Evidence Of Control

I don’t want to pick on Kenneth Anderson — I use him as an example because he states his points clearly and logically, not because he is in some way uniquely wrong.

But if you read this (tight, well-argued) post, you are likely to come away with a bit of confusion. The Pakistanis marching protesting US drone strikes are not, after all, complaining about the laws of war, nor is a lecture on the laws of war likely to mollify them. The various American liberal groups protesting the emergence of an unreviewable-targeted-killing-of-citizens regime in their country aren’t spending a lot of time poring over the laws of armed conflict, either.

Anderson regards such arguments — individual civilians voicing moral sentiments unconnected to the laws of war — as at best naive and more likely malicious: Within the laws of war, everything; outside them, nothing.

But he might do well to ask why the laws of war have so much less moral resonance with a Pakistani or American civilian than they have with the militaries and governments and academics to whom Anderson makes his argument. If the laws of war had moral legitimacy, we would expect to see some instinctive popular deference to it; in the absence of popular deference to a legal framework, one cannot help but ask if it is just a self-serving sham.

The civilians of the world are less enthusiastic about the laws of war than the governments and militaries because although that legal order is meant to strike a balance between civilian and state interests, it mysteriously turns out that only civilians and never states are found to have violated it — state actions somehow turn out to be unintended, or proportional, or “necessary”, or “double effect”; the civilian equivalents by contrast are found to be “unlawful combat” or “dual use materials” and merit the harshest punishments available.  For every inconvenient year served at the Hague by a member of a government or military, a thousand civilians have been bloodily maimed in war.  Until those numbers come into balance, it should not surprise us that civilians feel no allegiance to the laws of war and look for ways to achieve political ends — even violent political ends — outside of them.

The world desperately needs a widespread consensus on the legitimate actions of militaries and states toward civilians.  Violent civilian organizations (“unlawful combantants” rather begs the question) pose genuine threats to civilian and state interests alike.  But pretending that the laws of war constitute such a consensus is simply a way of dismissing civilian concerns and signing a blank check for state violence.

In the end, I suspect (though Anderson has not said this and it may be unfair for me to attribute it to him) that the laws-of-war lobby simply regard state concerns as bigger, or even as subsuming civilian concerns (in the most extreme case, “sovereignty” allows civilians to be regarded mere chattels or detritus of a state with no moral value or posture of their own).  They regard state violence from the frame of “State A versus Group B”.  The experience of civilians, by contrast, is more often “State A and Group B versus Civilians” — with the laws of war stacked to disarm civilians in that conflict.