20 Oct In Defence of the Defenceless
[Alonso Gurmendi is a Lecturer in International Relations at Kings College London’s Department of War Studies and a contributing editor at Opinio Juris. I wish to thank Dr. Helen M. Kinsella, Prof. Adil Haque, and Ms. Sarah Zarmsky for their comments on previous versions of this post]
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”.
As seen above, some have argued forcefully against such a norm in the context of anticolonial liberation. In this view, such struggles should be fought by any means available, even attacks like those carried out by Hamas. In this view, “the civilian”, as a gendered, racialised and Eurocentric category, is simply just another tool of the oppressor; a constructed category meant to protect those in power, while at the same time leaving the colonised subject without any kind of protection. In simplified terms, the slave-owner is a “civilian” protected by international law; but the revolting slave is a rebel, a partisan, a terrorist, subject to summary execution for the crime of seeking their own liberation by killing their oppressor.
This resonates strongly with the ideas of anticolonial scholar Frantz Fanon. Fanon argued that the colonial world was an inherently violent one. It is a system that “paints the native as a sort of quintessence of evil”, as a society that is “lacking in values” and “insensible to ethics”, and therefore in need of Western civilisation (p. 39). Whenever this completely dehumanised person rebels against this system, no matter how small the rebellion, Fanon says, “he is handed over to well-meaning souls who in cultural congress point out to him the specificity and wealth of Western values”. They are told, therefore, that “decolonization need not mean regression, and that he must put his trust in qualities which are well tried, solid and highly esteemed”. Thus, if the colonised protests, they should petition; if they riot, they should be non-violent; if they kill, they are savages. Fanon rejects this proposition and declares that “if the last shall be first, this will only come to pass after a murderous and decisive struggle between the two protagonists” (p. 37).
It is in this context that some turn to Hamas’ attack and see the actions of a colonised people in murderous and decisive struggle against their oppressors. It is in this context that Israeli civilians are discounted as unimportant, for the outrage at the disrespect of their civilian rights would be nothing more than the voices of the well-meaning souls of international humanitarian law pointing the wealth of Western humanitarian values at the oppressed Palestinians. How rich, they would say, that they normalise the violence of Israeli oppression but bemoan the violence of Palestinian resistance. Or, as one colleague put it, “so glad Twitter wasn’t around during the Haitian Revolution”.
But reading Fanon as a justifier of total, wanton and unrestrained violence against the defenceless and vulnerable would, in my opinion, be a misreading. In fact, some have famously, albeit controversially, described his work has a “critique” of violence. Fanon, in fact, never describes violence as costless or even inherently positive. For Fanon, violence can be liberatory and cathartic, but is also a heavy burden for the colonised to bear; a burden that can harm anticolonial struggles if not kept in check. Indeed, Fanon expected the recourse to violence to come, primarily, from the so-called “rural masses” – those who cannot access the system to advance their situation in any way and have nothing to lose from violent confrontation. But this raw fury had to be directed towards the political goal of decolonisation. As Alberto Castelli explains, “the revolutionary leaders must do more than merely ride the momentum of the rural masses; they must also guide them, holding them back when necessary, and channel their rage into the execution of a precise political plan”. In Fanon’s own words:
“Racial feeling, as opposed to racial prejudice, and that determination to fight for one’s life which characterizes the native’s reply to oppression are obviously good enough reasons for joining in the fight. But you do not carry on a war, nor suffer brutal and widespread repression, nor look on while all other members of your family are wiped out in order to make racialism or hatred triumph. Racialism and hatred and resentment – ‘a legitimate desire for revenge’ – cannot sustain a war of liberation. (…) It is true that the neverending exactions of the colonial forces reintroduce emotional elements into the struggle, and give the militant fresh motives for hating and new reasons to go off hunting for a settler to shoot. But the leader realizes, day in and day out, that hatred alone cannot draw up a program” (p. 139).
One does not need to go to the extreme of constructing a critique of violence out of Fanon to notice his concern with the negative effects of violence. Fanon’s goal is, after all, not just the destruction of the coloniser, but the creation of a “new humanity” after liberation. Fanon is acutely aware that violence itself is one of the main obstacles to this goal; that “[a]fter years of living under a colonial rule which seeks to negate the identity of the colonial subject it also becomes difficult for the newly liberated subject to reclaim their own identity”. And it is in these terms that Fanon’s views on violence should be interrogated.
Judith Butler, for instance, discusses Fanon pondering whether “violence as a pure instrument can remain as such or whether it comes to define, haunt, and afflict the polity that instates itself through violent means”. We have to ask, they say, “whether violence continues to play a role in what it means to create oneself, what it means to produce such a community, what it means to achieve and sustain decolonization as a goal” (p. 191). In other words, even if one were to adopt a radically instrumental attitude to anticolonial resistance and be open to justifying as many means and methods as possible in order to secure the specific aim of decolonisation, in Fanon’s own terms, the deliberate unnecessary killing of the defenceless would be counter-productive, rather than conducive, to the objective of postcolonial emancipation.
But, as noted above, the Fanonian argument has not been the only one put forward. Others have argued that it is not Hamas, but Israel, who has the right to kill civilians. Most of these are based on the idea that Palestinian civilians are either morally irrelevant or complicit with Hamas. This idea of complicity or contribution to a cause as the basis for determining the extent of the right to life of a civilian is one of the main issues studied by Revisionist Just War Theory scholars. As explained by Haque, they argue that in a just war, “many civilians who do not directly participate in hostilities are morally liable to intentional or collateral killing” losing their moral right not to be killed “by making political, material, strategic, and financial contributions to an unjust war” (p. 258).
Jeff McMahan, for instance, argues that “many civilians in Hiroshima bore more than a negligible degree of responsibility for their country’s acts of unjust aggression that had made the defeat of Japan a moral necessity. It was after all, their government, expressing the beliefs and values of their culture and acting with their support” (p. 228). In his view, therefore, if the only alternative to a bomb was to launch a ground offensive where a massive amount of US soldiers would die, “torn from their peaceful lives by Japanese aggression”, then the inhabitants of Hiroshima could be morally killed in order to save US soldiers.
The view that all Palestinians in Gaza are in-league with Hamas is of course absurd and has been thoroughly discredited – not just because of the obvious racist generalisation it implies, but because of the sheer fact that half of the population of Gaza is under 18 years old. But even assuming, for sake of argument, that they were all “contributing civilians” in McMahan’s terms, in my view, the categorical norm of protecting the defenceless would still prevail, as they cannot lose their right to life simply by reference to abstract and indirect effects that do not constitute a threat to anyone. In other words, neither people nor states get to kill people over their politics! As Haque notes (p. 68):
“Contributing civilians cannot be liable to eliminative killing since no contributing civilian makes anyone worse off than they would be absent that contributing civilian. It follows that contributing civilians cannot be liable to opportunistic killing either. If we may not eliminatively kill a civilian to prevent her from paying her taxes, voting for pro-war politicians, or working in war-related industries then we may not opportunistically kill a civilian who has already done so—not because her action lies in the past but because her action will make no one worse off. If she was never liable to eliminative killing to prevent her action, then she is not liable to opportunistic killing in virtue of her action”.
This is, also, where Fanon’s views become relevant once again. After all, McMahan’s argument about the killing of contributing civilians only make sense if we can conclude that the war Israel is fighting is a just one. So, the added question here is, can we really claim that Israel is fighting a Just War in the occupied Palestinian territories? Can we really claim that the de-humanising objectives of colonial oppression described by Fanon constitute a just war? This is, in fact, a question that McMahan himself has already answered: No. In McMahan’s terms, Israel’s actions are neither proportional nor necessary and thus unjust. I will not go into McMahan’s proportionality analysis, given that I feel discussing it can be insensitive in the current context. McMahan, however, concludes that Israeli action in Gaza is rarely if ever proportional.
Crucially, though, is McMahan’s necessity argument: is the killing of Gaza civilians necessary to protect Israeli civilians from Hamas? Again, he answers, no:
“I believe that if they are necessary at all, that is so only conditionally. The war is necessary for defence only if Israel continues to quarantine the citizens of Gaza and to occupy and maintain settlements in the West Bank. If Israel were to abandon the aim of controlling territories to which it has no right, and to respect the right of Palestinians to a fully self-determining life in the lands allotted to them in the UN settlement of 1948, those who now fire rockets into Israel and conduct raids on Israeli forces would lose what sway they now have over the Palestinian people. Ordinary Palestinians want what other people want: to live with dignity, free from domination and oppression by others, to be secure and self-determining, and thus to have the opportunity to flourish in their own way”.
I have thus far shown that my view is that there is a norm against the unnecessary killing of the defenceless and why I am unconvinced that Fanon’s and McMahan’s arguments are enough to break it. I have also argued that neither Fanon’s nor McMahan’s theories would speak in favour of the deliberate and unnecessary killing of defenceless civilians in the current context. And yet, I have also shown that the category of “the civilian” is insufficient. There are therefore two important conclusions to take from this discussion.
First, that the category of “the civilian” needs to be perfected and further protected, not reduced or rejected. As I have noted before, the rules of international humanitarian law are a modern construct. And we need to make sure we construct them with the “unapologetic protection of civilians” in mind – or, perhaps, with the unapologetic defence of the defenceless in mind – not the balance between necessity and humanity.
Second, that beyond everything that I have said, and beyond all possible moral and legal disquisition, I agree with my colleague and friend Janina Dill, when she says that “the crucial moral question is neither ‘who is worse?’ nor ‘who started it?’, but “who has the power to stop it?” Thus, I can argue in ever longer and more detailed terms why it is not justified to kill civilians, but the truth of the matter is that it is the very argument about whether it is Hamas or the IDF who should get the right to kill the defenceless and vulnerable on the other side of a made-up line that is the moral failure; that this post exists and that I felt like I had to write it is itself the moral failure.