’re not dealing with law anymore at all, just with war – pure and simple.
The time has come for war lawyers to join Rosa Brooks in throwing out peacetime and along with it any participants in peace, or with opponents of barbarism in throwing out wartime and with it any participation in war or war preparation.