In an article published in the International Law journal Opinio Juris, academic Alonso Gurmendi analyzes the varying interpretations of the term “civilian” in the Israel-Palestine conflict, asserting that it could function as a norm against the killing of vulnerable individuals.
Alonso Gurmendi / Opinio Juris
On October 7th, Hamas militants broke down the security fences around Gaza, took over military checkpoints and infiltrated southern Israel with the objective of killing and/or kidnapping large numbers of Israeli civilians. In response, the Israeli government has instituted a siege of Gaza, denying food, water, and electricity to its inhabitants, ordering their mass expulsion, and threatened repeatedly to completely destroy its cities, in the most dehumanising terms. Gaza will become a “city of tents” and “razed to the ground” because Israel, say its authorities, is fighting “human animals”. Given this language, humanitarian and academic voices have warned of a potential genocide in Gaza.
While most have expressed their dismay at the enormous and egregious loss of life, there have been those who have taken aim at the relevance of the concept of the civilian for our understanding of this disaster. In this post, I want to critically engage with and push back on these views as a way of defending the value of the protection of civilian life; specifically, defending a norm against the unnecessary killing of the defenceless and vulnerable.
Before I start, I need to properly situate the problem. This is not an issue restricted to a single “side”, nor is this the result of social media run amok, where random anonymous individuals say shocking things for the purpose of being shocking. In this post, I refer specifically to statements coming from academia, advocacy groups, and government representatives. To name a few salient examples, in the immediate aftermath of Hamas’ attack, a few voices in academia argued that they did not think the term civilian “accurately reflects occupying Palestinian lands, violently displacing Palestinians, and benefiting from settler colonialism”. Similarly, others categorically affirmed that “settlers are not civilians. This is not hard”. Other statements did not specifically question the civilian category, but did frame Hamas’ deliberate killing of unarmed civilians as a legitimate military operation in an armed conflict; a “counter-offensive”.
As the days went by, however, these views were increasingly drowned by those who held the opposite view; not that there is no such thing as an Israeli civilian, but that there is no such thing as a Palestinian civilian. For example, when asked about the fate of “babies in incubators” whose life support would need to be cut off as part of Israel’s siege of Gaza, a former Israeli Prime Minister erupted in anger: “Are you seriously [going to] keep on asking me about Palestinian civilians? What’s wrong with you? (…) I am not going to feed electricity or water to my enemies”. Similarly, when asked about the welfare of Gazans, an Israeli Minister retorted simply “I don’t care about Gaza”. Later she said that Gaza’s residents “are invited to flee to the sea”. Likewise, Israel’s President stated that “[i]t’s not true this rhetoric about civilians [being] not aware, not involved” with Hamas. This same insinuation was repeated by some in academia. Lastly, an Israeli Ambassador categorically denied that there was a “humanitarian crisis” in Gaza, as if Palestinian casualties were simply unimportant.
In this post, I want to argue against views that dismiss the relevance or application of the concept of “the civilian” in the context of these events. My proposition, instead, is that the concept of “the civilian”, regardless of its many limitations, is still a function of a norm against the unnecessary killing of the defenceless and vulnerable; and as such, it should be preserved and improved, rather than abandoned. I will approach the discussion arguing in categorical terms, rather than instrumental ones; the purported justness of a cause cannot decide the extent of the right of the defenceless to not be killed. To do this, I focus on three main points: First, I will show that there is (or, perhaps, should be) a rule against the unnecessary killing of the defenceless and vulnerable. Second, I will argue against the notion that this norm should be abandoned when fighting a war of national liberation. Third, I will similarly criticise Israeli claims that the IDF can kill Palestinian civilians because they are complicit with Hamas. I will end the post by reframing the question away from the notion of who is allowed to do what immoral or illegal act and shift it towards the more valid question of who has the power to stop said immoral or illegal acts.
I should also clarify what this post is not about. This post does not argue that there is no right to violently resist colonisation. It is also not meant to equate the situation of Palestine with that of Israel. In fact, in searching source material for this post, it became clear that statements that disregard the civilian status of Palestinians have been more common than those that disregard it for Israelis. Similarly, while the latter have been dwindling down and often faced swift pushback, the former are becoming more frequent and normalised, particularly in the media and political discourse. Palestinians have a right to self-determination and Israel has a legal obligation to comply with international humanitarian law – which includes its obligation to end its decades-long blockade/occupation of Gaza and the West Bank. This post only seeks to argue against those ideas that hold that “the civilian”, as a function of the norm against killing the defenceless, is an irrelevant category in the current situation in Gaza.
Let me start therefore with the idea of a norm against the unnecessary killing of the defenceless. Before I look into this, however, it is important to critically analyse the category I am defending. It would be unproductive to simply uphold the constructed category of “the civilian” as the objective, politically neutral and mandatory standard that everyone needs to respect. As Helen M. Kinsella has exhaustively demonstrated, the process through which the modern laws of war decided who is a civilian and who is a combatant is anything but neutral. This distinction traces its history to the intertwined discourses of civilization, innocence and gender -their confluences and contradictions- which inform foundational documents of modern day “humanitarian” law. In fact, if it wasn’t for these discourses, the concept may have been lost for good after the horrors of World War II. As Kinsella explains:
“In 1945, the Judge Advocate General of the U.S. War Department wrote that, even though humanity itself demands the preservation of such a distinction between combatant and civilian, the distinction is one ‘more apparent than real’. Only a year earlier, Henry B. Wheaton, an eminent lawyer, had decried the very distinction as ‘illusory’ and, as a result, any efforts to retain its use as ‘immoral’. (…) Nonetheless, the destruction or dissolution of this distinction was said to betray the promise of civilization and to jeopardize humanity itself. (…) [B]arbarity abounds when ‘belligerents strike army and civilian population alike without distinction between the two. Joseph Kunz, a legal scholar, declared in 1951 that the two world wars exemplified the ‘total crisis of Western Christian culture, a crisis which threatens the very survival of our civilization’, because each demonstrated that the ‘cultural man of the twentieth century is no more than a barbarian under the very superficial veneer of civilization’. To repair the veneer, if not rehabilitate the man, the necessity of further developing international humanitarian law could not be denied. It guaranteed the ‘survival of our whole civilization’” (p. 112).
Built upon such foundations, the concept of “the civilian” cannot thus be fully separated from the Eurocentric and racist dichotomy of “the civilised” and “the savage”. In a way, it is its natural evolution. The 19th century concept of the “noncombatant” or the “private citizen” was “built upon two specific assumptions: one, passivity in the face of an occupier’s rule; two, non-participation in the fighting, (…) [o]nly if recruited as a member of the regular armed forces would their status change legally, making them liable to being made a prisoner of war if captured by the enemy” (p. 57). This, of course, excluded those unruly citizens acting in “uncivilised”, “indecorous” ways, namely indigenous people, female activists, partisans, and political prisoners, from any kind of international protection.
Thus, as the British delegate to the 1949 Geneva Conference clarified, “[t]he whole conception of the Civilians Convention was the protection of civilian victims of war and not the protection of illegitimate bearers of arms who could not expect full protection under rules of war to which they did not conform”. This anxiety at the heart of the negotiation process, between those pushing for what Boyd van Dijk calls “human rights thinking” (like the ICRC) and those states seeking to protect their strategic interests, meant that the leading drafters “initially adopted human rights thinking but ultimately rejected incorporating its discourse and principles within the Convention’s text” (p. 55). In the end, therefore, as Kinsella points out, “the protection of civilians as defined in the IV Convention are rudimentary and inadequate and of a somewhat abstract nature (…) extend[ing] protection only from arbitrary action on the part of the enemy, and not from the dangers of military operations themselves”. Indeed, delegates at Geneva battled “over the preservation of state sovereignty to wage war as necessary, relatively unhindered by considerations of civilians and conscience and by the recognition, or at least admonition, of responsibility to a common humanity” (p. 118, internal quotations omitted).
“Civilian”, therefore, can be seen as a problematic category. It emerges from racialized historical origins and is the product of the US and UK trying to actively prevent international humanitarian law from encumbering their strategic military interests by protecting too many people – or, especially, inconvenient people. And yet, it is the legal concept most likely to cover those who are defenceless and vulnerable in time of war (however imperfectly) and there is a moral case for defending those defenceless and vulnerable. As Seth Lazar says, “attacking the vulnerable is exploitative, risky, and breaches a basic duty to protect the weak; attacking the defenceless dominates and disempowers them, and generates unfair distributions of risk across the innocent”. Following Haque, therefore, “[c]ivilians are human beings with a basic right not to be killed or seriously harmed. They lose that right only by posing unjust threats directly, jointly with others, or indirectly through others they effectively control”.
You can read the full article here.