Civilians and War: Dilemmas in Law and Morality

A reporter at the St. Louis Post-Dispatch recently called me to ask whether or not recent events in Afghanistan and the Middle East indicate a change in the status of civilians during military conflicts. I responded that they have.

Rules for distinguishing between civilians and soldiers during armed conflict have been around since the medieval period, but the debate surrounding recent civilian deaths in Afghanistan (when the U.S. military mistakenly strafed a wedding party) and the Gaza Strip (when the Israeli Air Force dropped a one-ton bomb in a civilian neighborhood, killing its intended target but also nine children) suggest that, while legal principles exist that govern these areas, the moral debate is far from over.

Killing those not directly involved in terrorism or military actions strikes us as morally wrong, and even morally repellent. But some now argue that certain conflicts make the "rules" less relevant to the conduct of military campaigns. The fact that terrorists do not adhere to the rules governing civilians, i.e., they have no compunction about targeting civilians, means that those engaged in the protection of those communities do not need to adhere to the rules governing the status of civilians. Do the "rules" not apply in these cases, and more fundamentally, what are they?

Most cultures have always kept warriors and non-warriors separate, but it was not until the medieval period that specific rules were developed for distinguishing between civilians and soldiers. This has evolved into the "just war tradition." While some see just war as a distinctly Christian, or even medieval Christian, approach to moral evaluation of war, others have expanded upon the doctrine and found links with other traditions, both religious and philosophical.1 The tradition has two elements to it - jus ad bellum and jus in bello - which provide principles for evaluating the morality of initiating a war and for conduct during a war. The rules governing the treatment of civilians fall under the latter category, jus in bello.

With the creation of the modern army after the French Revolution and the levee en masse of the Napoleonic Wars, distinguishing combatants from non-combatants became more difficult. After the American Civil War and the wars of Europe in the 19th century, political leaders sought to concretize the distinctions between civilians and soldiers in the Hague Peace Conferences of 1899 and 1907. These distinctions were firmly grounded in state interests and the concept of military necessity.

While 19th century wars did lead to some attempts to better protect civilians - such as Henri Dunant's creation of the ICRC and Francis Leiber's General Order 100 for the American Union Army - war and statecraft in Europe during this period continued to value state interests over broader humanitarian concerns.

However, these rules were fundamentally challenged by World War I and especially World War II. During these conflicts, especially the latter, civilians were abused on a much greater scale and more methodically than ever before. As a result, civilians also engaged in much more active resistance to the occupation of their lands than in the past. These two developments led many to believe that new rules were necessary once again.2

The new rules that resulted, especially those applying to civilians, were created by the Geneva Conventions of 1949 and the additional protocols of 1977.3 While the conventions addressed many issues, two overall shifts can be identified: First, the focus of the conventions is less on military necessity and state interests and more on the protection of civilians and the definition of their status. Second, the conventions provided much more detail on how populations under occupation should be treated and gave more rights to resistant movements in relation to occupying forces. For example, reprisals, or the use of force to punish whole populations, were no longer considered legal except in rare circumstances.

These conventions have become the governing law in relation to how individuals should be treated in wartime. The laws today focus on a concept called "discrimination," or the ability to discriminate between civilians and non-civilians when it comes to the use of force. After making this determination, a number of principles can be applied to evaluate how civilians should be treated, all of which can be found in the relevant legal documents.

But while the legal principles appear clear, the problem, as in all law, is their interpretation and relevance for different types of conflicts. The challenges fall into three broad areas.

1. The first can be found in the classic restatement of just war, Michael Walzer's Just and Unjust Wars. In that work, where Walzer provides one of the most comprehensive overviews of the elements of the just war tradition, he concludes that there may well exist a theoretical tension at the heart of the just war tradition:

   "The greater the justice of my cause, the more rules I can violate for the sake of the cause - though some rules are always inviolable. The same argument can be put in terms of outcomes: the greater the injustice likely to result from my defeat, the more rules I can violate in order to avoid defeat - though some rules, and so on.4"

   Walzer suggests some ways to get around this dilemma, but acknowledges that it is a moral dilemma that cuts at the heart of the tradition. Indeed, we can see it reflected in both the U.S. and Israeli responses to the accusations that they have killed innocents. In both cases, officials have argued that their cause makes the rules difficult to follow. While they seek to obey them, they will occassionaly invoke the justness of their cause as a justification for overriding the rules governing who can be killed in combat.

2. A second challenge arises from the shift in the 1949 conventions to give more rights to those resisting occupation. In World War II, French partisan forces who were dressed as farmers would attack German soldiers out on patrols. Similar examples can be found in the U.S. war in Vietnam and in the current conflict between Palestinians and Israelis. If an entire society is engaged in a war against an oppressor, is it possible to define some as warriors and some as civilians? But if it is the case that whole societies support a cause, should the occupiers not be allowed to undertake reprisal actions that punish a whole society? Again, the cases of the recent attacks make this relevant. In the Israeli case, while not all Palestinians have been engaged in suicide bombings, many support these tactics. The Israelis are now proposing to punish family members of suicide bombers, a further challenge to the principles governing those under occupation.
   
   

   In the case of the U.S. Operation Enduring Freedom, the campaign has sought to distinguish between those who supported the Taliban and Al-Qaeda and those who resisted them. But in seeking to find "good guys," the U.S. military has occasionally placed itself into ongoing conflicts among Afghani militias. Some reports suggest that the US, when guided by Afghani allies, has been duped on occasion into taking out the Afghani opponent of their ally rather than a Taliban or Al-Qaeda opponent.

   An even more complicated situation in Afghanistan arises when we consider the relationships between the Taliban and al-Qaeda. The administration argued that any nation housing terrorists will receive the same treatment as terrorists. But this confounds levels of guilt for the attack on the US and raises questions about the treatment of citizens of Afghanistan caught in the middle. New evidence suggests that the Taliban and al-Qaeda leadership were at loggerheads prior to the attacks of September 11, raising questions about the US assumption that an attack on the community housing terrorists is justified. If these reports are true, than attacks on Taliban forces, who were not at war with the US, would seem to be a violation of the ban on non-belligerents.

3. Finally, new developments in weapons technology have raised some troubling questions. In the past 10 years, technology has led to the creation of "smart weapons" that allows military commanders to better pinpoint targets. Ironically, this development, which should lead militaries better wage war directly against other military targets, has led to military commanders targeting civilian areas because they believe they can avoid civilian casualties. In fact, however, this lessening of the threshold of what areas can be targeted has created the unfortunate outcome of militaries using weapons in situations that are highly populated by civilians. In both the Oruzgan and Gaza Strip examples, the military commanders believed that their weapons would hit only the military target. In both cases, they were wrong.
   
   

What do these challenges mean for our evaluations of military operations in the future? If our understanding of the rules is limited to international law, then these developments, and military operations against terrorists, suggest that applying them is not as simple as many international lawyers would lead us to believe. Instead, we need to recognize that international law can only take us so far in evaluating what can and cannot be done in the use of military force. There exist important gaps in the law that need to be filled by greater attention to moral principles like just war and the historical development of those principles.

In the end, though, we will need to keep in mind that adjudicating between competing moral claims remains difficult. Applying one set of rules rather than another will not solve our problems. We need to continue to investigate these competing claims and remain vigilant in our understanding of their sources and possible conflicts. The international law governing the treatment of civilians must be a part of our evaluation of military force - but it is only a part of a larger process of evaluation.

Notes

1 See, for example, Paul Ramsey, The Just War: Force and Political Responsibility (Lanham: Rowman and Littlefield, 2001); Michael Walzer, Just and Unjust Wars, 2nd ed. (New York: Basic Books, 1992); and Terry Nardin, ed., The Ethics of War and Peace: Religious and Secular Perspectives (Princeton: Princeton University Press, 1996).

2 For an analysis of this shift, see Karma Nabulsi, "Evolving Conceptions of Civilians and Belligerents: One Hundred Years after the Hague Peace Conferences" in Simon Chesterman, ed., Civilians in War (Boulder: Lynne Rienner, 2001): 9-24.

3 The actual documents can be found in Adam Roberts and Richard Guelff, Documents on the Laws of War, 3rd edition (Oxford: Oxford University Press, 2000). See Simon Chesterman, ed., Civilians in War (Boulder: Lynne Rienner, 2001) for interpretations of how these laws apply in civil wars, especially in developing country contexts.

4 Michael Walzer, Just and Unjust Wars, 2nd edition (New York: Basic Books, 1992): 229 and passim.