Air University Review, March-April 1984
*This article is the author's revision of the annual War Studies Lecture at King's College, University of London, which he presented in March 1983.
THE concept of "the civilian" as someone essentially other than the combatant, invented by the European founders of the international law of war in the course of the seventeenth and eighteenth centuries, has ever since then held a fixed lodging in all thought and writing about war, especially in what is thought and written about the ethics and the international law of war. But times change, and the meanings of words change with them. We go on using the same words, but they may not mean what they once did. They can even be made to mean whatever designing parties want them to mean. Consider peace, for instance, a word from the same family as civilians. What peace means in Washington or London now is not at all what it means in Moscow; yet London's and Washington's meaning has more in common with Moscow's than either has with what peace meant in Hitler's Germany and George Orwell's Oceania, where, it may be recalled, one of the three slogans of The Party was: "War Is Peace."
Our concept of the civilian cannot be said to have gone as far across the spectrum as that, but it has certainly moved a long way from where it began. Limited warfare allowed the civilian a good deal of immunity in the eighteenth and nineteenth centuries, and it can still do so. The South Atlantic war of 1982 offers a striking example: only three civilians lost their lives in the Falklands. The civilian does not normally escape so lightly. Indeed, it is a notorious fact about twentieth-century war that civilians suffer very badly in them. The contemporary civilian goes under the same name as the person for whose partial benefit the men who forged our international law of war proclaimed that war--if it was to be a political instrument which ethical-minded men could handle without shame--must control its violence and set itself limits. It was he, the civilian, and all he stood for, that chiefly gave men heart to grapple with the paradox of preserving standards of common humanity in circumstances of war. However, the application of that principle to those we still call civilians has become problematical, and that paradox twice as paradoxical. The purpose of this article is to display the extent of those problems and consider what can be done--and, indeed, what is being done--to resolve them.
The civilian became the living reminder to our Western heritage on its bellicose side that war was not the main purpose for which men were born and brought together; he was not so from the start. The heroes, warriors, and righteous rulers who figure so prominently in our collective early years did not normally know any principle of respect for what we would call a civilian, anymore than they could have understood a scale of values placing peace above war. But the men of war did not have it all their own way. They learned early to coexist with the men of peace, to exchange roles with them, and to pay homage to the idea of peace, recognizing that peace, not war, was the professed ideal of their society, their culture, and their church. Christian charity joined Roman jurisprudence to proclaim that the maintenance of peace was a higher achievement, all human things considered, than the waging of war and that the latter was to be done only in pursuit of the former. In this long process of moderating wars, the civilian emerged as the embodiment of the values of peace, and the field of civilianness became understood by the juridical expositors, the Publicists of the eighteenth and nineteenth centuries, to cover not only those whose nature was noncombatant and those whose function was noncombatant but also those who were de facto noncombatant at any particular wartime moment even though their normal nature and function were otherwise.
While the interests of the civilian were being thus served by this pleasing movement that optimistic contemporaries liked to describe as the civilizing and even humanizing of war, other things were happening that would pull in the opposite direction; and the civilian himself, oddly enough, was helping with the pulling. Another dimension was thus added to the paradox noted earlier. The civilian could he perceived as adding to the difficulties of upholding the protections patiently erected on his behalf; how serious was he about peace and protection? To preserve some values of common humanity in warfare was difficult enough, but to preserve it without the wholehearted support of the class of persons on whose particular behalf the endeavor was launched has proved very difficult indeed and still proves so.
The difficulty can be elucidated under three categories. The first is simply that of industrial growth. The making of war, like the making of everything else, was to be revolutionized by industrial growth. What it did to the civilian in relation to war was to make him more integrally involved in war and more essential to it than had ever seemed possible before. As the technical requirements of war multiplied and the proportion of a national economy necessary for the waging of industrially backed war increased, the civilians who met those requirements and sustained that economy were also bound to become involved in what our century has come to call "the national war effort." Neither principle nor practice but simply scale was new here. Aside from attempts by Germany and the United Kingdom to starve each other out, the First World War saw unprecedentedly earnest endeavors by one belligerent to bring the other's industrial economy to collapse. The Second World War saw, besides renewed readiness to use the weapon of starvation, a more nearly successful endeavor to wreck the enemy's industrial economy, not by blockade from the sea but by bombing from the air. The civilian, needless to say, suffered much from both experiences. But concern and compassion for civilian sufferings were now to some extent lessened by the drawing of parallels between fighting front and home front, front line and production line. Some jurists between the wars accordingly invented a new legal person, the quasicombatant, away from whom some proportion of legal protection was thought fit to be taken. Defining that proportion, however, proved difficult, and the blurring of the clear old distinction seemed to most jurists and war moralists self-destructive.1 That such an awkward hybrid should have been proposed at all was the significant thing. The civilian, by no will of his own, had got into a position where his inviolability in wartime was with some show of reason questionable.
The second category of new civilian violability could more plausibly be laid at the civilian's door, inasmuch as it was part and parcel of democratic politics. The replacement of more or less unrepresentative old regimes by apparently more representative new ones was accompanied on the military sides by direct involvement of the people at large in national war efforts under the banner of "The Nation in Arms." The particular significance of this for our civilian was not that he was now more likely to be conscripted for military service (though he was); rather, it was that he was affirmed to have as much of a moral commitment to war as the military, that the will to fight was attributed to the whole political nation, and that at least some part of the exhilaration proper to a happy warrior was made available to the people at large. To proclaim "The Nation in Arms" was in effect to assert as a political reality that general civilian involvement which was in due course to become an economic reality as well. These two streams of civilian involvement, of course, merged easily enough once the social and economic circumstances were right, and it is worth observing that the political, the avowedly democratic, stream did not run through liberal parliamentary channels alone. "The Nation in Arms" was equally attractive to those who preferred a more forcible word--to national leaderships we have learned to label as plebiscitary dictatorships and totalitarian democracies. "Total war" became the description most often given to the kind of war now envisaged, and there was really not much practical difference between the degrees of civilian participation in it claimed by liberal democrats and by totalitarian ones. On both sides, national spirit or will power was presented as the dynamo of belligerent capability and the breaking of it became a primary military objective. Thus was the civilian willy-nilly hauled into the front line with this embarrassing suspicion now hanging over him, that in many respects he seemed to have gone there voluntarily.
The third heading under which erosion of the inviolability of the civilian is to be found is that of civil and revolutionary war. This compounds the ethical problems already present in all questions of war and peace because obedience to governments has for centuries been an ethical norm in European political philosophy. Political philosophy took governments no less seriously on the international side of their existence. International law recognized governments and no other persons (that was precisely the term used: "legal persons") because nothing else was imaginable in their absence but international anarchy. The international law of war was made for them and for the fighting men organized beneath their banners. Its purpose was to regulate their conflicts with one another, to turning them into ethically and legally moderated wars that self-respecting, decent men could engage in without remorse. No international jurist before the twentieth century dreamed of extending that regime of moderation into the realm of civil war, because to do so was felt to be a contradiction in terms. Law was something that civilized states existed to enforce within their own frontiers and to observe in their own dealings with one another, but not something that subjects in armed revolt against their normal lawgiver could claim the benefit of. Two exceptions were admitted to this general rule. Belligerents in civil wars might agree among themselves to observe the rules of international wars, and what began as a rebellion and continued as a civil war could become recognized by everyone else as, for all practical and legal purposes, an international war. But such exceptions were not felt, before the turn of this century, to pose any threat to the all-important rule, that the law of war was international law, that government was government, rebels were traitors, and civilians had to be extra careful if they did not wish to have their status misunderstood.
But what was their status? And who were they anyway? This brings us to the problem of fact which was, and always has been, so awkward in respect of revolutionary/counterinsurgency war: it offers the civilian none of the relatively easy means of identifying himself that he could hope for in straight international war. Active insurgents have often resembled the noninsurgent civil population from which they arise and in whose name they insurge. Whether insurgents are concerned about the consequences of this for civilians or not, the consequences usually turn out to be disagreeable. The civilian or the would-be civilian finds himself preyed on, suspected, and victimized by both sides, pushed and pulled between them until he is driven to take one side or the other; after which, he takes the consequences. Modern revolutionary warfare has proved very difficult to keep out of. International law took it for granted that civilians espoused a side to the dispute--how could they not, when their governments were belligerent?--but difficulties were not thereby placed in the path of sparing them. The case of civil and revolutionary war was and is quite otherwise. Most civilians in such wars do not enter the war with their allegiance determined; they have to decide which side to be on--or have the decision made for them. Driven by the political logic of their situations to claim that they have the bulk of the people behind them, both sides are driven by military logic to make sure that they really do. Dispassionate observers and historians of such wars are often driven to wonder to what extent their followers are willing or forced. The fact is that in revolutionary war the civilian, as I have noted, can hardly be said to exist, and most international lawyers of the nineteenth or early twentieth centuries would not have been willing to waste time looking for him. But most of them now are willing to do that.
BY the end of the Second World War, humankind had supped full of horrors, and its spokesmen were demanding that nothing of the sort should happen again. The governments of the victorious coalition were ready enough to undertake such unprecedented acts of legislation and judgment as should meet the demand. A common and dominant element throughout was redress of wrongs perceived to have been done to civilians. Military personnel had suffered badly enough during the war but more from neglect or perversion of existing international law than from the lack of it. For the wretched civilian, there simply was very little in existence to which he could appeal in wartime, and none at all out of it. To protect the civilian in peacetime, a new international regime of human rights was promulgated, to which optimists hoped individual states and regional organizations would in due course commit themselves. To protect the civilian better in time of war, certain relevant elements of preexistent law were clarified and confirmed in the so-called Nuremberg Principles, while the Geneva branch of that law, already quite extensive in the Conventions of 1929, sprouted a new Convention expressly designed for the protection of the civilian alone.
The international law of war as affirmed and developed during the five years immediately following the Second World War is, strictly speaking, the international law of war under which we live still; and scrutiny of the giant problems that the civilian nevertheless still faces could now begin, were it not necessary to make one significant proviso. This body of law is likely soon to be developed again by certain Additional Protocols formulated in 1977 by a diplomatic conference in Geneva and presently awaiting legislative attention in the United Kingdom and the United States.2 These Protocols by no means replace or supersede the 1949 Conventions; they are additional to those Conventions. They clarify and amplify items contained therein, and they add things that are not. But they do contain and share a feature that dramatically distinguishes them from the earlier phases of the law of war. They mention "war" as little as possible, referring instead to "armed conflict." In the Protocols, indeed, the word war occurs only as an inseparable part of the technical term prisoners of war. This process of substitution of "armed conflict" for war was begun and carried far already in 1949 because it was then felt desirable, by the great majority of states represented at the Convention-making conference, to make the protections operational whenever a war was going on in all but name. The British government of the later 1940s did not like this change and sought to thwart it, believing that it introduced uncertainties where previously all had been clear. But the United Kingdom, arguing thus, found itself the odd man out at Geneva. The continental European countries had burned into their collective consciousness all too clear a memory of how the Axis powers so recently in military occupation of their lands had strictly and narrowly construed their legal obligations with a view to evading any that could not be said to arise from international war and nothing else; and the United States and the Soviet Union, for quite separate reasons, sided with them. The old law of war thus became our contemporary law of armed conflict, and the civilian especially was expected to benefit.
Has the civilian in fact benefited? Let us examine the facts of his most difficult situations in contemporary warfare: first, when he finds himself caught up in fighting on land. Everything seems to have been done that can be done to maximize the civilian's chances of survival while battle in the old classic sense is going on in his vicinity--battle between so-called conventional armed forces. The law of war has never been able to offer much besides commiseration to civilians who happened to be in the wrong place at the wrong time. Civilian immunity from attack has as its ideal corollary civilian immunity from the necessary effects and accompaniments of attack, which always include accidents and errors. Ideally this requires civilian separateness from the battlefield. The idea is not as simple-minded as it may sound. Every commander of a besieged place who has ever tried to negotiate safe passage for his civilians through enemy lines has sought to implement this idea. So has every country that has taken the precaution of evacuating parts of the civilian population from close proximity to military targets inviting bombardment. If civilians cannot be protected in one place, and if that place cannot be convincingly demilitarized, then they should be moved to another place where they can be protected.
The logic of this argument has always appealed particularly to the body internationally accepted as having a special role respecting the law of armed conflicts, that unique nongovernmental organization, the International Committee of the Red Cross. Entrusted with the working and upkeep of the Geneva Conventions, it has sought through the past half-century to incorporate in Geneva law provision for the establishment, preferably well inadvance of hostilities, of civilian safety zones and has striven during hostilities to set them up ad hoc.3 Provisions for such zones under one name or another are contained in the Conventions of 1949 and the Protocols of 1977, and it is possible that in certain circumstances more might be done with them than so far has been done.4 Otherwise, the law offers the civilian in the midst or wake of battle only improved definitions of the rules whose observance should help him, and palliatives for his plight in case they do not. The civilian stands defined as never before, and his immunity from attack (so long, of course, as he remains perceptibly noncombatant) is reaffirmed.5 Attackers--whether would be or might-be--are for the first time in international instruments of this supreme status provided with terse reminders of the precautions they must take and the sense of proportion they must keep in order to minimize risk to civilians when legitimate military attacks are being made--precautions arid proportions which, being no more than what decent and lawminded commanders bear in mind anyway, are naturally assimilable into military training and are, in fact, already systematically worked into that of British and American armed forces.6
After the battle is over and one side victorious, it is time to consider the aftermath as it takes shape for the civilians of the side so far defeated. Military occupation is its likeliest name. Civilians suffered terribly from the military occupation of their countries during the Second World War, and even worse things have happened to them in some of the wars that have taken place since then. The Conventions arid the Protocols are therefore replete with provisions for the protection of the civilian once his own government is no longer able to provide that protection and for the security of his means of survival, the maintenance of essential services, and the protection of the medical, civil defense, and emergency-relief personnel who should be there to look after him. If his lot is to share with persons caught at the outbreak of hostilities as aliens in enemy territory the more confined condition of internment, then a full regime for the decent conduct of internment camps is prescribed, exactly analogous to that already achieved for camps of prisoners of war. My studies to date of the history of the civilian convention have revealed no dissent from the view which certainly prevailed at Geneva in 1949, that if something like it had already been enacted before the 1939-45 war began, much of the wartime suffering experienced by civilians would have been avoided.
In this scenario so far, the civilian we have been imagining has been entirely passive under military occupation. He has presented the occupier no difficulties, no problems; and the occupier, we assume, has for his part been entirely benevolent, even anxiously law-abiding. Let us now change the scene to what corresponds more closely to facts on the ground and consider the case of an occupied country by no means passive under the yoke and an occupier consequently less benevolent than he might have been. The problem that remains to be considered can be divided into two branches: First, can the civilian put up any sort of resistance at all without forfeiting his protected status? And second, how much is his actual situation likely to be jeopardized by the violent resistance of others on his behalf?
The first question is a good deal more comfortable to answer than the second, although the status of civilian resisters did not acquire any sort of clarity until after the Second World War, and, indeed, it still has something of the Cheshire cat about it. The fact is that until the First World War and its revelations of how much civilians could suffer under unregulated military occupation, the international law of war was frozen into an assumption of civilians' duty of passive acquiescence. It was on the side of the occupier to the extent of branding departures from that duty by such memorable and tremendous terms as war treason and war rebellion. Reflection on the grim experience of 1914-18 worked on the iceberg between the wars but had thawed no part of it before the grimmer experiences of 1939-45 immolated a much larger number of civilian war victims. Both case law and conventional law in the later 1940s did much to vindicate such civilian resistance as had then been made to the occupier. Some of it had claimed to be lawful according to the Hague regulations. Courageous officials of certain occupied countries, for instance, had dared to challenge the legality of certain of the occupier's laws and orders. The Norwegian teachers' organization and similar well-prepared bodies actually achieved some success in persuading the occupier to modify his demands into greater conformity to what international law allowed. This was admittedly an extreme and unrepresentative case, there being no country in Nazi-occupied Europe where the Nazis were more ready to go softly-softly with a restive population. Something of the same sort happened in the Israeli-occupied West Bank in 1967, which again--at that date, anyway--may be discounted by the skeptic as peculiar. No doubt civil resistance against occupiers is a ticklish business, and civilians who "push their luck" against any but the mildest of occupiers are asking for trouble.
But the trouble they can encounter at the hands of a power that cares anything at all about its international legal obligations is by now quite well defined. The means that may be used to punish resisting civilians are no more unlimited than the means that may be used to injure enemy combatants. We may look forward to clarifying our perceptions of them with the aid of a text soon to appear in book form from the hand of Adam Roberts, Reader in International Relations at Oxford, a scholar who is making this field of the international law on military occupations and resistance all his own. Civil resistance, he plainly shows, can no longer be considered as it once was, an offense against international law, nor dare a law-regarding occupier any longer dismiss it as if it were. Civil resisters by disobedience and noncooperation necessarily invite punishment, but what the occupier may lawfully do is determined quite precisely by the protections given to the civilian by the Fourth Geneva Convention (and by Article 75 of the First Additional Protocol). The death penalty is not to be inflicted on civilians except for violent offenses, spying, or serious and death-causing sabotage. Civilians, individually or collectively, may not be the subject of reprisals or be taken as hostage. If arrested, they must not be maltreated in any of the ways (torture, corporal punishment, mutilation, etc.) listed in those treaties. They must not be punished except after fair trial. None of this is to deny the military occupier's belligerent right to ensure his security or decent means of maintaining it. Roberts's summary of this difficult and dilemma-fraught subject does it admirable justice:
For better or worse, the rules of international law relating to occupations are not just rules for military occupation, but also rules for alleviating the effects of such friction and conflict as almost inevitably occurs between occupation forces on the one hand and participants in resistance, including civil resistance, on the other.
The words friction or conflict clearly suggest some difference on the scale of intensity, but conflict on its own seems hardly enough to characterize what may be found at the other pole of the genuine civilians' experience of military occupation: the kind of armed conflict that develops when an occupying or would-be occupying army meets resistance from guerrilla fighters. The terrible facts about this kind of warfare have become sufficiently familiar to our generation to need no further comment. What is surely by no means so well known is the extent to which international law has quite recently been developed with a view to making such facts less so.
The old law of war was, for mixed reasons, slow to recognize the guerrilla. The guerrilla tended to make himself indistinguishable from the civilian, and the respectable soldier ran into difficulties when he attempted to distinguish between the two. There was also the unmistakable tendency of guerrilla warfare to partake of the character of banditry, rebellion, and general intranational mayhem. What soldiers could do to one another was nothing compared to what civilians could do to one another, and self-respecting military men could be forgiven for noting the contrast with some complacency. More self-serving was the moral superiority implicitly claimed by governments and their armies, as if their own uses of force for the alleged good of the people placed in their charge were above criticism. Nasty truths about the actual performance of most governments and armies were well enough known in most parts of the world before their moral bluff was called by the Second World War's display of the atrocious propensities of certain supposedly exemplary armed forces. No one in even the most "advanced" countries of the world could henceforth allege that guerrillas and rebels had a monopoly of atrocity; neither has anything that has happened in the world since then made that allegation more plausible. Contemporary development of international law, therefore, has included various levels of recognition of the legitimacy of causes for which guerrilla fighting may be undertaken and has taken the guerrilla himself into its ample bosom.
But into that bosom the civilian has also been taken. How can the two proceed together? May those giant changes that have been made in the law since 1945 be expected to moderate the normal rages of guerrilla warfare--especially when it is also civil and revolutionary?
The rules of conduct and combat laid down in the Protocol for the guerrilla who seeks to maintain the status of a lawful combatant (and thus to benefit from the protections of the Geneva Conventions) allow him to behave and look more like a civilian than ever before.7 The great majority of governments participating in the diplomatic conference that produced the Protocol agreed that the well-meaning guerrilla fighting in a good cause did not stand a fair chance unless the law was thus extended toward him. At the same time, the distinction between civilian and combatant was carefully preserved. Nothing has been put into the Protocol that could jeopardize the civilian's protected status. On the contrary, the classic rules are stoutly restated. The civilian must not be made the object of attack by either side.8 The terrorizing of civilians is particularly condemned, no matter who does it.9 Civilian presence must not be used to cover military purposes.10 It is declared to be perfidious (the law of war's ultimate sin) for a combatant to "feign civilian, non-combatant status."11 And yet guerrillas are expressly required to distinguish themselves from the civilian population only when "engaged in an attack or in a military operation preparatory to an attack."12 This is to put the law of guerrilla warfare onto a knife-edge of delicacy. Given the legitimacy that guerrilla operations undoubtedly have, the law has had to give them fair recognition. But the civilian's margin of safety in such circumstances has shrunk a good deal. More than usual goodwill and unusual degrees of political prudence seem required on both sides if the civilian's last state is not to be worse than his first.
Exactly how nations will incorporate these changes in the international law of armed conflicts into their own programs of military and civic instruction remains to be seen. Subscription to the Geneva Conventions and the Protocols includes various undertakings to make them widely known.13 To what extent governments have so far taken those undertakings seriously is a matter into which we need not inquire now. But it is clearly a matter of plain self-interest for prospective civilians to understand well in advance what their legal status will be in any international armed conflict that may engulf them and what protections the law offers them if they observe that protection. Such clarity of understanding is all the more important in an age of national wars and people's wars. Countries that have always allowed for some amount of guerrilla fighting in their defense plans will approach these problems with clearer minds than those to whose military cultures guerrilla operations seem a malodorous exotic. For example, the proportion of civilians as we have been conceiving of them will be relatively reduced in Yugoslavia and Romania where highly visible preparations are made for massive popular resistance; all such resisters are constitutionally proclaimed members of the official armed forces and thus, presumably, privileged combatants according to the Geneva Conventions. That is one method, short and easy, to solve the problem of the civilian. But for other countries where the civilian may not wish such rhetoric to be taken so literally, his safer way appears to be perfect knowledge of and punctilious observance of the law. He may patriotically preach "victory or death," but the would be ill-advised, in the presence of the foreign enemy, to practice it.
Such are the hopes and fears that may be expressed about the survivability of the civilian in international war on land. Hopes rest on the supposition that he is willing to be and physically can be distinguished from the armed forces. Fears enter in the event that he cannot. The borderlands of fact and law, so far only intermittently obscured by patches of mist, now become subject to thick and lasting fog. Separability of civilian from combatant can prove physically almost impossible. It approaches being so wherever total national defense preparations fail to provide for the protection of such civilians as must be quite beyond combatant participation: those nursing mothers and young children, cripples and greybeards who regularly form the irreducible residue of, so to speak, arch-civilians whenever the civilian category comes under critical scrutiny. Separability becomes wholly impossible when pressure of circumstances produces as military-ridden a national community as, for instance, the Palestinians turned out to be in some of those parts of Lebanon which Israel's armed forces invaded in 1982, or when government's response to widespread popular insurgence is to compel the militarization in one way or another of all the subjects it means to hold in its grasp. Exceptional circumstances can create exceptional communities within which the word civilian, though, of course, it continues to be used, must mean something very different from whatever it can mean among peoples less unhappily situated.
To mention Lebanon is to enter an area strewn with legal as well as material mines and booby traps, Within its last ten dreadful years every species of armed conflict from whose unregulated conduct the wretched civilian can suffer has been identifiable in Lebanon, the international species being only one of them. Everything said so far has been about the civilian in international armed conflict, to which the First Protocol of 1977 and all but one article of the 1949 Geneva Conventions apply. The noninternational species are much more lightly provided for by the much shorter Second Protocol and by an article common to all four Conventions, Article 3. Those provisions claim for the person taking no active part in hostilities and, for civilians generally, elementary humanitarian protections. They also (through Article 3) invite the parties to the conflict to conduct it by Geneva rules even though they are not legally bound to do so. Their success in moderating internal conflicts has been limited partly by the fact that parties to civil and revolutionary war generally find it more difficult to recognize the civilian than international parties do, often because they refuse on principle to believe that there is any such person. It needs a resolutely humane revolutionary or counterrevolutionary to feel obliged to jeopardize the success of his cause in order not to hurt civilians perceived as being on the enemy side. More familiar is the sort of revolutionary or counterinsurgent who has no perception at all (except for propaganda purposes) of the civilian in such a struggle. Prudence may incline him to hold his violent hand, but principle will not. If that enemy civilian holds any place at all in his side's power structure, the contemporary conductor of revolutionary or counterinsurgency conflict is likely to regard him simply as an enemy and to do him violence accordingly. Only where civil/revolutionary war is an incident of an otherwise unmistakable international war can the whole weight of international law be brought to bear.
When that clear and dominant international character is not present, the law has no louder voice than common Article 3 gives it and the ever-resourceful International Committee of the Red Cross can amplify it. Revolutionary and counterinsurgency parties therefore find themselves in a vicious bind, whether they like it or not; and the civilian suffers most from it. Each belligerent party is likely to find it difficult to translate the idea of the civilian into acceptably recognizable terms, and if one of them is nevertheless so decent as to try to do so while the other does not, he may complain that the other is using a double standard. This makes a peculiar difficulty, perhaps not wholly foreseen by the humanitarians who pressed so hard for the law's extension into international wars. Revolutionaries and the regimes they are fighting are not accustomed to accept what belligerents under the classic law of war have long learned to accept, that the classic rules and principles have a chance to work only when detached from the rights and wrongs of the struggle, whatever they may be. A writer who has recently paid meticulous attention to this problem, Professor William V. O'Brien of Georgetown University, admits in his important recent book The Conduct of Just and Limited War (1981) that he finds the double standard hard to stomach. He complains of it as "a kind of revolutionary 'wild card' that runs throughout the intersections of the international system."14 But why does he write as if only revolutionaries played it? Don't counterrevolutionaries play it, too?
Not so insuperable but more enormous is the other great fieldof civilian risk: risk from the air. In this respect international legislation has recently caught up on a lot of lost time. Air power developed so quickly after 1907 that the law had great difficulty in keeping up with it. It therefore remained in the relatively undeveloped form of general principles, while the laws of land and sea war progressed from the same basic principles into specific prohibitions and restraints.15 World War II opened with some such rules in draft form only;16 it ended with such neglect of prohibitions and restraints by the victorious powers that further work on them was delayed by a generation. Nothing of any importance in the legislation of the later 1940s bears on how aerial bombardment may be conducted; however, a great deal of the 1977 Protocol does. It has, of course, no retrospective effect, as some "Nuremberg law" had to have, but it does confirm what much juridical opinion had always maintained: that indiscriminate and terror bombing are unlawful and that civilian deaths and damage, so far as they are unavoidable as corollaries to attacks on military targets, can be justified only by the rule of proportionality and after the taking of such precautions as will minimize civilian risk.17 Military targets are realistically defined;18 proportionality and precautions are simply spelled out. Nothing here inhibits the use of bombing to achieve real military advantage. Much, however, reminds us how many civilians have died in the wars of our century because of bombings done for no real or proportionate military advantage.
The plain purpose of this definition in this Protocol must be to protect civilians by reminding combatants that the only enemies they need attack are each other and, by logical extension, each other's means of fighting back. To eliminate enemy combatants and deprive them of the means of eliminating you is to gain military advantage in its most definite and pure form. But military advantage is capable of more political construction. Is it not gaining a definite military advantage, for example, to hasten a militarily defeated enemy's progress to the negotiating table--even, supposing him to be given to duplicity and prevarication, to keep him there and concentrate his mind to the point of signing on the dotted line? Many readers will recognize the historical instances I have in mind: the 1945 bombings of Japan and the 1972 Linebacker bombings of North Vietnam. Neither of them did significant damage to material war-making capacity, which in both cases had already been brought as low as aerial and maritime superiority could batter and blockade it. Instead, these bombings had purposes that can certainly be called political but which were military too, if an earlier instead of a later end to slaughter and conclusion of a cease-fire may be so understood. It seems difficult to deny that, although the termination of a war may have a definite political purpose, it can also be called a definite military advantage.
This point has been insistently argued with reference to the 1972 bombings by W. Hays Parks, Chief, International Law Branch, International Affairs Division, in the Office of the Judge Advocate General of the Army, Washington, D.C.19 Those bombings were not like the bombings of the Japanese cities in 1945, which were either indiscriminate or "area" in character. Rather, they were carefully planned and meticulously carried out as circumstances permitted. The United States by this stage of its Vietnam agony had long gotten over its early cavalier approach to the law of war. The Air Force was used in a strictly law-abiding manner. There was nothing indiscriminate or "area" about these raids. If death and destruction occurred beyond and besides the military targets actually aimed at, that is bound to happen in war. The targets were bona fide military ones, and they were attacked with singular intensity. Over twelve successive days, the B-52s reminded the North Vietnamese government of what Washington thought it was forgetting: that although the United States wished to withdraw from the conflict, it nevertheless had enormous firepower at its disposal and was willing to use it. North Vietnam, it is argued, got the message. A legitimate politico-military purpose was achieved in the most lawful possible way, even as it might be under the First Protocol of 1977. The targets aimed at were not all of the first importance--how could they be, when most military targets of the first importance had been bombed to bits already?--but "in the circumstances ruling at the time" (i.e., North Vietnam's dragging its negotiating feet) "their destruction . . . offered a definite military advantage."20
The matter can, however, be looked at differently. George Quester, for instance, has suggested that it was not so much the military destruction that reconcentrated the minds of Hanoi as the awesome display of military might that produced it,21 and by implication the questions follow: What if there should be not even the most trifling of military objectives left to bomb, and still the enemy government refused to come to terms? Is there any point down this strictly law-regarding road at which the civilian himself could become, for political reasons, a military objective?
This article has sought to sketch the law's provisions for the protection of the civilian in time of war. They are copious and detailed and go as far, one might think, as law can go. Perhaps they go even further. In some of the more extreme situations in which the civilian may find himself, the law on the conduct of war may become unable to help him or may even, strictly construed, become an additional instrument of his torment. It is therefore wise to recall in conclusion that these parts of international law are only half of the whole. Besides the law regarding the conduct of war, the classic jus in bello, there is also the jus ad bellum, the law about going to war in the first place or continuing in it once it has, perhaps, gone wrong. Ethics marches through both halves of the law of war and has as much to say about the one as the other. What it keeps saying, to my ear anyway, is: Discriminate. Cling to the principle of discrimination. It is precious and crucial. Its latest legal form, the 1977 Protocol, has had to recognize that a bit of it has gone.22 One can understand why. The circumstances of twentieth-century warfare have driven the law formally to concede that discrimination may have to be relative and proportionate. But from an ethical point of view, that concession must be regarded as reluctant and mistrustful. The means of achieving even apparently good ends can be so beastly as to spoil the end itself. The principles of discrimination between the real civilian and the real combatant remain crucial to a morally acceptable law of war. If war became morally bearable only because it could at least be discriminating, does it remain morally bearable past the point where it cannot be? And with an eye particularly to the civilian, whom the law knows by only the simplest test, should ethics complement it by inviting distinction between civilians who may with some truth be said to have brought war upon themselves and civilians upon whom war comes more like a hurricane from afar?
University of Sussex, England
Notes
1. This episode, which merits further inquiry, is covered by William O'Brien in The Conduct of Just and Limited War (New York, 1981), pp. 46-49.
2. They are given with appropriate commentary in Adam Roberts and Richard Guelff, Documents on the Laws of War (Oxford, 1982), items 26 and 27, pp. 387-461; also in Dietrich Schindler and Jim Toman, The Laws of Armed Conflicts, Second Edition (Alphen and Rockville, Maryland, 1981), items 48 and 49, pp. 551-629.
3. Sydney D. Bailey, "Nonmilitary Areas in U.N. Practice" in 74 American Journal of International Law, 1980, pp. 499-529, offers a convenient summary.
4. First Geneva Convention of 1949, Article 23: Fourth Convention, Articles 14 and 15; First Additional Protocol of 1977, Articles 59 and 60.
5. First Additional Protocol, Articles 50 and 51.
6. The fourth chapter of the First Additional Protocol is devoted to "Precautions in Attack" (Article 57) and "Precautions against the Effects of Attacks" (Article 58).
7. Third Convention, Article 4. The extensions in the First Protocol, not so obvious, but nonetheless momentous, will be apparent to any careful reader of Article 1 (4) and Articles 43 and 44.
8. Article 51 (2), "The civilian population as such, as well as individual civilians, shall not be the object of attack." Also Article 57 (5)
9. Article 51 (2), "Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited."
10. Article 51 (7) and by obvious implication, Article 58.
11. Article 37 (1) (c),
12. Article 44 (3).
13. The Four Conventions, respectively Article 47, 48, 127, and 144; First Protocol, Article 83.
14. O' Brien, p. 336,
15. The reference in particular is to the Hague Land Warfare Regulations, annexed to the Fourth Hague Convention of 1907, and to the similarly well-developed body of customary rules for naval warfare, which nearly acquired conventional status in 1909. A historical sketch of these matters is given in Geoffrey Best, Humanity in Warfare (London and New York, 1980), chapter 3.
16. The Hague Draft Rules of Aerial Warfare, 1923 (in Roberts and Guelff, item 13; Schindler and Toman, item 19).
17. Indiscriminate attacks of every kind are prohibited in Article 51 (4, 5). For the prohibition of terror attacks, see note 9; and for precautions and proportionality, Article 57, read together with Article 51 (5).
18. The definition of military objectives in Article 52 (2) demands quotation in full: "Insofar as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."
19. W. Hays Parks, "Linebacker and the Law of War," in Air University Review (January-February 1983), pp. 2-30. See also, for the same argument in long-term perspective, Parks's article "Conventional Aerial Bombardment and the Law of War," United States Naval Institute Proceedings, May 1982, pp. 98-117.
20. Expressions from the definition are reproduced in full in note 18.
21. George H. Quester, "The Impact of Strategic Air Warfare," Armed Forces and Society, Winter 1978, pp. 179-206 at 190-91, 197-98.
22. Simply in its formalization of a rule of proportionality to permit "incidental loss of human life, injury to civilians, damage to civilian objects, or a combination thereof" which is not "excessive in relation to the concrete and direct military advantage anticipated." Article 2 (2) generally.
Contributor
Geoffrey Best (M.A., Ph.D., University of Cambridge, United Kingdom) is Honorary Professor of History at Sussex University and Fellow of the Center for International Studies, London School of Economics. His previous positions include Lecturer at the University of Cambridge, Sir Richard Lodge Professor of History at the University of Edinburgh, and Fellow of the Woodrow Wilson Center, Washington, D.C. Dr. Best was the editor of The War and Society Newsletter from 1974 to 1983. His books include Humanity in Warfare: A Modern History of the International Law of Armed Conflicts (1980), War and Society in Revolutionary Europe, 1770-1870 (1982), and Honour among Men and Nations (1982).
Disclaimer
The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.
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