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Foregrounding ‘Non-Combatant Immunity’

Ali Ahmed was Research Fellow at the Institute for Defence Studies and Analyses, New Delhi. Click here for detailed profile
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  • January 30, 2009

    A fundamental principle of humanitarian law, non-combatant immunity, has been virtually consigned to history during the Bush years. To a large extent this can be considered a ‘success’ for terrorists. That terrorists do not respect the principle of non-combatant immunity is central to the definition of terrorism. The aim of terrorists is substantially achieved when states also adopt their language and grammar. This has been done to an extent by the US in its militarily aggressive response to 9/11 in Iraq and Afghanistan. With US inaction, Israel has gone farthest by violating the principle of non-combatant immunity in its just concluded attack on Gaza that claimed over 1300 lives, mostly civilian. In the American case, ‘military necessity’ has dictated targeting indicating that the principle of non-combatant immunity is taken seriously, but not always followed. Thus civilian casualties in operations outside Green Zones in Iraq, in particular spectacular ‘clear and hold’ operations such as Falluja, are treated as unintended ‘collateral damage’. Israel has, on the contrary, focused on civilian targets deliberately, in order to bolster deterrence and to punish the Palestinian population for its continued support to Hamas. Closer home in South Asia, non-combatants have been affected considerably in counter insurgency operations, be it in Nepal earlier or in continuing operations against the Tamil Tigers and in Swat and Bajaur of Pakistan.

    While it is true that any historical survey would reveal that non-combatant immunity has seldom been conceded by warring armies, it is of equal import that the principle has been reinforced by religious, ethical and political commentary over the ages and in all cultures. Medieval religious wars did not respect this principle as the political aim was to proselytize. Siege warfare permitted the logistic shaping of the battlefield in cutting off supplies to the besieged populace. Revolutionary wars tapped the nationalist energy of the populations, thereby bringing in ‘people’ as combatants. Guerrilla wars enlarged the scope of people’s participation. Warfare accompanying these changes identified people in terms of their will as a way of imposing their ‘will’ over an enemy. Social Darwinism of the Nineteenth century presaged the Total Wars of the succeeding century in which the doctrine of ‘unconditional surrender’ ensured that civilians were identified with regimes being contested violently. The fire bombings, strategic bombing, concentration camps and the use of nuclear weapons were the culmination of this tendency in warfare. In the Cold War period, deterrence to which is attributed the ‘long peace’ - was based on holding adversary populations hostage. In areas peripheral to the central strategic balance, revolutionary wars, dubbed ‘peoples wars’ predominated. Vietnam and Afghanistan are the most illustrative cases of violations of non combatant status of affected populations. Asymmetric warriors of today assume they are not required to genuflect to this principle, because their political project is based on the terrorism-suppression-alienation cycle.

    Civilian populations have also suffered disproportionately more than regimes from the imposition of sanctions purportedly designed to topple regimes. The classic examples are Iraq in the Nineties and Gaza over the last two years. Sanctions against Iran, and possibly a non-compliant Pakistan, are possible targets. Sanctions appear to be the strategic equivalent of ‘shaping the battle’. The population is punished for the actions of the ruling regime. This is precisely the logic of the terrorist. Islamists too identify Western people with their governments and in making that connection attempt to legitimize their tactic of targeting civilians. The logic of the Israelis ironically vindicates the Islamist position, for in democratic states, in theory the electorate has some control over the government actions. Therefore if actions of western governments are hostile, then in the Islamist narrative the population is to blame for being inert and culpable. The danger of this logic of conflating populations with their governments is the weakening of the immense strides made in human rights and humanitarian law post World War-II.

    Another trend is the displacement of civilian populations due to military operations. Examples closer home are recent population movements in FATA-NWFP and in Sri Lanka in Killinochchi and Mullaitivu. While humanitarian emergencies have accompanied combat operations earlier, the lethality, firepower and shock effects have increased manifold. There is insufficient evidence to document the psychological effects of attacks by drones in the post heroic age. The political effects are more than evident in any case.

    It would appear that non-combatant immunity has been more of an ideal than a fact. But the developments in the Charter era with the war crimes trials at Nuremberg and Japan, Universal Declaration of Human Rights and the Geneva Conventions marking its early years have elevated non-combatant immunity from a principle to customary law status in the law of armed conflict. Treaty law has not kept pace in that the Additional Protocols to the Geneva Conventions of 1977 have not been acceded to yet by most states. There is thus a tension between state practice and this principle.

    The aspect of accountability of the political head for the resulting human tragedy would deter mindless assaults and would facilitate the political plank in terms of resolution options. The International Criminal Court can be energized to pursue crimes of international concern such as genocide, crimes against humanity and war crimes. Presently there are 108 signatories to the Rome Statute, the founding treaty of the Court. India is not represented and nor is the USA. The deterrent effect would be substantial. For punishing violators of jus in bello retributive justice through International Criminal Tribunals and Special Courts should be pursued until the ICC gains traction. Justice meted out to Milosevic and Karadzic through the International Criminal Tribunal for former Yugoslavia are examples. This would foster the notion of individualized guilt and would act as a deterrent for key political actors.

    To obviate violations at the ground level, militaries would require factoring in civilian casualties from the beginning in the planning and preparation stage. The after-the-fact arrival of aid, under what passes now as Stabilisation Operations, is no longer enough, given population densities and numbers involved. This should dovetail military planning with execution carried out by civilian administrators in league with NGOs. This should form part of curricular innovation at staff colleges. The Disaster Management organizations in states can be co-opted to follow up to ameliorate conditions in conflict zones. This makes political sense in that it would facilitate peace in post conflict conditions. The example of Iraq indicates that the possibility of Asymmetric War in the aftermath of the conflict could be lessened. For this to happen targeting must be against military targets and needs of the affected populations should be met immediately to deal with advancing military forces. This insight is relevant for India that has adopted a Limited War strategy that may necessitate incursions into Pakistan held territory.

    To the extent that tenets of international law are influenced, modified and eventually replaced by state practice, the principle of non-combatant immunity is endangered. The international community is responsible for pressuring the regime and ensuring compliance. In case it proves inadequate for the latter, there would be a convergence between terrorism and state terrorism, generating a self sustaining cycle in terms of violence and its legitimisation. This would add to the erosion suffered by the international order during the Bush years that resulted in illegal detention and rendition, preventive war and expansive interpretation of military necessity. These issues could be revisited, through perhaps an international conference. This will lend more urgency to the long neglected Additional Protocols of the Geneva Conventions dealing with protection of persons in both interstate and intra-state conflicts.

    State practice, often determined by strategic considerations, would require taking into account the political benefits of occupying the moral high ground and the need to preempt the alienation-terrorism cycle. Human security concerns are not adequate to persuade states that operate in the dominant realist tradition. Where the political argument fails, as has been found repeatedly to be the case with Israel and the US, setting a precedent for coercing states to comply with norms is imperative. The opportunity offered by Israel’s targeting of the UN Relief and Works Agency (UNRWA) compound in Gaza should be seized to set up a war crimes investigation by the UN or the ICC, as suggested by the head of its Gaza operations, John Ging. While this is unlikely to dissuade Israel, it could impact calculations of future actors elsewhere. It would help refocus attention on peace making and conflict resolution.