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CHAPTER 2

Humanizing the Laws of War

How dangerous it can be to be innocent.

—Hannah Arendt (quoted in Owens 2007:72)

… whatever it is that the law is after it is not the whole story.

—Clifford Geertz (2008:173)

A human rights framework rejects the idea that war is a state of exception governed by a law unto itself. Rights protect human dignity “always and everywhere” (Provost 2002:19). The integrity and autonomy of the individual count in every case. To think of people in this way is to resist Thucydides’s tragic maxim that “the dominion of imperious necessities” makes war a “hard master” (Thucydides 1881:222). It is to affirm the intrinsic value of civilians and civilian life. These are people with rights who cannot be used for some military purpose. Soldiers, too, have a right not to be used as cannon fodder (cf. Walzer 1977:137). Juxtapose these categorical imperatives with the more utilitarian designs of humanitarian law, and the law seems wanting. As Louise Doswald-Beck, former head of the ICRC legal division, notes (2004:356), the safeguards afforded by humanitarian law conventions “have now fallen behind the protection provided by HR [human rights] treaties.” This is perhaps a cri de coeur from a field battered by new wars, but the rigor of rights does set them apart from the qualified protections available under the laws of war.

As noted, the idea that human rights are the law of peace and international humanitarian law is the law of war is hard to sustain given the character of today’s conflicts. These tensions still crop up in the form of turf battles between the regimes, but more pragmatic developments are unfolding within the law itself. Considerations of strategy and victory continue to marginalize human rights, but ideas and practices associated with rights are nevertheless seeping into IHL, rendering it less technical and tactical, less deferential to reasons of state, and more in step with the suffering of the individual victims of war. As Marko Milanović puts it,

The law applicable in war is no longer solely a law between sovereigns who agree out of grace and on the basis of reciprocity to limit themselves in their struggles to reduce the suffering of innocent people. Rather, human beings embroiled in armed conflict retain those rights that are inherent in their human dignity, which are more—not less—important in wartime than in peacetime. (Milanović 2011a:95)

Human rights and the laws of war have been loosely associated for decades, but it was not until the internecine carnage of the 1990s that the details of rights started to take hold in customary, and to a lesser degree, treaty law. The legal gap with regard to intrastate wars created an opening for rights, but so did the changing normative terrain. A web of NGOs, intergovernmental organizations and agencies, and progressive states pressed the issue. Human rights courts and ad hoc tribunals began to draw indiscriminately from both regimes. Law and activism have proved mutually constitutive. For example, a consortium of civil society and state actors lobbied the International Criminal Court into existence, albeit with the Court’s legal powers—and its budget—derived through state consent. The ICC now stands both as a forum for adjudicating human rights and war crimes and as a referent for argument and debate about the pursuit of rights in other cases (Roach 2006). As we will see, the legal reach of rights is still hotly contested, particularly in asymmetric conflicts where the power of reciprocity has waned, though here, too, an increasingly coherent and pragmatic movement is pushing the debate in the direction of rights.

Humanity’s Law

International humanitarian law has traditionally regulated the use of violence between states, while human rights law has protected people from abuse at the hands of their own governments. But the trend today is to view these two sets of norms and strands of law as complementary, as existing in tandem or in parallel, or as mutually reinforcing, like “belt and suspenders” (Schabas 2007). Human rights courts can adjudicate war crimes that might otherwise go unaddressed, or supplement IHL with extra conditions with respect to the use of force or the protection of noncombatants. Or the two regimes may operate along a continuum in which human rights law applies in milder “law enforcement” situations, but as threats and violence escalate the law of war takes over (T. Smith 2010:25).

Ruti Teitel describes this process of convergence and complementarity as “humanity’s law.” “The most pronounced change in the international legal system,” she writes, is “the dramatic expansion of humanitarian law’s reach through its merger with international human rights law” (Teitel 2002:359). This view is widely echoed by legal scholars and jurists. The late Theodor Meron (2006) lauded the humanization of humanitarian law under the influence of human rights. Hans-Joachim Heintze describes (2004:791) human rights law as “an intrinsic part of the legal rules governing wars and other emergency situations.” The International Criminal Tribunal for the Former Yugoslavia (ICTY) noted “a slow but profound transformation of humanitarian law under the pervasive influence of human rights.”¹ The Court observed in the Tadić case that “A sovereignty-oriented approach has been gradually supplanted by a human being-oriented approach.”²

Enthusiasm sometimes gets ahead of practice, but there is little doubt that human rights now leaven humanitarian law in meaningful ways. The chemistry between the two regimes can be awkward, however. Where, after all, is the common ground between the dignity represented by rights and the tragedy represented by the “necessary” violence—including collateral violence against civilians—that is sanctioned by the laws of war? “On a normative level,” notes Audrey Benison, “humanitarian law contemplates a starting point of death, violence, and destruction that is repugnant to the essence of human rights law” (Benison 1999:152). Bill Bowring describes IHL as “intrinsically conservative, taking armed conflict as a given.” Human rights are much more eager to shake off the past. The idea of rights is “revolutionary, scandalous in its inception, inspired by collective action and struggle, and threatening to the existing state order” (Bowring 2009:5–6).

Each tradition traces a distinct provenance. From the start, the law of war was military law, a “contract between sovereign military powers” (A. Dworkin 2006:224). Book One, Chapter 1 of Grotius’s De Jure Belli ac Pacis (1625) is titled “On War and Right,” referring to the jus ad bellum right of states to launch wars. The “combatant’s privilege” to take human life is as old as the law of war itself. The primary subject of the jus in bello has always been the reciprocal treatment of armed agents of the state and the preservation of their right, within limits, to kill in war. Rights tend to be bottom-up, while IHL tends to be top-down. Cordula Droege notes that humanitarian law “did not emanate from a struggle of rights claimants, but from a principle of charity—‘inter arma caritas’ ” (2008:503). It confers protections upon us in the context of state power. As Draper (1998:125) observed of the Hague laws, “the powerful thrust of military considerations” is apparent. The individual is “an object of the law and not … a legal persona endowed with rights under the law of nations.”

In short, IHL is “of” war: the laws that regulate the conduct of hostilities are designed to moderate but also to accommodate the pursuit of legitimate military ends. It revolves around an economy of violence which greatly values military necessity. The ICRC Commentary to the Additional Protocols notes that “necessity is the limit of legality. Any violence which exceeds the minimum that is necessary is unlawful and it is on this principle that all law relating to the conduct of hostilities is ultimately founded” (see Lamp 2011:232). The laws of war categorically forbid directly targeting civilians as such. But the right of civilians to be free from violence, indeed, the right of rights, the right to life, is a relative right, subject to operational demands, military advantage, and proportionality. For military lawyers, the central question with regard to collateral damage is: “Is it worth it?” Can incidental civilian casualties be justified by the military advantage anticipated? Depending on the military advantages at stake, the level of civilian harm can be high indeed.

Most striking is how elastic the idea is in practice, particularly on this question of proportionality. Here is then U.S. Secretary of Defense Donald Rumsfeld:

Now the word “proportion”—“proportionate” is interesting. And I don’t know that it’s appropriate. And I don’t know that I could define it. But it might be said—and I wouldn’t say it—[laughter]—but it might be said by some that to quickly and aggressively repress a prison riot in one location might help dissuade people in other locations from engaging in prison riots and breaking out of prison and killing more people. I don’t know if that’s true. It might also persuade the people who are still in there with weapons, killing each other and killing other people, to stop doing it. It’s—ah—your question’s too tough for me. I don’t know what “proportionate” would be. (quoted in Carmola 2007:93–94)

Secretary Rumsfeld was not just being coy. Yes, proportionality is a process of balancing, but the elements on the scale—“concrete” military advantage, force protection, the status of people, excessive or “clearly excessive” force—are themselves contested. The benefits and costs are forward-looking and speculative: anticipated advantages and anticipated casualties. The scale tilts sharply against civilians when belligerents see a mission as imperative or certain tactics as necessary. The apportionment of risk further undercuts the civilian idea. Modern militaries frequently place protection of their own soldiers on the scales, loosening rules of engagement or choosing munitions and tactics that reduce risks to soldiers but increase them for civilians.³

Eyal Benvenisti argues that armies construe their obligations narrowly in any case. “Armies interpret the law as granting them wide discretion,” he writes. “They wish to limit the commanders’ responsibilities rather than increase protection to civilians. They highlight the obligations imposed on the defending army. In applying the test of proportionality, they stipulate that the means used should be measured against the overall aim of winning the military conflict rather than against the particular aim of winning a specific battle. And this overall aim is defined subjectively” (Benvenisti 2006:95–96). Thus, while military lawyers may judge proportionality in terms of discrete attacks, human rights advocates will tally the cumulative effects of attacks or map broader patterns of excess. Land mines, cluster bombs, and depleted uranium munitions, for example, while legal for “approved” military use, can cause immediate as well as long-term bodily harm. Attacks on infrastructure or dual-use facilities having both a military and civilian purpose (communications networks, electrical plants, water treatment facilities) traditionally have been interpreted in immediate IHL terms, not with regard to long-run effects on human rights and public health.

This is not to say that IHL is putty in military hands. Some legal claims are persuasive and square with the current spirit of the law, while others overreach or fall flat. For example, U.S. officials, not very convincingly, have defended the use of targeted killings as necessary given the “imminent threat” posed, but cite a “flexible” or “elongated” concept of imminence to cover threats that are not, in fact, looming (Human Rights First 2013:2). The interests and inclinations of states tend to dominate the enterprise of IHL in any case. As Kretzmer (2009:27–28) notes, the law “never places an undue burden on the Parties to meet military necessity and to pursue their military purposes.” States want as free a hand as possible while remaining within the bounds of the law and the aura of legitimacy. The law of war provides just such semi-restraint. As the British Manual of the Law of Armed Conflict puts it, “The law of armed conflict is consistent with the economic and efficient use of force. It is intended to minimize the suffering caused by armed conflict rather than impede military efficiency” (quoted in Waters 2008:33).

If the law of war is malleably utilitarian—even instrumental—in nature, particularly with regard to proportionality, it might be tempting to characterize human rights as categorical or deontological. Human rights certainly drive a harder bargain than IHL does. Some acts—torture or inhuman treatment, arbitrary killings, degrading public health, destroying the fabric of civilian life—are never worth it, regardless of the strategic advantages they might produce. But rights are also consequentialist. Like IHL, they, too, involve weighing and judging, only the utility sought is humanitarian and rescue-oriented rather than strategic. The calculus is this: the human rights benefits of using force must outweigh the human rights costs of using force.⁴ How this plays out in policy and practice won’t always be clear, but this caveat helps to steel the civilian idea. It sets a high threshold for the use of violence and ensures that wars undertaken for humanitarian reasons are waged as humanely as possible from the standpoint of those civilians on the ground who are most affected by it.

Humanitarian law and human rights are not always at loggerheads, of course. The two regimes overlap along a critical range of rights: due process and detainee rights, the prohibition on torture and cruel, inhuman or degrading treatment, and discrimination based on race, sex, language, or religion. But on the military terrain of strategy, human rights struggle to be heard. Not only does humanitarian law tend to be pliant, but its traditional priorities—the economy of violence, noncombatant immunity, the humane treatment of sick, wounded, and captured soldiers—eclipse the new priorities of human rights. Especially in high-tech campaigns, humanitarian law as lingua franca drives the discussion toward military issues of “correct” or “successful” targeting and whether means and methods of attack were sufficiently restrained, and away from the broader suffering wrought by war. What Pentagon press officer wouldn’t rather see a story on GPS-equipped missiles than 1,200 words on declining public health or imperiled women’s rights?

The interchangeable semantics of “law of war,” or “law of armed conflict,” and “international humanitarian law” gloss over these differences and contribute to the confusion. The public relations windfall of couching military operations in humanitarian terms is undeniable. But the term “humanitarian law” is ambivalent at best. Given the violence they license, the words are “Orwellian,” says Yale Law School professor Michael Reisman (Kretzmer 2009:21). Some strict constructionists reject the appellation “humanitarian law” in favor of “operational law,” a term that captures the primacy of the military mission as well as the functional utility of the rules. As one U.S. judge advocate put it, IHL confuses “the end desired by the warrior with that desired by the humanitarian. True warriors are chivalrous, but their role is not humanitarian” (Morris 1997:13).

These tensions are becoming more acute, not less. An ambitious human rights agenda seeks, as Milanović (channeling Star Trek) says, “to (boldly) take human rights to places, be they extraterritorial situations or those of armed conflict, or both, where … no human rights have gone before” (Milanović 2011a:96). The introduction of rights has shaken up the field and weakened the authority of legal experts to define the legitimacy and justice of war. The (in)justice of the Iraq War, for example, was defined as much by the “folk” legal interpretations of global protesters as by the learned opinions of international lawyers (Reus-Smit 2011:340). Even liberal militaries resist “lawfare,” or the use or abuse of law, particularly human rights law, in the midst of war. Liberal societies overwhelming expect their soldiers to minimize civilian harm, but often balk at the prospect of those same soldiers having to fight “with one hand behind their backs,” as it’s often put (more on this at the end of this chapter). Legal scholar Mark Osiel forecasts a “coming clash” between human rights and humanitarian law. Conflicts between the two regimes are “many and increasing,” he says. They are “false friends” who have settled on a common humanitarian vernacular, but who hold starkly different ideas regarding the legitimacy and phenomenology of war (Osiel 2009:130, 127).

These differences come to the fore when human rights and military experts delve into specific cases. Noam Lubell (2005:745) notes that the communication barrier “includes not only words and terms, but … conceptual differences that can lead to contrasting ways of thinking and differing approaches to situations.” Core concepts—the right to life, proportionality, military advantage—can mean one thing in IHL and another in human rights. During the Afghanistan and Iraq wars, Harvard University’s Carr Center for Human Rights Policy convened a series of workshops with representatives from human rights NGOs and U.S. military officers and experts. The sessions revealed “a large, and in some important respects, widening, gap between the views of the human rights community and the U.S. military on the practical meaning of international humanitarian law” (Carr Center for Human Rights Policy 2002:9). The basic vocabulary of IHL—necessity, proportionality, discrimination, military advantage—was often in dispute.

If human rights locate justice in the universal sphere, the law of war drags it back into the national orbit of interests and strategy. Rights seek to protect physical integrity and human dignity in all circumstances, in peace and in war, at home and abroad, in rebellions, uprisings, riots, and other civil disturbances. No category of people is excluded from its writ. The law of war, on the other hand, designates those people who are legitimate targets of violence and those who are not. It “seeks to legally determine who ‘matters’ and who ‘does not,’ and how, in situations of armed conflict, necessity operates within this reality” (Barnidge 2010). Making intent the moral fulcrum of war crimes further limits the reach of IHL. Loosely stated, humanitarian law focuses on the mind of the perpetrator, while human rights focus on the body (and mind) of the victim. To rise to the level of a war crime in IHL, an attack must be waged against noncombatants as such with deliberate intent to harm them. Human rights highlight civilian harm even in the absence of the mens rea, or “guilty mind,” of the attacker. According to the 1998 Rome Statute which established the International Criminal Court, the ICC follows a middle path of individual intention and knowledge: “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge” (Art. 30(1)).

This reliance on intent rather than outcome underpins much of the rhetoric of modern warfare. “Prosecuting targets,” “revisiting the area,” “softening resistance,” “close air support”—this is the legally correct idiom of planners and press officers. A British air commander during NATO’s campaign in Yugoslavia suggested that errant bombs had been “seduced off target” (quoted in Coady 2008:132). Even a passing glimpse of war from the perspective of its collateral victims is enough to deflate the pretentions of this kind of target-talk.

Avenues of redress are distinct as well. To the extent that they are adjudicated at all, breaches of humanitarian law are dealt with almost entirely at the state level. Virtually all are addressed within the military command structure, either through administrative channels or, far less frequently, the court martial system (Moffeit and Kane 2004). International war crimes tribunals allow and sometimes even encourage private individuals to submit evidence to international war crimes tribunals. The Office of the Prosecutor at the ICTY, e.g., maintained an e-mail address for tips and other information. But individuals have no standing to lodge or pursue claims of their own. Human rights courts do the exact opposite. They may rely on states for institutional support and funding, but cases brought by individuals against states are the lifeblood of the regime (Bowring 2009:6). At the ECtHR, for example, state-to-state cases are rare, but individual applications flow in by the thousands. The fact that IHL stands at a remove from the people it ostensibly serves has prompted human rights courts to broaden their writ:

international human rights law benefits from an enforcement machinery that, for all its faults and limits, is still much better developed than what international humanitarian law offers. Victims, and their lawyers, often have no alternative to articulating their cases in human rights terms, as they can only bring them to international courts the jurisdiction of which is defined by human rights treaties. International courts have, rightly, avoided dismissing these cases outright, preferring to broaden the scope of human rights as previously understood. (Verdirame 2008:691)

Humanitarian law leads a double life, regulating war but also constituting war as a legitimate institution. The rush to violence is often clad in legal scaffolding. Kant famously dismissed the international lawyers of his day as “sorry comforters,” “dutifully quoted in justification of military aggression” (Reiss 1970:103; emphasis in original). Just as chivalry distinguished between honorable and dishonorable uses of violence, modern rules of war prohibit some forms of killing and destruction but permit others. Legal scholar Frédéric Mégret (2012:19) calls IHL “a huge concession to the violence of the world as it is.” The principle of noncombatant immunity serves to mitigate civilian harm, not to bar it altogether. The idea allows us to think of war as a legitimate, if tragic, practice (Zehfuss 2012:435). The strategic utility of violence, a principle that is carefully tended in the laws of war but which sits uneasily with human rights, comes through unscathed.

The law is anything but silent in time of war. Critical legal theorists (and International Relations “realists,” for that matter) say that humanitarian law is instrumental, designed to burnish military pursuits, particularly those of powerful, technologically advanced states (T. Smith 2002b; Jochnick and Normand 1994). Modern war has become an elaborate legal institution. Lawyers weigh in on strategy as well as tactics. Judge advocates frequently embed with the troops as they make their way into battle. Particularly knotty targeting decisions are taken in close consultation with legal advisers. In this way legal rhetoric has become one of the “staple features of state practice on the use of force, so that when states use force against other states, they also use international law to define and defend, argue and counter-argue, explain and rationalise their actions” (Kritsiotis 2004:47). The law stands for moderation and restraint, but it other ways it functions as “part of war’s machinery, not a rod in its wheels” (Burke 2007:140).

This fusion of strategy and humanity was codified early on. Consider the Lieber Code, Instructions for the Government of Armies of the United States in the Field (1863), adopted during the American Civil War and the first recitation of modern military law. In Lieber, notes James Turner Johnson (1981:305), “can be found a foretaste of future wars in which high moral purpose would be held up as excuse for ignoring some of the most time-honored and basic restraints of the just war tradition.” Lieber did bar cruelty, torture, pillage, and rape; declaimed perfidy and bad faith; and protected churches, schools, hospitals, cultural sites, and scientific objects. It called on field commanders to spare unarmed, compliant civilians “in person, property, and honor as much as the exigencies of war will admit” (Art. 22). In the same breath, however, Lieber endorsed strategic necessity as that which is “indispensable for securing the ends of war” (Art. 14). He not only collectivized enemy civilians: “The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of war” (Art. 21); but he also invited the decisive, indeed disproportionate, use of violence: “To save the country is paramount to all other considerations” (Art. 5); “military necessity admits of all direct destruction of life and limb of armed enemies, and of other persons whose destruction is incidentally unavoidable” (Art. 15); “the more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief” (Art. 29).

Then, as now, clashes between formal and informal belligerents posed the greatest challenge. Lieber’s code marked a bright line between “barbarous armies” and “modern regular wars of the Europeans, and their descendants,” noting that “protection was, and still is with uncivilized people, the exception” (Art. 24). (U.S. soldiers accused of atrocities in the Philippines during the Spanish-American War would invoke the Lieber Code in their defense.) Nineteenth-century European law also codified customary restraints on the conduct of war, including the ban on directly targeting civilians, but it, too, privileged formal armies; the combatant’s right to kill would not be usurped by amateurs. Those amateurs tended to be people living under the thumb of occupation or colonial rule. Thus, irregulars and insurgents—and with them any right of resistance—were cast outside the law. The French jurist Amédée Brenet wrote in 1902 that “our goal here is to humanize war, by which we mean to regularize it.” Legal war would be preserved as a formal state pursuit in contrast to degenerate guerilla warfare, “which constituted a certain atrocity … the most terrible aggravation of war” (quoted in Nabulsi 1999:4).

The Hague Conventions (1899 and 1907) struck genuinely humanitarian notes. The Martens Clause in the preamble to Hague II (1899) invokes the “laws of humanity and the requirements of the public conscience.” The Conventions, while high-minded, did not break conclusively with nineteenth-century law and practice. Crafted by the great powers in an age of empire, they were international, not universal. They would apply only to people within the “magic circle” of civilization (Mazower 2006:555, quoting Scottish jurist James Lorimer). Europeans fighting other Europeans would be held to a higher standard than Europeans fighting non-Europeans. In this sense, the Hague rules were the legal equivalent of Callwell’s classic Small Wars: Their Principles and Practice (1899), a handbook for “expeditions against savages and semi-civilised races by disciplined soldiers” (Callwell 1903:1). Historian Stephen Rockel (2009:23) says the idea that “the laws of war could have any relevance in the process of imperial conquest would have been inconceivable to those planning it and carrying it out.” That iron rule was not lost on state leaders. Several of the governments seated at the Hague Conferences were simultaneously committing some of the worst imperial atrocities ever recorded—completely out of sight of international law.

Lest the laws of war seem like the last refuge of Realpolitik (Geoffrey Best suggests that “International law writers usually look hard in the other direction whenever raison d‘Etat is around”), they have made ever greater room for individual integrity and dignity. Best argues that as the law was systematized and codified, it lost touch with the “common stock” of humanity, becoming “increasingly tied to the rigidities of military thought and practice,” but that the rising tide of rights has buoyed the humanitarian side of the law (Best 1980:17–18). The 1949 Geneva Conventions adopted a liberal, universal, tone. Common Article 3, for example, provided that civilians in international as well as domestic wars “shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth”; be free from arbitrary judicial sentences and executions; and be protected from “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment.”

The Additional Protocols (1977) have been described as “the world of humanitarian law pa[ying] tribute to the world of human rights” (Doswald-Beck and Vité 1993:113). They recast the 1949 Geneva Conventions in terms of rights. States traditionally had resisted international regulation of civil wars in order to maintain as free a hand as possible to quell uprisings and rebellions, and to deny rebels any formal legal status. The 1977 Protocols directly challenged those arguments. The Preamble to Protocol II applicable to non-international conflicts reminded the generals that “international instruments relating to human rights offer a basic protection to the human person, emphasizing the need to ensure a better protection for the victims of those armed conflicts.” The Protocols not only strengthened civilian protections, they also extended combatant privileges to people fighting against colonial domination, occupation by outside forces, and racist regimes. Representatives of several national liberation movements were invited to participate in the negotiations (Roberts and Guelff 1982:387–88). All or part of the Additional Protocols have been ratified by 174 countries, with the United States, India, Israel, Pakistan, Iran, and Turkey notable exceptions.

Beyond Lex Specialis: The New Pragmatism

I suggested in the previous chapter that human rights are animated by specific ends, such as the right to life or the freedom of movement, while humanitarian law revolves around general principles of discrimination and proportionality. Nevertheless, humanitarian law enjoys pride of place as lex specialis, or “special law,” the legal doctrine that particular rules trump general ones. The International Court of Justice (ICJ) has argued that rules derived for the special circumstances of armed conflict take precedence over human rights laws that apply in all circumstances. In the Nuclear Weapons Advisory Opinion (1996) the Court ruled that the human right to life, for example, does not vanish in time of war, but is fashioned to fit IHL:

The protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.⁵

The ICJ’s 2004 Advisory Opinion on Israel’s separation barrier (“the wall”) further refined the compass of human rights. The court rebuffed Israel’s claim that human rights laws could not be applied in the context of war and occupation. After forty years of largely institutionalized occupation of the West Bank and Gaza Strip, there was little doubt the ICJ would find that Israel effectively controlled the West Bank and couldn’t so easily shrug off its human rights obligations. The Court extended the idea of civilian suffering to include curbs on freedom of movement, and barriers to agricultural lands, water sources, means of subsistence, health services, educational establishments, and religious sites. Military strategy and tactics were also fair game. The Court held that the seizure of Palestinian lands to construct the wall was not militarily necessary, since less drastic methods could have achieved the same end. Still, the Wall opinion was clearer on jurisdiction than it was on substance. The exact provisions were left open, as “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.”⁶

The ICJ took an equally enigmatic stance in Democratic Republic of Congo v. Uganda (2005). The Court simply noted that “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration.”⁷ The Congo ruling lists a wide range of applicable conventions—the Hague Laws, the Geneva Conventions, the Additional Protocols, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, the Convention on the Rights of the Child, and the Optional Protocol on the Rights of the Involvement of Children in Armed Conflict—but the Court provided no guidance on how the norms should interact. Nor did the justices infuse IHL with human rights. Rather, they maintained the parallel worlds of the regimes, with human rights remaining in force, alongside, or, perhaps more likely, beneath, IHL.

The sharpest criticism of special law is that it forces human rights to play on the field of IHL. The idea that “the special rule is closer to the particular subject matter and takes better account of the uniqueness of the context” is a time-honored principle of law (Sassòli and Olson 2008:603). But in this case the uniqueness of the context didn’t simply refer to the standard of force most apt when the infantry is pinned down by artillery fire or when a civilian approaches a poorly lighted checkpoint manned by a nineteen-year-old soldier hopped up on Red Bull and death metal music. It also means strategic context, military necessity, casualty aversion, risk apportionment, and so on. If we cast human rights in a secondary role, we miss the full impact of war on its victims. The breakdown of everyday life—the erosion of public security, economic suffering, rent social fabrics, failing public health, environmental degradation, displaced persons—becomes the wallpaper of war, a depressingly familiar backdrop to the main event, the “fighting” war in which proportionality and discrimination are more or less observed.

Over-deference to special law can leave states thinking they’ve shed their human rights duties altogether, even with regard to classic rights like due process, humane detention, and just punishment (Ben-Naftali and Shany 2003:56; C. McCarthy 2008:107). Defending its treatment of detainees in the war on terror, the George W. Bush administration argued that human rights didn’t apply extraterritorially, and even if they did, they would be superseded by IHL. Some within the government argued that humanitarian law didn’t apply because the adversaries were “unlawful enemy combatants,” who did not respect the basic decorum of war. The administration eventually settled on special law. Testifying in 2006 before the UN Committee against Torture, John Bellinger, legal advisor to the U.S. Department of State, said, “Our view is simply that U.S. detention operations in Guantanamo, Afghanistan, and Iraq are part of ongoing armed conflicts and, accordingly, are governed by the law of armed conflict, which is the lex specialis applicable to those particular operations.”⁸ Special law was seconded by the U.S. Supreme Court, which ruled in the 2006 Hamdan case (a decision that studiously avoided any mention whatsoever of human rights) that Common Article 3 of the Geneva Conventions did apply to the Guantánamo detainees.⁹

Special law can become the rote military response to the turf challenge posed by human rights. “During combat operations,” says the official Rule of Law Handbook for American judge advocates, “the U.S. regards the law of war as the exclusive legal regime or a lex specialis … [which] operates to the exclusion of competing legal frameworks such as human rights law” (Judge Advocate General’s Legal Center and School 2009: 80). The 1,200-page Department of Defense Law of War Manual, published in 2015, has little patience for rights, endorsing the law of war (the manual’s preferred nomenclature in place of the softer “humanitarian law”) as “the controlling body of law with regard to the conduct of hostilities and the protection of war victims” (U.S. Department of Defense, Office of General Counsel 2015:901). Other times one finds grudging respect for rights. Remarkably, the U.S. Army’s chief legal manual from 1956 said that the purpose of the laws of war was to safeguard “certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians.” The manual concluded that observing human rights would ultimately “facilitate[e] the restoration of peace” (U.S. Army 1956:para. 2(b), 2(c)). Fifty years later, the U.S. Operational Law Handbook 2006 stated that human rights obligations based on conventional international law “fall within the category of ‘aspiration’ rather than ‘obligation,’ ” but that “human rights law based on customary international law binds all states, in all circumstances” (Grimes et al. 2006:50). The 2009 Rule of Law Handbook, the main resource for the military lawyers knowns as judge advocate generals, or JAGs, seems certain that human rights work: “Irrespective of the specific legal context, rule of law operations should be guided and informed by human rights law purely as a matter of efficacy” (Judge Advocate General’s Legal Center and School 2009: 80).

Military views are not monolithic. Commanders have an absolute duty to see that their troops observe IHL, but they have latitude in identifying and handling breaches. Some JAGs see their role as “force multipliers” whose job is to facilitate rather than fetter violence. Lt. Col. Tony Montgomery, the judge advocate who approved the NATO bombing of the Belgrade television station during the Kosovo crisis, said “judges don’t lay down the law. We take guidance from our government on how much of the consequences they are willing to accept” (“They are just covering their ass” 2001). Others take a more independent stand. Some of the most dogged critics of the detainee program at Guantánamo were the JAGs assigned to represent them before military commissions. Unit leaders see the law boiled down to rules of engagement, while commanders consider the broader impact of the law on strategic goals.

Proponents of special law say it is the only way to set clear standards for soldiers. The underlying concern is a serious one. Are the soldiers engaged in law enforcement? Military action? Something in between? As D. Kennedy (2006b:133) notes, “in today’s asymmetric postcolonial wars, the terrain beneath a soldier’s interpretations of what is and is not appropriate is constantly shifting.” Then again, how IHL translates into practice isn’t self-evident, either. The 2004 U.S. Army counterinsurgency manual noted that “all counterinsurgency operations comply with law of war principles to the extent practicable and feasible” (U.S. Department of the Army 2004:sec. j-4). Note the double dilution: the practicable/feasible qualification as well as the reliance on law of war principles rather than the law of war per se. As we’ve seen, precise definitions of military advantage and military necessity are elusive. So it’s something of a red herring to say that soldiers will be left to translate “Delphic principles” of human rights into military reality (Garraway 2010:507). The image of soldiers entering the fray with copies of ICJ advisory opinions tucked under their helmet bands is misleading. Rather, human rights norms, like the laws of war, inform concrete policies and rules of engagement. These will vary according to the context and mission, but the overall impact is to push the rules toward stronger civilian protections by elevating humanitarian priorities and emphasizing individual dignity and integrity.

Until now, basic tensions between the regimes have meant that something had to give. In light of strategic pressures, institutional preferences, the historical sway of the laws of war, and near-universal public support for troop protection, that something has tended to be human rights. Canada’s former Judge Advocate General, Brig. Gen. Ken Watkin (2004:32), for example, sees times when human rights should come into play; but in the end, human rights must bend to IHL. “International humanitarian law has its own standards for assessing the legality of using lethal force, so that human rights advocates will have to become more comfortable with both the scope of that law and its application to conflict.” Mark Osiel (2009:130) says the regimes occupy separate “legal universe[s],” adding, “if either body of law has fair claim today to gobble up the other, it is surely humanitarian law, not human rights.”

It should be clear by now that it doesn’t have to be this way. Nothing in the DNA of humanitarian law makes it superior to human rights. As Orna Ben-Naftali and Keren Michaeli suggest, we should consider specific circumstances and choose the standard that offers the greatest protection to the innocent (Ben-Naftali and Michaeli 2003b:254; also see Sassòli and Olson 2008:603–4). Special law misses this give and take between the regimes. Scholars have argued for years that human rights should carry greater weight in internal conflicts, given the short shrift IHL accords civil wars. For the ICRC, the institutional guardian of humanitarian law, human rights are a cornucopia of humanitarian norms. The term “human rights” appears more than 4,000 times in the ICRC’s massive 2005 study of customary law (see Henckaerts and Louise Doswald-Beck 2005a, b). The ICRC conception of civilian protections increasingly echoes that of rights as well: “assur[ing] that authorities and other actors respect their obligations and the rights of individuals in order to preserve the lives, security, physical and moral integrity and dignity of those affected by armed conflicts and/or other situations of violence” (ICRC 2008:9).

As a practical matter human rights give form and definition to general concepts of IHL. Rights offer a detailed blueprint of the right to life, fair trials, adequate investigations, and the treatment of detainees, as well as a range of issues affecting civilians living under military occupation or control: free speech, free association, free movement, the freedom to work, the right of asylum, property rights, and so on (see Moir 2003; Cryer 2010; Roberts 2006). With regard to child soldiers, human rights protections have eclipsed IHL. Under Additional Protocol II, children under fifteen may not be recruited or take part in hostilities. Human rights instruments set a minimum age of eighteen.¹⁰ With the exception of the International Military Tribunal for the Far East (the Tokyo Trials), sexual violence and sexual slavery were not explicitly set out in the law of war until the war crimes tribunals for Rwanda and the Former Yugoslavia (Jacobsen 2008:561). Human rights NGOs tend to set sexual and gender-based violence within an additive legal framework of humanitarian law, human rights, and national and international criminal law (see, e.g., Human Rights Watch 2003c; Amnesty International 2004a,c; and Kippenberg 2005).

Human rights groups layer the details of rights onto their renderings of IHL, often stressing impacts of violence that get glossed over by humanitarian law. Human Rights Watch described breaches of IHL in Colombia’s grinding civil war in unmistakable human rights terms: “Violations of international humanitarian law—the laws of war—are not abstract concepts … but the grim material of everyday life. War bursts into the daily activities of a farm, a village, a public bus, or a school with the speed of armed fighters arriving down a path or in four-wheel drive vehicles” (Human Rights Watch 1998c:1). A survey by Amnesty International of sexual violence against women in Colombia couched abuses in terms of racial, indigenous, and gender rights:

The civilian population has increasingly become a victim in the internal armed conflict, not simply caught in the crossfire, but purposely targeted. This has above all affected those communities most at risk, whose voices are rarely heard: Afro-descendent and indigenous women, peasants, and shantytown dwellers on the outskirts of cities, many of whom are already displaced. Women’s bodies have become marked as military targets, whether because they have not conformed to their “gender role,” because they have challenged prohibitions imposed on them by the armed groups, or whether they are perceived as the “depositories” of the honour of a particular community and therefore a useful target on which to inflict humiliation on the enemy. (Amnesty International 2004b:8)

The regional human rights courts and the ad hoc criminal tribunals have led the way in articulating human rights standards of conduct. Yet even while ushering new law into the world, the courts have tended to be pragmatic, recasting IHL in terms of rights rather than rejecting or replacing it. Although the ECtHR is often panned for producing “Ivory Tower” rulings, in fact the Court usually tightens rules of engagement and other policies on the use of force that rest on humanitarian law in the first place (Gaggioli and Kolb 2007:124–27). For example, in the Ergi case (involving a civilian killed during a firefight between Turkish soldiers and PKK fighters), the Court ruled against Ankara even though the lethal bullet may have come from a PKK gun. Citing “defects in the planning and conduct of the security forces’ operation,” the Court argued that the responsibility of the state was “not confined to circumstances when there is significant evidence that misdirected fire from agents of the State has killed a civilian. It may also be engaged where they fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimizing, incidental loss of civilian life.”¹¹ In Isayeva (relating to Russian air strikes against suspected insurgents traveling close to a column of refugees on a highway in Chechnya), the Court conceded Moscow’s need to pursue “exceptional measures” in the war, and agreed that some degree of force was justified. While the attacks were plausible within an IHL framework, the Court concluded that they were not “planned and executed with the requisite care for the lives of the civilian population.”¹² In McCann (involving the killing of three unarmed members of the Irish Republican Army by British SAS agents during a stake-out in Gibraltar), a divided court ruled that the design of the operation violated the right to life of the victims. Even if the soldiers believed it was necessary, even “absolutely necessary” to use deadly force “in order to safeguard innocent lives,” the court’s majority said the soldiers’ snap decision to shoot to kill “lack[ed] the degree of caution in the use of firearms to be expected from law enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects.”¹³

In other cases, reliance on rights introduces altogether new norms. The Israeli High Court of Justice (now the Supreme Court of Israel) in the Targeting Killing case (2006) provided detailed guidance on targeted or “named” killings. Citing dozens of human rights precedents, the High Court insisted on discrimination and proportionality with regard to incidental civilian harm, but also went further, economizing violence in order to maximize the rights of all involved: “among the military means, one must choose the means whose harm to the human rights of the harmed person is smallest. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed.… Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.”¹⁴

Here a liberal rights norm reins in the idea that combatants can be targeted and killed at any time. Even if they comport with IHL, acts of war can’t be severed from human rights standards of fairness and due process (Kretzmer 2005:186). Again, rights are not absolute. Apprehension and trial are preferable to targeted killing, but the resort to lethal force is still an option. The case also shows how tentative many of these advances are. Only four years earlier the same Israeli court said bluntly that military operational matters were “non-justiciable,” or beyond the reach of the courts (Ben-Naftali and Michaeli 2003a). Nor has reliance on rights ironed out the controversy over such killings. Far from it. Targeted killings carried out by Israel within the 2006 framework remain highly contentious, and usually only scant details are available regarding specific cases.

Human rights advocates can find themselves torn between the utilitarian culture of humanitarian law and the purer ethos of rights. During the dirty wars of the 1970s, rights groups deliberately avoided the world of IHL, with its “strange and ambiguous (at least to human rights people) concepts such as ‘collateral damage’ and ‘military necessity,’ so that even something as apparently straightforward as the killing of civilians might, though regrettable, not constitute a violation of international humanitarian law.” Relying on IHL could have unintended moral and legal consequences. In Northern Ireland, for example, human rights groups resisted condemning the killing of civilians by the IRA as a violation of humanitarian law rather than human rights law, lest this telegraph their approval of the killing of British soldiers, who might conceivably be targeted under the laws of war. Indeed, embracing IHL would signal that the conflict was a war, and thus legitimize the British government’s “shoot to kill” policy in place of policies geared toward apprehension and arrest (Brett 1998).

Since the mid-1990s, however, a loose pattern has emerged. Human rights groups have tended to view low-end, internecine, conflicts through the lens of rights, while framing high-tech, “Western,” wars in terms of IHL. For example, Helsinki Watch (later Human Rights Watch) viewed ethnic conflict in Yugoslavia as part of a chain of human rights violations that unfolded over time—from Serbian nationalists silencing press freedoms, to the early purges of ethnic Albanians in Kosovo, to the rise of paramilitary violence (Anderson 1990; Human Rights Watch 1991:602). Having reported from Yugoslavia across the 1980s under the Helsinki system, HRW did not recognize a clean break from peace to war, from human rights to humanitarian law (Helsinki Watch 1986). Even after the Croatian War broke out in 1991, HRW continued to view abuses largely in terms of rights (Helsinki Watch 1991). Amnesty International, too, translated the generalities of the Bosnian war into the details of rights. “War” or “ethnic cleansing” did not unfold as high strategy or pitched battles, but as a rash of killings, expulsions, disappearances, executions, extortion, terror and fear, illegal detentions, beatings, torture, and rapes, skewed investigations and snap trials, and all the daily harassments and humiliations of intercommunal strife (Amnesty International 1992; Amnesty International 1994; Amnesty International 1996a). Conflicts in Africa have similarly been framed in the language of rights. During the civil war in Burundi (1993–2005), for example, Amnesty and HRW both invoked IHL with regard to specific war crimes, but the driving narrative was the crippling effect on civilians (Human Rights Watch 2003a; Human Rights Watch 1998b). Rights coverage of the wars in the Democratic Republic of Congo (1996–2008) tended to reduce the conflagrations to digestible themes: children shanghaied into militias, rape used as a weapon of war, the vast number of persons displaced, and so on. Advocacy campaigns often focused on the massacre of a single village, or even a single family, lest the human costs of war be lost in a sea of statistics (see, e.g., Amnesty International 2009a; Human Rights Watch 2009b; and Refugees International 2013).

At a minimum, such conflicts “not of an international character” are governed by the Geneva Conventions Common Article 3. Maximalists say that many of the civilian protections of Additional Protocol I have passed into customary law and therefore also apply to all parties regardless how the war is categorized.¹⁵ To be sure, IHL is critical in cases of discrete, prosecutable, war crimes. But in the absence of the kind of organization and command and control that traditional laws of war envision, analysts are drawn to rights. Humanitarian law seems almost too formal or event-specific to capture the extended terror and turmoil of societies engulfed by war. Whom do you court martial for the spread of infectious disease or a spike in infant mortality? Nor does special law do justice to the kind of endemic violence that can thrive in the limbo between war and peace. In Congo, for example, the Goma peace agreement formally ended the war in 2008, but there has been little distinction between war and peace since, especially in North Kivu, which is still rocked by waves of killing, displacement, looting, and sexual violence.

When it comes to modern, high-tech warfare, however, human rights groups have grown noticeably comfortable with humanitarian law. An early example is the Israeli incursion into Lebanon in 1996 known as Operation Grapes of Wrath. Amnesty’s assessment of the seventeen-day air and artillery campaign did not discuss human rights at all (Amnesty International 1996b). Human Rights Watch’s postmortem cited fundamental guarantees of human rights, but its analysis, too, relied exclusively on IHL. Much of the focus was on the IDF’s shelling of the South Lebanon village of Qana, where more than a hundred civilians sheltering in a United Nations compound were killed. Both groups accused the IDF of deliberately displacing hundreds of thousands of civilians in order to pressure the Lebanese government to disarm Hezbollah. Under Article 51(2) of Additional Protocol I, “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Amnesty argued that the warnings were designed as threats, particularly the charge that “any [remaining] presence in these villages will be regarded as subversive” (Amnesty International 1997:9). Human Rights Watch concluded that the IDF language appeared “expressly intended to terrorize the population in the south” (Human Rights Watch 1997).

Ethnic cleansing on the ground in Bosnia was treated largely as a matter of rights, but NATO’s 1998 air campaign was scrutinized mainly in terms of humanitarian law (Amnesty International 2000). Rights analysts often echoed military language and assumptions. Human Rights Watch conducted its first “battle damage assessment (BDA) mission” (HRW’s own Pentagonese) to gauge damage to civilians and civilian objects caused by NATO’s airstrikes (Docherty and Garlasco 2003:10). Research teams from Human Rights Watch have conducted BDAs in Afghanistan, Iraq, and Gaza as well, gathering ballistics evidence, mapping missile strikes, measuring debris spray and bomb craters, identifying shrapnel and pieces of cluster munitions, and interviewing soldiers and survivors. The technical expertise and detailed reporting that went into Off Target: The Conduct of the War and Civilian Casualties in Iraq (2003) were hard to ignore. The report identified patterns of misconduct and failures to exercise due care, but made no mention of human rights proper. Other rights groups have analyzed accountability for abuses on the military’s or CIA’s own terms. Human Rights First’s Command’s Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan (Shamsi and Pearlstein 2006) studied scores of cases of detainees who died in U.S. custody, many of them clearly homicides. The analysts at Human Rights First didn’t challenge the prerogative of U.S. military commanders or the CIA inspector general to investigate and punish their own breaches, either under the Uniform Code of Military Justice or by referral to the Department of Justice. Rather, the rights group highlighted a yawning “accountability gap” in U.S. practice and suggested measures for improvement:

deaths went unreported, witnesses were never interviewed, evidence was lost or mishandled, and record-keeping was scattershot. They also include investigations that were cut short as a result of decisions by commanders—who are given the authority to decide whether and to what extent to pursue an investigation—to rely on incomplete inquiries, or to discharge a suspect before an investigation can be completed. Given the extent of the non-reporting, under-reporting, and lax record keeping to date, it is likely that the statistics reported here, if anything, under-count the number of deaths. (Shamsi and Pearlstein 2006:2)

Today, a sizeable subfield of the human rights movement is devoted to documenting and analyzing the conduct and consequences of war. Leading rights groups have hired specialists in humanitarian law, military weaponry and targeting, arms transfers, counterterrorism, humanitarian emergencies, health and human rights, and international justice. With such expertise and evidence on their side, no one can accuse human rights professionals of abandoning the field to the military’s legal mandarins. Rights experts have gained relevance and access, communicating and, at times, collaborating with armed forces in response to humanitarian crises. No doubt some of the ethos of human rights rubbed off on military officials in the process, but perhaps at the cost of some critical distance on the part of human rights. With regard to the Iraq war, for example, most rights groups remained skeptical of the Coalition’s ad bellum claims—Human Rights Watch flatly denied that the war constituted a humanitarian intervention—but at the same time seemed to endorse the in bello manner of war the Pentagon aspired to, namely using sophisticated weapons to destroy physical power and infrastructure while limiting civilian casualties (Roth 2004).

Civilians in New Wars

The recent attention to “new” wars has led many analysts to say that the old rules no longer apply. In such conflicts, material capabilities, strategy and tactics, and ethics and etiquette differ sharply between the warring parties. What is lacking above all, say humanitarian lawyers, is the moderating force of reciprocity. Reciprocity in this case refers to the promise of shared norms as well as the threat posed by roughly equal capabilities. In asymmetric warfare one side’s competitive advantage may be heavy bombing, while the other’s is planting homemade improvised explosive devices, or IEDs. Any restraint that tit for tat might have engendered evaporates. If they’re not playing fair, why should we? As reciprocity has waned, so has confidence in IHL. One skeptic suggests the laws of war may have been relevant in an age of “knights and chivalry” but are ill suited to govern today’s wars (quoted in Cardenas 2010:1). White House counsel Alberto Gonzales (2002) advised President George W. Bush that the war against terrorism was “a new kind of war” that rendered the Geneva Conventions “quaint.”

Arguments about asymmetry usually portray states as the vulnerable victims of non-state violence (Winter 2011:495). However, embedded in this language of alarm are certain assumptions about civilians as well. One of the leading tropes of asymmetric wars is the blurring of combatant and noncombatant identities. Belligerents often describe noncombatants as “not really civilians” or “not only civilians” (Slim 2008:183). “There are civilians all over the battlefield,” notes David Kennedy (2006b:113–14). “Not only insurgents dressed as refugees, but special forces dressing like natives, private contractors dressing like Arnold Schwarzenegger, and all the civilians running the complex technology and logistical chains ‘behind’ modern warfare … civil affairs officers run after the troops dispensing compensation and apologetic words in a campaign for hearts and minds.” Adam Roberts (2009:19) describes the status of civilians as “multi-faceted and complex: they are both agents and victims; both co-players in the theatre of war and objects of propaganda; both participants in the war economy and protected persons in the laws of war.”

These characterizations are surely true, but they can read too much ambiguity into today’s wars. It’s a rare civilian who is plagued by divided identities or mired in complicity and guilt. The ICRC People on War Report describes the “total engagement” of societies in war, though more as victims than as perpetrators. A third of the respondents to the ICRC survey reported that their dwellings had been seriously damaged in fighting. A third were driven from their homes. In Somalia, two-thirds of respondents were displaced. In Afghanistan, the figure was 83 percent. Noncombatants reported that sometimes they were “recruited and pushed and compelled to join with combatants, often from all sides,” and were frequently pressured to provide food or other material support to combatants (ICRC 2000:viii). But very few moonlighted as soldiers. Most were hapless bystanders or unarmed refugees with few options.

As contests between professional soldiers turn into contests for hearts and minds, civilian loyalties are implicated. This is guerrilla warfare redux. “The inhabitant in his home is the center of the conflict,” wrote Col. Roger Trinquier (1964:29), a French commander during the Battle of Algiers. “Like it or not, the two camps are compelled to make him participate in the conflict; in a certain sense, he has become a combatant too.” Michael Walzer notes that the U.S. rules of engagement in Vietnam had “only the appearance of recognizing and attending to the combatant/noncombatant distinction. In fact, they set up a new distinction: between loyal and disloyal, or friendly and hostile noncombatants” (Walzer 1977:193). “You can’t tell the difference between these people at all,” said Marine Sgt. Matt Mardan. “They all look Arab. They all have beards, facial hair. Honestly, it’ll be like walking into China and trying to tell who’s in the Communist party and who’s not. It’s impossible” (Hedges and Al-Arian 2008:46).