In the last week, for obvious reasons, there has been a lot of discussion using words like “war”, “terrorism”, “war crimes”, “human shields”, etc.
This is good and appropriate for the time. The problem I wish to highlight right now is that words matter and, when discussing those topics, the vocabulary many of us have has been bent, twisted, and manipulated by various forces for their own benefit. I’ll explain how in a bit – the why should be obvious.
Let me start by asking you to purify your vocabulary when it comes to conflict and its effects. I’d like you to stop using fungible terms like “war crime”, “ethnic cleansing”, “collateral damage”, etc., and stick strictly to the vocabulary used in International Humanitarian Law (IHL). There’s a simple reason for that: the vocabulary of IHL is extremely clear and deliberately freed of nuance and gray areas. The people out there, and you may know who they are, who wish to minimize crimes against humanity, will often prefer terms that add nuance to a topic that is generally pretty free of nuance. Here, I quote from [icrc]
What is international humanitarian law?
International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.
Personally, I wish they had left the last sentence off, since it dilutes their own message. But, a lot people are still looking for “the law of war” – still – and a few are looking for St Augustine’s “Just War Theory”, etc. Mostly, when people are opining about this topic on the internet, they are using a confused amalgam of Just War Theory, Westphalian theory, and (of course!) the Geneva Conventions. But, if you dig deeper you’ll find that the Geneva Conventions are not what many think they are – a post World War I set of rules – they have been updated. But there’s still the notion of “a state of war” between nations being somehow important to the commission of a crime against humanity. That’s inaccurate under IHL, and the notion of “state of war” should be removed from our consciousness, especially since it serves to minimize crimes against humanity committed against a noncombatant population in a “police action” or some other minimizing term. In the case of the current conflict in Israel and Gaza, you can immediately see how getting your interlocutor to conceptualize someone bombing a city full of noncombatants as either “terrorism” or “police action” when under IHL it’s all “armed conflict” and there are “combatants” and “noncombatants” and there are no manufactured gray areas. It is these gray areas in which the perpetrators of crimes against humanity seek to hide.
So, I urge you, as strongly as I possibly can, to sit down and read IHL critically and think carefully about how the language of war/atrocity/terrorism is being used, and to examine how it is being used to manipulate you.
When does international humanitarian law apply?
International humanitarian law applies only to armed conflict; it does not cover internal tensions or disturbances such as isolated acts of violence. The law applies only once a conflict has begun, and then equally to all sides regardless of who started the fighting.
This wording is extremely carefully made. There is no reference to “aggressor” or “invader” or any of the terms that might indicate who started it. Because “who started it” is invariably a topic of discussion when someone is trying to minimize their side’s crimes against humanity, i.e.: those noncombatants wouldn’t have gotten hurt if we hadn’t had to do this awful thing. By the way, that sort of reasoning is ancient and is embedded in St Augustine’s Just War Theory. Augustine was not trying to establish a moral system, he was trying to justify one state’s political violence and to answer an irrelevant challenge, namely the challenge to Christians, “if god says ‘thou shalt not kill’, why do you Christians go around killing eachother so enthusiastically?” [Note: god did not actually order “thou shalt not kill” – that was Cecil B. DeMille, the director of the 1956 movie The Ten Commandments, who significantly re-wrote the Leviticus version in order to fit them onto a prop tablet]
Non-international armed conflicts
are those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol II
That all sounds pretty good, right? It’s carefully crafted to appeal to nationalists, by asserting that there are specific differences between state-on-state warfare and internal conflict, but when push comes to shove, IHL actually doesn’t claim there is much difference between various forms of conflict. For example, under the Geneva Conventions circa World War I, (1907) spies might be shot out of hand (Article 29) but under IHL, they are either noncombatants or combatants; there is no more complex state that any person can be in. And, by the way, a “spy” does not lose their rights even under the 1907 convention – they can be imprisoned and kept incommunicado, but are not to be tortured or killed. That kind of confusing mish-mosh is what I am encouraging you to avoid – because if you talk about “spies” you may as well also consider “terrorists” and you might have to consume an entire law-library to construct an argument that would allow anyone to tell them apart. “Terrorist”, by the way, is another of those fraught value-laden terms that is used to amplify one side or another’s opinion about crimes against humanity – the US talks a great deal about “terrorists” but it changes the definition of the term constantly and at its convenience. The FBI, for example, defines it circularly: [DOJ]
International terrorism: Violent, criminal acts committed by individuals and/or groups who are inspired by, or associated with, designated foreign terrorist organizations or nations (state-sponsored).
Domestic terrorism: Violent, criminal acts committed by individuals and/or groups to further ideological goals stemming from domestic influences, such as those of a political, religious, social, racial, or environmental nature.
International terrorism is what “designated foreign terrorist organizations” do. In moments of extreme cynicism, I often think that definition is very carefully crafted to allow the Central Intelligence Agency not to be the world’s largest terrorist organization in history. Because it’s not foreign, and that definition mates with the “domestic terrorism” so as to again exclude the CIA.
The point is that: words matter. And how we use them matters. If they didn’t matter, we wouldn’t use them, right?
Back to IHL:
What restrictions are there on weapons and tactics?
International humanitarian law prohibits all means and methods of warfare which:
- fail to discriminate between those taking part in the fighting and those, such as civilians,
who are not, the purpose being to protect the civilian population, individual civilians and civilian property;
- cause superfluous injury or unnecessary suffering;
- cause severe or long-term damage to the environment.
Humanitarian law has therefore banned the use of many weapons, including exploding bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines.
Words matter. Are those cluster munitions “war crimes”? You can wander down twisty passages of words until your brain explodes, or you can stick with the clear terms of IHL, using anti-personnel mines is a crime against humanity. Of course it is, it’s impossible to keep noncombatants from being injured by anti-personnel mines. Another related topic is area bombardment. That’s something that powerful states really love doing when they can do it without taking return fire. But the moral dilemma is that often area bombardment is justified because someone bombarded some noncombatants, so then let’s use a thin veneer of “we are trying to hit military targets” to… oh, what a lot of horse poop: bomb the area flat and we’ll call the dead “collateral damage.” In IHL there is no “collateral damage” of course, that’s a term that US policy-makers cooked up to downplay the fact that it was doing World War II style area bombardment in Vietnam and Cambodia. If that wasn’t a crime against humanity, by the way, there is no such thing – yet Henry Kissinger is still lauded as a great statesman and gets public ass kissings from senior members of the US establishment. If one were to describe the accidental dead in the World Trade Center in New York as “collateral damage” I imagine some of you might clench your teeth until your jaw squeaks – but Bin Laden declared war on the US in 1998 [fas] – what if someone gave a war and you didn’t believe in it? Well, of course they are a “terrorist” whereas the CIA and special operators in their black sites were apparently not sneaking about, or something? 9/11 arguably happened in the context of a “declared war”. I am categorically not trying to minimize any of these crimes against humanity; I am trying to illustrate how words are bent and mangled in order to make some things seem more palatable than others, when really none of them should be. I am trying to make the argument that whether a war is “declared” or not is a convenience to the powerful – i.e.: the side most likely to win a war is the side most likely to declare it.
When I speak and write about these issues, I try hard, in my words, to stick to simple concepts. There are no “terrorists”, or “freedom fighters” and I barely acknowledge the existence of states – there are just combatants and noncombatants and their actions are either legal or they are crimes against humanity. Now, some of you are probably thinking “aha! got you! you said ‘legal’!” but I meant legal in the sense of the broader international humanitarian law that was laid down after the Nuremberg Tribunals, in which the nazi brass were variously executed for the crime of “aggressive warfare.” I.e.: “they started it, we finished it.” It’s as close as humanity has come to acknowledging that war is a crime. [For more on this topic I recommend oup Fabre, Lazar et al, The Morality of Defensive Warfare, which makes a good case that using violence to defend oneself is almost as problematic as using violence aggressively] Noncombatants’ actions are always legal, because they are not engaging in violence. Combatants’ actions are extremely problematic, especially when combatants begin killing noncombatants as a matter of operations – then we’re down to arguing whether the death was necessary or justified and that is extremely problematic.
There is also, no “ethnic cleansing.” That’s a term that some US policy-makers cooked up so that they could talk about what was happening in Rwanda without having to invoke the UN Convention on Genocide, which binds signatory nations to do something to stop genocide – so, let’s call it something else. Words matter. It’s why there is lively debate about whether Israel is a democracy, or an apartheid state, or, whatever. That debate serves to make people take a step back and downplay certain actions. Are people being “internally displaced” or maybe “crowd control” or, tant pis, “genocide.” IHL, again seems to be anodyne: there are combatants and there are noncombatants and if combatants are attacking, injuring, killing, dispossessing, and otherwise doing bad stuff to noncombatants, it’s a crime against humanity. That ought to be inarguable, but then we can argue about whether a particular crime against humanity will be punished, or not. That’s another important point because once we start talking about enforcement of crimes against humanity, we have removed our discussion from a moral plane and now we are talking about power. I assume that most of you reading this are aware that the US does not consider itself or its military to be subject to IHL, and has even passed legislation (!) – the American Service Members’ Protection Act [wik] that says the US is authorized to use”
“all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”
Whenever an American talks about respecting international law, remember that the US explicitly holds itself apart and above international law. Because we’re the good guys, or something. You have to be impressed that US establishment will decry Putin for committing “war crimes” when they are one of the greatest exporters of military violence in human history. [I give top place to the British] We should sue Putin for committing “war crimes” because that’s a violation of our trademark, or something. Note: Putin is responsible for crimes against humanity, starting with the crime of launching a war of aggression, which is a crime for which nazi leaders were hanged.
That brings me around to the question of jurisdiction. On one hand, we have what are arguably a set of moral precepts, codified as IHL. On the other, is the question of who and how they are enforced. Usually around now, someone must make a reference to Hobbes’ Leviathan (1651) but I’d like to side-step that as an exegesis of the political power of state authority. In my world-view, it is the antithesis of a search for morality in politics. But Hobbes got one thing apparently right, which is that states respond to power nearly exclusively, and the only way to hold them to any form of standard of behavior is to have a greater power, still, which can spank them if they get out of line. Unfortunately, those who promote the state have done a good job of shunting the dialogue off onto a dead-end track, because the topic of state legitimacy is difficult and, historically, states like Britain (sort of a monarchy/oligarchy) and the US (a slave state, an apartheid state, built on genocide) have an awkward moment when they try on the mantle of non-violent legitimacy.
It’s 130+ pages: International Humanitarian Law
This is hard stuff. Do you think any of it applies to what is going on in Gaza right now?
The 2013 Arms Trade Treaty prohibits a State from authorizing any transfers of conventional arms, their key components and ammunition if it has knowledge that they would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions, attacks directed against civilian objects or civilians protected as such, or other war crimes. It also requires an exporting State to conduct a risk assessment as to whether such weapons or items could be used to commit or facilitate a serious violation of IHL or international human rights law (IHRL). Some methods of warfare are specifically prohibited under treaty and customary IHL, including:
- denying quarter: an adversary’s forces must be given an opportunity to surrender and be taken prisoner;
- pillaging private property;
- starving the civilian population; and
- resorting to perfidy to kill, injure or capture an adversary. Perfidy is defined in Article 37 of Additional Protocol I as“acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence”. This includes, for instance feigning injury or sickness in order to attack an enemy.
The US is providing ammunition to Israel, with absolute certainty that that ammunition will be used in area bombardment. In fact, the bombs currently being dropped on Gaza are probably dropping from US-made F-15s, F-16s, and F-35s. It is undeniable that the area bombardment is directed against civilians in spite of the usual “collateral damage” fig-leaf. Of course none of this excuses the other side, which was firing high explosive rockets in area bombardments of its own.
And so, we come full circle and all we’ve got is finger-pointing. Why bother? Apparently it’s “crimes against humanity season” and the devil is paying the piper, or whatever metaphor you prefer.
Words matter. Right now, a lot of people are working very hard to direct the discussion about what is happening, and they’re pushing whatever agenda suits their pre-determined notion of what is right and what is wrong. In other words, they are trying to justify the actions of one group by using minimizing language regarding the impact of that group’s actions on the other. In the current conflict in Gaza, these excuses manifest in complex ways, but they boil down to noncombatants getting blown to bits, or shot, or tortured, by combatants. Whether those combatants feel that what they are doing is justifiable, or not, we should resist using apologetic language that minimizes the moral fact that crimes against humanity are being done. I could say the same about Ukraine. In fact, I just did. What we are seeing in both these conflicts is the failure of nationalism, and the international system. Nationalism tries to teach us “my country, right or wrong” or, more usually, “my country, always right or at least forgiven.”
This year of conflict is a dry run for how the international system is going to cope with the mass migrations, crop failures, fires and floods brought by climate change. In case you haven’t been watching, the prognosis is not good. Humanity is going to need to work together, but instead we have, well, a massive chunk of the taxes I pay going to the US war machine and not so much toward social services. War, after all, is a continuation of national privilege by other means.
I have been watching the tortured intellectualizing of my fellow liberals, as they try to variously justify Israel’s actions, or the actions of Palestinian resistance, or internationally supported resistance, or whatever. It’s sad, really – it’s pretty easy to be liberal about poor peaceful Ukraine getting invaded by big bad Russia, but suddenly it’s really awkward to try to defend the indefensible. It’s easy to say Russia is doing crimes against humanity (they are!) when they do area bombardment in Ukraine, but it’s a bit awkward when Hamas launches area bombardments, and Israel retaliates with area bombardments. My mother used to ask me “if all your friends were jumping off a cliff, would you jump too?” and that’s pretty much the scenario, here. Nationalism leads us inevitably toward “my country, always right or at least forgiven” because that is what nationalism is – that is how nationalism works. We’re not talking about a bunch of sports teams that we’re cheering on because we like the goalie, we’re talking about rooms full of very powerful dishonest men who decide that as a matter of public policy they’re going to get some motherfuckers killed. You’re notice that it’s hardly ever them, or their families in the line of fire. If you want to see the most horrendous violence imaginable, threaten a politician or their family with violence and see what happens. In fact, most politicians seem to be happy to kill you simply for threatening their career.
All war is war crime.
I have to say I am really disappointed. Perhaps my memory is failing but I seemed to recall that IHL was very clear and concise and written in terms of conflict, noncombatants, and combatants. It seemed to draw sharp lines and then said that it’s the responsibility of the combatant to only fight other combatants and to minimize other destruction. But, when I started re-reading the IHL, it was disappointingly full of old world concepts like Jus In Bello, etc. All the Augustinian bullshit. You know, christians talk about how they have all these moral precepts from god, but then cheerfully ignore them as soon as there’s someone that needs a good old-fashioned fucking up. When I was a kid, I don’t recall a particular moment when I realized that religion was bullshit, but I remember when I realized that nationalism was bullshit. It was when the US was flying B-52 loads of bombs and dropping them in Vietnam and Cambodia and complaining that the Vietcong fought like cowards. All I could think was “wait, who are the cowards? Seems like the guys who are struggling to survive arclight strikes are pretty damn brave.”
Mostly, I find I’ve lost whatever respect I might have had for about half of the liberals on Daily Kos. Because there’s a rush to take sides – a rush which ignores the obvious fact that both sides are wrong. Sure, there are a few people who say “it’s all wrong” but then blurt out “… but so and so started it.”
To those who are interested in the conflict in the Levant, I recommend Tim Snyder’s “Bloodlands, Europe between Stalin and Hitler” [amz] which goes into a gruesome amount of the history of how power politics and racism turned Europe into a wasteland for Jews, which led to mass migration. And, Collins and LaPierre’s “O Jerusalem” [amz] which is an eye-opening account of zionism and the founding of Israel. Neither book is fun reading but both are fascinating. Those books together profoundly influenced my formation of my opinion about Israel, which I won’t burden you with.