19 May The Rabbit Hole, from Antwerp to Gaza
The past few days have been dominated by the horrible images of destruction coming out of Palestine. As is painfully visible to anyone with an internet connection, Israel has been targeting residential and commercial buildings in Gaza under the argument that they are used by Hamas militants. As one tweet by the Israeli Defence Forces put it, according to Israel, “[w]hen Hamas places military assets inside a building, it becomes a lawful military target. This is clear international law”.
And yet, if Twitter is any reference, it seems like international law is anything but clear. Discussions on whether it is legal to level a 13-storey residential building seemed quite unproductive. No matter how much scholars quote the red-letter of the law of targeting, definitive agreement on (il)legality seems impossible. Discussions often end stuck between clear illegality and (to use a tired phrase) “awful but lawful”. Instead of helping address the inevitable humanitarian crisis, international humanitarian law seems to take us out of it, and focus on a much more sterilised, vague and cold-blooded discussion about the “inevitable” horrors of war. At a certain point, the discussion simply becomes frustrating, making us feel, as one colleague aptly put it, that “[l]uring people down a rabbit hole on the finer points of what ‘proportionality’ means in IHL is precisely the point”.
The idea of a rabbit hole seems quite illustrative. At least in some fundamental, often unspoken, level, we all seem to agree that the law of war is an extremely defective medium for debating the legality or illegality of a particular strike. Almost inevitably, legal standards will become too contingent to be of much use. Dual-use civilian objects are valid targets if their destruction offers a definite military advantage. Attacks are illegal if the incidental harm is not proportional to the military advantage as defined by Israel. Attacks are also illegal if alternative means or methods of attack that reduce incidental civilian harm are not adopted, to the extent they are feasible. As Aurel Sari aptly put it in his very thorough post on the Gaza issue, “[t]he law of armed conflict was not designed to serve as a comprehensive normative framework for debating the rights and wrongs of war”. The key word here being designed.
To a large degree, the laws of war as we know them today were a product of the 19th century and what Koskenniemi calls “the Men of 1873”. While we like to focus on the humanitarian tone of the Geneva Convention of 1864 and the isolated phrases scattered throughout the preambles of the 1868 St. Petersburg Declaration and the 1899 Hague Convention, the truth is “the Law of The Hague”, as the rules on the conduct of hostilities were known, never meant to make the horrors of war “evitable”. When the rules of war were being designed, they were crafted by European diplomats and military officers that were openly preparing for total war, including the bombing of cities, not the protection of civilians. Looked at in this context, the Rabbit Hole is indeed the point – but of the entire discipline.
To illustrate this, take, for example, the case of the 1874 Brussels Conference, one of the foundational documents of modern international humanitarian law. In that occasion, the nations of Europe gathered to discuss the creation of a sort of code of the laws of war. The original draft presented by the Russian Empire was unsurprisingly permissive. Draft Article 13 allowed “the confiscation or destruction of any object essential for the enemy’s war, or anything that may strengthen him”. It also allowed “the destruction of all that prevents the success of war operations” (my translation). Restrictions were vague, scarce, and frequently qualified with references to the original Rabbit Hole – “the necessities of war”.
On the session of July 31st, negotiations were interrupted by a petition from the citizens of the Belgian city of Antwerp. The petition noted one key irony: the Brussels Draft (prepared by none other than Friedrich Martens) protected paintings and churches more effectively than it did human beings. Indeed, according to the Draft Declaration, “if a town (…) is defended (…) all necessary steps must be taken to spare, as far as possible, buildings dedicated to art, science, or charitable purposes, hospitals, and places where the sick and wounded are collected provided they are not being used at the time for military purposes” – not residential houses. The citizens of Antwerp thought, not without reason, that this was absurd. They requested that the delegates “admit as a principle of humanity that we cannot bombard residential areas [quartiers de villes], even in fortified towns”.
The delegates reacted in disbelief. The German representative, General Konstantin von Voigts-Rhetz, quickly interjected requesting that the minutes expressly reflect his conviction that “bombardment is one of the most effective means to achieve the objective of the war” and that it was therefore impossible to address the Antwerpians’ concerns. The delegate of Austria-Hungary, in turn, suggested that the Conference did not have the capacity to even answer the request. Not even the Belgian representative supported a concrete answer and “did not ask that it was answered immediately” (For the full discussion see the Brussels Acts, p. 40-42).
In the end, the Conference appended a “Draft Response to the petition of the citizens of Antwerp” (available here, p. 39, footnote 238) that stated:
War operations must be directed exclusively against the forces and means of warfare of the enemy and not against his subjects, as long as they do not themselves take an active part in the war. In the meantime, the Commission has the firm confidence that any commander of civilised armies complying with the principles that the Brussels Conference aims to have sanctioned through international regulation, will always consider it a sacred duty to use all means that depend on him, in the event of a siege of a fortified city, in order to respect private property belonging to harmless citizens, as far as local circumstances and the necessities of war will allow (my translation).
The response is a classic of the law of war Rabbit Hole. The response does not really say anything of value to innocent Antwerpians. It is not an operative part of the Brussels Declaration (and thus it has remained mostly forgotten); its application relies on the hopes and expectations diplomats have of “civilised” commanders, not binding rules of law; and it is (unsurprisingly) qualified by the necessities of war. In other words, “we hope armies don’t do this but if they need to, they will, and it will be awful, but lawful”.
Imagine the proverbial Twitter discussion of two post-Brussels-Conference lawyers discussing the legality of, say, the Siege of Plevna, during the Russo-Turkish War of 1877. Imagine a Youtube video, similar to those in Gaza, of a Russian bomb levelling an Ottoman residential building, allegedly housing a weapons cache. Just like today’s discussion, agreement on the bombardment’s “military necessity” would be impossible. The attack is “awful, but lawful”, because such are the “inevitable horrors of war”, etc. etc. The debate on Gaza today is an old one, and we have been having it on a loop since the very beginnings of the laws of war.
We must therefore be mindful that the “humanitarian” in international humanitarian law is not a given, nor an overriding concern. It was built upon the broken foundation of 19th century “law of war”. And in this law of war, military concerns came (chronologically and hierarchically) first. The objective was, to quote the 1868 St. Petersburg Declaration, to “alleviate as much as possible the calamities of war” (emphasis added). This is why today we hear (ad nauseam, sometimes) that “the purpose of humanitarian law is to strike a balance between military necessity and humanitarian exigencies”. Humanitarian concerns are meant to moderate the harm caused by the necessities of war, not end them.
Of course, this does not mean that there is some secret recipe through which war can be made “more humanitarian” than it is today. The very idea of a humanitarian war is, at least in my opinion, utterly absurd. War will only stop being a plague on humanity on the day we are done fighting the very last one. But as aware as I am that wars will not stop being horrible because we say so in a piece of paper, I also strongly believe that we must be aware of where the rules we are using today to “humanise them” came from and what we are saying when we say that something is legal according to them.
Using the RULAC database, I counted 55 states currently involved in armed conflicts (54 UN-member states and Palestine). That is less than 30% of the UN (counting Palestine as Observer state). Of these, an even smaller number have the capacity to engage in the kind of large-scale, high-tech warfare that Israel is displaying in Gaza. What this handful of states must understand is that, considering its history, saying something is “legal” under international humanitarian law is, at best, the start of a defence.
In fact, I would argue, the definition of “legal” itself is (and should be) challenged. Since the Four Geneva Conventions of 1949, and especially after 9/11, there has been an increased interest in bringing about a paradigm shift in the way we read humanitarian rules. Debates on the threshold for international armed conflicts, first strikes, co-application of human rights doctrines, the duty to capture, the authority to detain in non-international armed conflicts, the prohibition on superfluous harm, and a very long etc., all point out to an attempted re-imagination of international humanitarian law. This, often, prompts responses claiming that the very concept of IHL is under attack, that it will make war-making impossible, that the “original meaning” of the laws of war must be re-embraced, recaptured, recovered, etc.
But accepting the law of war’s warmongering roots and trying to rethink it in response is a worthwhile endeavour. The unapologetic protection of civilians, not the balance between necessity and humanity, should be the main focus of a modern re-reading. Readings that fall short of a humanitarian law of war should be questioned. Destroying an entire building without having to produce any evidence simply because one apartment was used by an armed group is awful. It is also unambiguously unlawful. If there are readings of the existing rules that don’t reflect this, they should be called out as deficient for the protection of civilians. Eventually, I hope, we may be able to do for Gaza what we could not do for Antwerp a century and a half ago.