Conceptualizing Civilians: Beyond “Innocence”

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| Oct 27, 2023

Civilians

This year marks the 100th anniversary of the Hague Draft Rules of Aerial Warfare, a significant attempt to conceptualize the regulation of the then-novel technologies of aerial bombing. While technologies of aerial warfare have changed significantly over the past century, the language used in legal reviews as well as public debate about harms arising from aerial warfare is indebted to logic spelled out in the 1923 document.

In particular, recurring situations such as the ongoing Israeli attacks on residential buildings in Gaza have shown the importance of defining who counts as a civilian. For example, in political discourse, we frequently hear claims about “innocent civilians,” implying either that civilians ought to be innocent to be protected or that there are civilians who are not innocent. The category of the civilian has historically been shaped by assumptions about “innocence” tied to race, gender, class, and occupation. Recognizing these histories allows us to see echoes of past exclusions in today’s proclamations about civilians and to insist on a more robust and realistic protection of civilians. In our recently published article, we argue that the legacy of the Hague Rules shapes how we assess airstrikes that kill civilians.

The Hague Draft Rules are the first document in international law to distinctly categorize “civilians,” asserting their protection from the effects of war. In our recently published article, we argue that drafters and commentators understood the 1923 Hague Draft Rules as facilitating rather than simply restricting aerial bombing. While the Draft Rules limited the targets and purposes of aerial bombardment, their regulatory techniques provided space for legitimizing aerial bombardment.

This post introduces our analysis of how drafters and commentators conceptualized civilians in this context. The Rules employed a vague yet narrow definition of a civilian, imbued with strong racial, spatial, economic, and political undertones. That is, “civilian,” was implicitly envisioned as white and European, not part of a non-European nation under European rule. In addition, the category of the civilian was narrowed by commentators who were eager to exclude those whose paid labour contributed to the war effort from the protective cover of the civilian status. While different authors affirmed the theoretical importance of the distinction between civilians and combatants, they chipped away at the practical scope of the category of the civilian.

The Draft Rules in Context

To trace the scholarly discourse on the conceptualization of civilians surrounding the 1923 Draft Rules, we conducted a qualitative content analysis of archives from U.S. and British international law and international affairs/relations journals between 1908 and 1935. This allowed us to identify trends, follow debates, and further explore the contexts of the discourse.

When the concept of the civilian started to be included in diplomatic documents and treaties, international lawyers relied on different strands of discourses about the civilian. As Dr. Amanda Alexander has shown, the (now familiar) discourse of civilians as innocent, vulnerable, and removed from conflict was an important component of professional conversations and journalistic accounts. Writing almost a century after the drafting of the Hague Draft Rules, Dr. Rebecca Sutton has identified “innocence, harmlessness, and non-participation” as attributes that humanitarian actors understood as embodiments of “civilianness.”

This figure of the civilian as a vulnerable non-combatant elicits sympathy and calls for protection, in the 1920s as well as in the 2020s. Yet not all civilians are “perfect” civilians. In early 21st century conflicts, we see militaries suspecting “local nationals” in Iraq and Afghanistan of supporting “insurgents” and publics speculating about whether civilians in Gaza who might have voted for Hamas can be called innocent.

In the early 20th century, some writers were concerned that civilians in countries at war would primarily identify as patriotic citizens and support the war instead of passively awaiting its end. In particular, commentators noted that citizens’ labour power and political support for government policies would make them an indirect part of the war effort. The understanding of civilians as political and economic actors critical for the war effort was in tension with the idealized representation of civilians as innocent and vulnerable. In the 1920s as well as the 2020s, it is important to recognize that adult civilians can lead complex lives. They might think, work, act, and vote in ways that express their views and allegiances. Civilians cannot be expected to be “innocent” of participating in social and political life.

Civilians and Civilization

A contextual reading of the Hague Draft Rules and the connected discussions suggests that “civilian” was imagined as a status restricted to inhabitants of Western countries. In the early 20th century, international lawyers used the term “civilian” almost exclusively to refer to either European persons within Europe or to white colonial administrators with a non-military portfolio. When international lawyers mentioned aerial warfare against non-European persons, they did not use the term “civilian” and rather referred to the local population as “natives.” Within the texts we have found and analyzed, the regulation of aerial bombing and concerns about the fate of civilians was exclusively voiced in relation to armed conflicts within Europe. The German bombardment of British and French cities was discussed as relevant practice calling for regulation, but the British bombing of Jalalabad and Kabul was not.

The difference between the permissive rules for bombing within Europe and the dominant insistence that law should not apply to the bombardment of peoples in the imperial peripheries is reflected in Elbridge Colby’s writings. His 1925 article on aerial warfare focuses on wars among States of the Global North, while his 1927 article “How to Fight Savage Tribes” exclusively focuses on the use of aerial warfare in colonial and imperial conflicts. Disagreeing with American Journal of International Law editor Quincy Wright, Colby opined that international law did not require the application of the laws of war to “people of a different civilization.” Instead, he proposed,

the real crux of the matter of warfare between civilized and uncivilized peoples almost invariably turns out to be a difference in fact as well as a difference in law. In fact, among savages, war includes everyone. There is no distinction between combatants and non-combatants. Whole tribes go on campaign.

Colby was careful to stress that the lawlessness of colonial warfare was not due to decisions taken by Western militaries, but a result of the character of the opposing side. “In small wars against uncivilized nations, the form of warfare to be adopted must tone with the shade of culture existing in the land, by which I mean that, against peoples possessing a low civilization, war must be more brutal in type.”

Colby’s writing exemplifies a specific—and not universally shared—approach to the role of alleged “civilization” in international law and the identification of civilians. The colonial rhetoric used by Colby in “How to Fight Savage Tribes” continues to resonate in contemporary discourse, nearly a century later. Indeed, as recently as October 7, in response to Hamas’s attacks, Israeli Prime Minister Benjamin Netanyahu echoed similar sentiments. He asserted that “Israel is fighting on behalf of every nation opposed to barbarism” and contended that “when Israel wins, the entire civilized world wins.” The contemporary figure of the civilian emerges from these histories in which the civilian status of non-Europeans opposing colonial rule was not assured.

Targeting Civilians 

While non-European persons had been tacitly left out of the conceptualization of the new civilian status, military strategists were conceptualizing civilians within Europe as the indirect—and occasionally direct—targets of aerial bombardment. The Hague Draft Rules’ prohibition on indiscriminate bombing for “terrorizing” civilians did not emerge from an uncontested consensus, but against the backdrop of the repeatedly articulated temptation to target “civilian morale” through bombing campaigns.

The First World War within Europe was a war within industrialized nations. The political discourse and propaganda in many belligerent States emphasized that all citizens can and should contribute to the war effort. Far from imagining civilians as innocent, apolitical, and passive, as certain strands of the discourse on civilians do, the rhetoric of industrialized war addressed them as citizens whose patriotic duty was to support the war effort through their political, social, and economic activities.

As Dr. Alexander has argued, where “everyone was involved and implicated” in a vision of totalitarian war, “conflating the people, the nation and the state,” there was little space for the figure of the innocent civilian. Within the scholarly debates on aerial warfare, civilians alternately appeared as unjustly terrorized and legitimate indirect targets of the horrors of war. The Hague Draft Rules’ prohibition on bombing civilians for the purpose of terrorizing them was not a product of a universal agreement, but rather a compromise designed to limit the reach of war. The fine-grained discussions of the place of munitions workers within the civilian/combatant binary provide additional evidence that European civilians were conceptualized as potentially targetable.

Jam and Guns: Negotiating the Civilian Status of Workers

During and after First World War, the idea of the passive and vulnerable civilian competed with the discourse of the “wilfully dangerous” civilian who identified as a citizen and patriot.  Military strategists of the time stressed both the role of “the people behind the lines who made the policy and sent the soldiers out to their fate” and the “home front” in which “female workers were as essential as male soldiers.” On the basis of a functional understanding in which the political support and economic contributions of non-combatants were essential to the war effort, some international lawyers as well as military officers framed civilians as “a key military target.”

The Draft Rules proposed that most non-combatants would be seen through the lens of the innocent and vulnerable rather than active and hostile civilian. Yet this framing was not applied to all such persons. Workers in munitions factories became understood as essential contributors to the war and therefore legitimate targets. Article 24 of the Draft Rules specified “military forces” as well as “factories constituting important and well-known centres engaged in the manufacture of arms, ammunition, or distinctively military supplies” as legitimate targets.

According to Professor James Garner’s interpretation published in the American Journal of International Law, this clause specified that munitions workers would not be legitimate targets per se, but that “the munitions factories . . . in which they work maybe bombarded, so that in fact the immunity covers them only while they are in their homes.” At the same time, Professor Garner speculated that “those of the civil population who are engaged in the production of materials of war” might be considered “enemy combatants.” In the Draft Rules as well as surrounding discussions, the figure of the European munitions worker hovered at the boundary of the newly forged civilian status. It is worth paying attention to the competing logics of vulnerability and contribution to the war effort that pulled munitions workers into and out of the civilian status.

The writers in U.S. and UK international law and international affairs journals generally showed an understanding of armed conflict that recognized the functional implication of most of the population in the war effort. They did not necessarily advocate for a “total” or “totalitarian” war, but they noted the social, economic, and technological changes undergirding warfare in the early 20th century. Writing in 1921, Professor Montmorency observed that “the distinction between the civilian who produces the sinews and weapons of war and the soldier who is in direct action is no longer possible.” Writing in the British Yearbook of International Law, British military air strategist James Moloney Spaight aimed for a similar line dividing “the ordinary population” from combatants and those who aid the war effort. Munitions workers, he proposed “cannot be considered to be entitled to the immunity which otherwise they can claim” while they are “actually at work in the munitions factories.”

The focus on munitions workers as a borderline figure of the civilian/combatant distinction also shows the limits of gendered discourses of innocent civilianhood. Some writers specifically recognized that the munitions workers they were pushing out of the status of fully protected civilians—at least while at work—included significant numbers of women. For example, Professor Garner cautioned that in future wars “women who work in munitions factories and in other ways contribute towards the winning of the war, cannot expect to enjoy the immunities of non-combatants.” Once munitions workers were excluded from bona fide civilian status, it was possible to extend this logic to other industries.

Commenting on the phrase “distinctively military supplies” from Article 24, section 2 of the Hague Draft Rules, Paul Whitcomb Williams argued that “so much of the output of almost every factory producing anything from jam to steel goes to assist the conduct of military operations.” “No doubt,” he added, “this provision was designed to exclude jam factories and include woolen mills making army clothing,” but “who is to say that meat is less important to an army in the field than raiment?” Williams’s train of thought suggests that there is no clear dividing line between civilians and combatants if the criterion is whether a person functionally contributes to the war effort. It is noteworthy that all the authors discussed the exclusion of different groups of workers from the civilian status on account of their waged labour, but there was no discussion of the economic, intellectual, or political contributions of non-working class people to the war effort and the implication of such forms of support for their status as civilians.

Concluding Thoughts

Taken together, the silent exclusion of non-European non-combatants from the civilian category and the open support for treating European munitions workers (and potentially workers from other industries) as functional combatants prefigures current debates about the boundaries of the civilian status. The U.S. military in particular has aggressively expanded the categories of people who may be targeted in armed conflict against non-State parties, including “Military-Aged Males,” “hostiles,” and more recently, the owners and workers of drug labs in Afghanistan who are taxed by the Taliban in return for security.

When the category of the civilian first appeared in an international legal document, it did not include all non-participants in war and allowed combatants to withdraw civilian protections from people whose paid labour or political support contributed to the war effort. While the legal category of the civilian has been heralded as fundamental to the laws of war, it has never had universally protective effects for civilians. The legacy of these exclusions is not distributed evenly. Civilians in West Asia, for example, must contend with the dual legacy of Western militaries excluding non-European persons from the civilian status and denying others civilian status on account of their political or economic activity.

The mere insistence on distinguishing between civilians and combatants is well-meaning but not sufficient. We also need to recognize that most civilians will be implicated in the actions of their government as workers or voters and yet do not intend to directly participate in armed conflict. Civilians don’t need to be “innocent.” They are ordinary humans with political views, dreams, emotions in the face of war, and the desire to not be killed. They might protest a military occupation or they might support repressive policies, yet they are not military targets. International lawyers would do well to remember the tacit exclusions of many persons from the civilian status and to commit to protect civilians who are complex and flawed humans instead of idealized “innocents.”

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Christiane Wilke is an Associate Professor in the Department of Law and Legal Studies at Carleton University.

Helyeh Doutaghi is an Associate Research Scholar at Yale Law School.

 

 

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