Historical approaches to protection in war

This discussion begins with the concept of innocence, elucidating how its meaning evolved and how protection in war increasingly came to be associated with an individual’s harmlessness and non-participation in fighting. The aim is not to provide an extensive account of historical approaches, but to convey a general sense of how the rationale for protection changed over time. Attention is drawn to the absence of a binary configuration for organizing protection and the shifting relevance of an armed/unarmed marker.

Historically, innocence was connected to internal sentiment. Going back to the 5th

century, Saint Augustine of Hippo conceptualized innocence as an internal spiritual condition – one that would be difficult to ascertain from the exterior.135 _{In City of}

God,136 _{he elucidated a tentative guilt–innocence opposition upon which protection}

in war was to be based. 137 _{This did not map onto a soldier/not-soldier dichotomy.}

Instead, several types of actors were singled out for protection due to their imputed innocence: those not involved in fighting; those no longer involved in fighting; and

135 _{Colm McKeogh, Innocent Civilians: The Morality of Killing in War (New York, NY: Palgrave, 2002), p. 26.} 136 _{Hartigan, supra, p. 29.}

women and children.138 _{In practice, Augustine believed that very few individuals}

were, in fact, innocent. Members of those populations whose leaders had committed wrongs were seen to share the burden of (moral) guilt for their leader’s unjust acts.139

Over time, innocence came to be associated more strongly with non-participation

in fighting and an individual’s concomitant harmlessness. As articulated by Francisco de Vitoria in the 16th _{century, innocence could be determined through the}

presence or absence of objectively verifiable criteria such as the bearing of arms or conduct. 140 _{Those who were not involved in war fighting were deemed to pose no}

threat of harm and to lack responsibility for the war.141 _{Bearing arms triggered a}

presumption of guilt, as armed individuals posed an immediate threat;142 _being

unarmed, on the other hand, attracted a presumption of innocence.143 _{These were}

rebuttable presumptions, and the potential for guilt was always present.144

Protection was conceptualized as a contingent concept – an approach that also found favour in the medieval texts of Honore Bonet145 _{and the writings of}

Grotius146 _{and Vattel.}147

Vitoria’s interpretation of innocence continued to influence more recent iterations of just war theory. For example, Walzer described innocent people as those who had done – and were doing – nothing too warlike so as to entail a loss of rights.148

Despite this move to tie innocence to more objective criteria such as the bearing of

138 _{Ibid., pp. 31, 36.} 139 _{McKeogh, supra, p. 65.}

140 _{Ibid., p. 85; Hartigan, supra, p. 90.} 141 _Ibid.

142 _{McKeogh, supra, p.86.}

143 _{Ibid., p. 87; Betcy Jose, ‘Would the Protected Please Stand Up? Historical Ambiguity and the}

Distinction Principle’, in Edward Lorenz, Dana Aspinall and J. Michael Raley (Eds.), Montesinos’ Legacy: Defining and Defending Human Rights for Five Hundred Years (London: Lexington Books, 2014),p. 58.

144 _{Kinsella, supra, p. 68.}

145 _{Discussed in Alexander, supra, p. 33 (‘PhD Thesis’).} 146 _{Kinsella, supra, pp. 75–81. Hartigan, supra, p. 99.} 147 _{Jose, supra, p. 59.}

148 _{Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York, NY: Basic}

arms, the concern with internal sentiment did not disappear entirely after Vitoria’s time. An example of how it resurfaced later can be found in the 1863 Lieber Code,149 _{which introduced a hierarchy of protection based on loyalty.}150 _{The Code}

delineated three sub-categories of unarmed citizens: loyal, disloyal (sympathizing with the rebellion) and manifestly disloyal (giving ‘positive aid and comfort’ to the rebellious enemy).151 _{Those deemed loyal citizens were to be protected as much as}

possible from war, while war’s burden was to be placed on those belonging to the latter two categories.152 _{The logic was that the external sign of (not) bearing arms}

only mattered if it was not contradicted by internal sentiment.153 _{What is noteworthy}

about the Lieber Code approach, for the purposes of the present discussion, is how it set up internal divisions within the category of unarmed actors.

While innocence increasingly overlapped with harmlessness and non-participation in conflict, the latter also developed as separate bases for protection in war. The notion of sparing those who are harmless featured prominently in canonical decrees and chivalric codes; in the latter codes – as well as various medieval texts – harmlessness was equated with weakness.154 _{Under the canonical decrees of the 10}th _{and 11}th

centuries, certain classes of people, their property and their actions were protected in war.155 _{Without going into the details of these approaches to protection, what is}

striking is their lack of reliance on a civilian–combatant binary. In the 17th _century,

Hugo Grotius carried forward the idea from the canonical decrees and chivalric codes that certain classes of people should be spared in war. He counted among

149 _{Also known as General Orders, Number 100, Instructions for the Government of Armies of the United States in}

the Field (War Department, Washington, DC, 24 April 1863) (‘Lieber Code’).Discussed also in Kinsella, supra, p. 86; Alexander, supra, p. 363 (‘Genesis’). For an argument that the Lieber Code is the prototype of contemporary IHL, see Geoffrey Best, Humanity in Warfare: Modern History of the International Law of Armed Conflicts (New York, NY: Columbia University Press, 1980), p. 171; Stephanie McCurry, ‘Enemy Women and the Laws of War in the American Civil War’, Law and History Review, Vol. 35, No. 3, 2017.

150 _{Discussed in Kinsella, supra, pp. 86, 172.}

151 _{Article 155 of the ‘Lieber Code’, supra. See also Emily Camins, ‘The Past as Prologue: The}

Development of the “Direct Participation” Exception to Civilian Immunity’, International Review of the Red Cross, Vol. 90, No. 872, 2008, pp. 853-881, p. 863.

152 _{Article 156 of the ‘Lieber Code’, supra.} 153 _{Kinsella, supra, p. 86.}

154 _{G.W. Coopland, The Tree of Battles of Honore Bonet: An English Version with Introduction by G. W. Coopland}

(Liverpool: Liverpool University Press, 1949), p. 130.

them women, children, the elderly and those holding certain peacetime occupations such as merchants, clerics and farmers.156 _{The rationale for protection was grounded}

in these persons’ (in)ability to fight, as well as their value to society.157 _{A variation on}

this concept of value to society is introduced in Chapter 3, in connection with the special acts that humanitarian actors perform in armed conflicts. By the 18th _century,

the main criterion for claiming protection in war was non-participation in unjust acts. Emer de Vattel proposed that those offering no resistance and not participating in fighting – such as women, children, the aged and the sick – should not be harmed in war.158 _{Here, it was not individuals’ sex, age or occupation that}

formed the basis for immunity, but the assumptions these characteristics generated about their participation.159

Reflecting on this brief historical discussion, the lack of a binary configuration for organizing protection is evident. As Kinsella illuminates, there is nothing inevitable about the civilian and combatant entities; IHL defines these entities and thereby produces the subjects it claims to protect.160 _{What is also noteworthy is how}

consistently a high burden to secure protection is imposed on those who are not engaged in fighting. It is only the most innocent, harmless, worthy and removed individuals – typically women, children and the elderly – who are deemed to merit protection.161 _{Furthermore, the concept of contingent protection means that an}

individual’s claim to protection can be forfeited if he or she behaves in a manner that is deemed (potentially) threatening. Without overstressing continuity between past and present approaches, many of these dynamics continue to play out in

156 _{Jose, supra, p. 56; Hartigan, supra, p. 99.} 157 _{Jose, supra, p. 56.}

158 _{Emer de Vattel, The Law of Nations, or, Principles of the Law of Nature, Applied to the Conduct and Affairs of}

Nations and Sovereigns, with Three Early Essays on the Origin of Nature and Natural Law and on Luxury, Bela Kapossy and Richard Whitmore (Eds.) (Indianapolis, IN: Liberty Fund, 2008), Book 3, Chapter 8, sections 72, 145, 147, available at: http://oll.libertyfund.org/titles/vattel-the-law-of-nations-lf-ed. Discussed in McCurry, supra, p. 669, pp. 282–283.

159 _{Hartigan, supra, p. 108.} 160 _{Kinsella, supra, pp. 190–195.}

161 _{For an argument that it is women who are the essential non-combatants or civilians, see: Kinsella,}

contemporary wars. Enduring debates about women162 _{and children}163 _who

participate in armed conflict offer an example. While these individuals may initially be deemed innocent due to assumptions about gender or age, this calculus changes the moment they join the fight.

Having provided some historical context, the discussion now turns to the treatment of the civilian category in GC IV.