Post No.: 0691
Furrywisepuppy says:
In war, attacks on civilians or civilian objects are prohibited even when carried out as reprisals (revenge). A tit-for-tat response to a prior violation of IHL by the enemy (e.g. ‘you’ve slain my civilians unlawfully hence I will slay your civilians in a similar manner’) is prohibited. Such retaliatory justice can be easily abused and can escalate the violence because each side will start to accuse the other of having committed the first breach of law or for having reacted in a disproportionate way, due to everybody’s inherent biases in the perception of events.
This post continues on our thread on International Humanitarian Law (IHL) last visited in Post No.: 0679, which examined a compressed overview of the Hague Conventions. You may need to follow this thread to understand some terminology specific to this subject.
Some argue that vengeful justice can be a way to coerce a violating party into complying with IHL though, especially because there is typically a lack of other effective ways to do so. (As a metaphor, parents have the power to take a toy away from a sibling who won’t play fairly according to the rules, rather than leave the other sibling to need to play dirty too. But because there doesn’t seem to be a god who acts like a good parent who intervenes and arbitrates during times of war – violence between groups is frequently the only way to persuade some groups.) Capturing and prosecuting war criminals afterwards is a bit too late for the innocent victims. (Like hell is similarly a bit too late for sinners.) Because of this, some types of reprisals are permitted, as long as the sole purpose is to induce one’s adversary into complying with IHL and there is no other available way to induce compliance, along with some other legal requirements. This is the case for IACs. For NIACs, the law on reprisals is currently less clear.
How to get States to conform to what they agree to is a major problem with many other kinds of international treaties, including agreements for tackling climate change; albeit violence or tit-for-tat pollution cannot be the solution in these cases. International law has what’s called a ‘horizontal’ legal system – there are few international institutions empowered to enforce and punish violations of international law. States will therefore frequently violate international law themselves in order to induce other States into complying with their legal obligations. There is no ‘central police of the world’ (or metaphorical benevolent and omnipotent parent) and members of international treaties or alliances remain as sovereign States, even if they become part of an intergovernmental organisation like the UN, EU, ASEAN, WTO, IMF, NATO, Arab League, Commonwealth of Nations, etc.. (INTERPOL isn’t a law enforcement agency in itself either – the organisation merely facilitates the ‘horizontal’ cooperation between the law enforcement authorities of its member States.) So it’s effectively peers regulating peers, like siblings regulating siblings, even though some siblings are bigger than others.
It’s probably no wonder why so many civilised cultures in history believe or wish there are or were omnipotent gods to regulate human societies. But such power granted to human structures can too easily be abused and they won’t always be trusted to behave as fair or benevolent dictators. (There might hypothetically be a general link between those who believe in god(s) and those who believe that we don’t need human paternal structures i.e. it’s not that such religious people don’t believe in external human regulation but believe that their god(s) are the external regulators? Maybe they do in some ways but not other ways e.g. some religions believe in ‘let God be the only judge’ yet their human adherents nevertheless do plenty of judging of other people’s individual sexual and other choices! So perhaps the link isn’t that straightforward. Anyway…)
Although a grey area, civilians who directly participate in hostilities remain as civilians but are not legally protected against being attacked for the duration that they directly take part in the hostilities. Hostile acts are those that likely would (even if they ultimately fail to) adversely affect the military operations or military capacity of a party to an armed conflict, or that likely would inflict death, injury or destruction on persons or objects legally protected against direct attack. There must also be a direct causal link between that act, or a coordinated operation in which that act constitutes an integral part of, and the likely harm. The act must also be specifically designed (regardless of the intention of the individual) to directly cause (a certain threshold of) harm in support of a party to the conflict to the detriment of another.
This means that a civilian who is, for instance, code-breaking enemy communications, transmitting targeting information for an attack, or who intermittently drives ammunition trucks to the front line in order to support an armed group, can be legally directly targeted by the enemy. But a civilian who is merely carrying a weapon, working in a munitions factory as part of the general war effort, or is even assisting in the arrest and deportation of civilian populations, cannot be lawfully directly attacked. If a civilian truck driver is just transporting an ammunition truck to a general storehouse, or is basically working outside the context of a specific military operation, then the truck remains a legitimate military objective but the civilian driver will be legally protected from being directly attacked.
Regarding the ‘direct causal link’ criterion – if there is an uninterrupted chain of causality between an act and a harm then it will constitute a hostile act, even if it’s not considered the final step that causes the harm (so the assembly and storage of an improvised explosive device (IED) would constitute a hostile act too, for instance). Regarding the ‘coordinated operation’ criterion – collective military operations that directly cause harm constitute hostile acts too (so civilian contractors who analyse video feeds from unmanned combat aerial vehicles (UCAVs) to inform military personnel of potential targets can be lawfully attacked, for instance).
No one supports the view that civilians lose their protection against direct attacks only during the narrow window of the military engagement itself (e.g. only during the moments when they’re holding a rifle up in anger). Preparatory acts and the deployment to and from the location of a hostile act also count as an integral part of that hostile act too – although that’s it. Civilians thus recover their protection against attack after each act of direct participation (e.g. when they’re sleeping at home), even if they intend to prepare for another hostile act in the future.
However, this approach can create a ‘revolving door’ effect where ‘farmers in the day are legally protected during the day even though they’re fighters during the night’ – thus some scholars propose that civilians only recover their protection after a period of ‘extended non-participation’ or ‘an affirmative act of withdrawal’.
Members of armed forces or armed groups belonging to parties to the conflict can be targeted at any time during the conflict. Members of State armed forces are relatively easy to identify because they wear fixed and distinctive insignia, certain uniforms and/or otherwise carry identification, and they show a sufficient degree of organisation and belong to a State party. But members of non-state armed groups aren’t always easy to identify thus how to define their membership is contentious. The informal and clandestine structures of most armed groups, the wide variety of cultural, political, and military contexts in which they operate, the various degrees of affiliations with such groups based on voluntary choice, involuntary recruitment or traditional notions of clan or family, and the elastic nature of membership, render it tricky to concretely define a member of a non-state armed group.
One approach is that a person is considered to be integrated into an armed group irrespective of whether he/she assumes any combat function within it; which would therefore mean that cooks, for example, will be included too. An advantage to this approach is that it provides equal treatment between State armed forces and non-state armed groups. It consequently means that a cook can be targeted even when he/she is asleep if it can be demonstrated that he/she is a member of an adversarial armed group.
Another approach involves making a distinction between ‘dissident armed forces’ (those who are a part of the State’s armed forces but who have turned against the government) and other ‘organised armed groups’ (those who are initially made up of the ordinary civilian population – which are how most non-state armed groups are like). Members of the former are treated the same as members of the State’s armed forces they are rebelling against as long as they adopt a similar structure, but members of the latter are only members of armed groups for the purpose of the law of targeting if they bear their fangs and claws and assume a continuous combat function for the group directly participating in the hostilities.
However, a criticism of this second approach is the unequal treatment between State armed forces and non-state organised armed groups; albeit a counter-criticism to this is that, in reality, those who perform non-combatant tasks for non-state organised armed groups usually perform them in addition to, rather than instead of, a continuous combat function – similar to the way that uniformed cooks, administrative personnel and almost all other non-combatant members of regular armed forces are also trained, armed, entitled to and expected to directly participate in the hostilities in case of enemy contact, thus in practical reality assume a continuous combat function. Another criticism is that it may be quite difficult to know whether a potential target is engaged in hostilities on a continuous rather than sporadic basis; albeit a counter-criticism to this is that, in practice, such assessments are based on information that’s usually practically available and can be regarded as reliable under the prevailing circumstances.
Members of private military companies/contractors (PMCs) and private security companies/contractors (PSCs) are generally classed as civilians too, and all that entails. This means that they may be considered as unlawful combatants if they engage in armed violence in a war zone. Other problems include cases of human rights violations committed by members of PMCs, plus the fact that they directly profit from wars, which is a perverse incentive. (This could be said about the arms industry at large too. As part of multi-billion-dollar industries, they have enormous lobbying power and political influence too.) PSCs are often also employed to look after super-rich individuals and politicians.
They are technically distinct from mercenaries, who are illegal according to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. Yet members of incorporated PMCs have the same skill sets as freelance mercenaries, and many scholars dispute that a distinction between them should exist. When PMCs join a conflict, they may attempt to prolong it because the longer they’re out there, the more they’ll get paid, because war for them means revenue. As businesses, they’ll often oversell their skills and experiences to clients too. This area of IHL may well evolve significantly over time because so far it is a relatively highly neglected area of international law despite the general rise of their employment in war zones over time.
Overall, the furry message is that if you are a civilian and are ever caught up in a conflict zone – don’t directly participate in the hostilities and you will be legally protected against being the object of attack. Civilians should only act in self-defence – which unfortunately can be the case if the enemy routinely unlawfully directly targets civilians.
Woof.
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