Identifying the enemy : civilian participation in armed conflict

289 Pages·2015·2.2 MB·English

by  Crawford

IDENTIFYING THE ENEMY

Identifying
the Enemy
Civilian Participation in Armed Conflict
EMILY CRAWFORD
1
1
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For James, for setting the bar
For Graham, for his determination
And for Red, for always making everything better

Preface
For as long as there have been armed conflicts, civilians—persons we can col-
loquially define as those who are not part of the armed forces of their State
or governing authority—have been involved in those conflicts. Civilians have
been subjected to siege warfare,1 to starvation tactics,2 and to enslavement at
the hands of occupying powers.3 Civilians have taken up arms to defend their
homelands from invasion: in post-revolutionary France, the Republican govern-
ment, facing possible invasion by European neighbours, called on its citizenry
to defend France. This was the levée en masse, the mass uprising of the entire
populace of a threatened nation, as outlined in the Decree of 23 August 1793:
from this moment until the enemies are driven out from the territory of the Republic,
all Frenchmen are in permanent requisition for service in the army. Young people
will go to combat; married men will forge weapons and transport supplies; women
will make tents and clothes and serve in hospitals; children will shred old clothes;
the elderly will get themselves carried to public squares in order to excite the courage
of the warriors, to preach hate of the kings and unity of the Republic.4
Indeed, the event generally considered to be the origin of modern international
humanitarian law—the Battle of Solferino5—involved civilians from the
township of Castiglione delle Stiviere providing medical aid and relief to the
wounded and sick of the armies of France, Austria, and Piedmont–Sardinia
who had been left behind on the battlefield.6 Civilians have always had ‘a role
to play in military strategies.’7
1 See generally Alexander Gillespie, A History of the Law of War: Volume 2—The Customs and
Laws of War with Regards to Civilians in Times of Conflict (Hart, 2011), at 52–63.
2 Alexander Gillespie, A History of the Law of War, at 52–63.
3 Alexander Gillespie, A History of the Law of War, at 103–41.
4 Decree of the National Convention of 23 August 1793, reprinted in Thomas Hippler, Citizens,
Soldiers and National Armies: Military Service in France and Germany, 1789–1830 (Routledge,
2008), at 82.
5 Simon Chesterman, ‘Global Norms, Local Contexts’, in Simon Chesterman (ed.), Civilians
in War (Lynne Rienner, 2001), at 1; see also, Marco Sassòli, Antoine Bouvier, and Anne Quintin,
How Does Law Protect in War? Cases, Documents, and Teaching Materials on Contemporary Practice
in International Humanitarian Law (3rd edn, ICRC, 2012, hereinafter How Does Law Protect in
War), at 195.
6 See generally Jonathan Crowe and Kylie Weston-Scheuber, Principles of International
Humanitarian Law (Elgar, 2013), at 29–30, and Gary Solis, ‘An Introduction to the 1949 Geneva
Conventions’, in Geneva Conventions (Annotations by Fred Borch, Kaplan, 2010), at 3–6, on
Dunant and his early humanitarian work.
7 Anicée van Engeland, Civilian or Combatant? A Challenge for the 21st Century (OUP,
2011), at xi.
viii Preface
This book focuses on one particular aspect of how civilians are involved
in armed conflict, specifically, when they take direct and active part in the
hostilities. It examines the increasingly difficult task of identifying when
civilians take direct part in hostilities, and how such direct participation
influences the conduct of parties to the conflict and affects the law that gov-
erns the conduct of parties to armed conflicts: the law of armed conflict, also
known as international humanitarian law (IHL).8
The scope of this book is limited to a few unique but interconnected areas
that have been of particular concern in the last ten to twenty-five years: the
practice of targeted killing, the emergence of cyber warfare as a nascent
method of warfare, the growth of the private military and security com-
pany, and the problems that arise from high-level criminal activity that often
occurs alongside existing military engagements. As such, certain categories
of civilians who take direct part, such as child soldiers, are excluded from the
scope of this book. This is not because the question of child soldiers bears no
connection to questions of direct participation, but rather that an appropriate
examination of the issue of child soldiers is beyond the scope of this book.9
Instead, this book looks at the emerging trend towards increased civilian
involvement and participation in armed conflict, and what issues that raises
for the current law of armed conflict, and those who must observe the law.
The research is current to January 2015.
A work such as this is never done in isolation. This book is the result
of the post-doctoral fellowship I was fortunate enough to receive from the
University of Sydney, which gave me the luxury of three years to investi-
gate this particular area of IHL. Furthermore, I could not have finished
this without the help of a number of colleagues and friends who provided
invaluable and unceasing support, guidance, feedback, and encouragement.
At the University of Sydney, my thanks go to my office neighbours and
mentors, Professor Ben Saul and Professor Tim Stephens, who were always
available with a kind word and an expert eye. Professor Margaret Harris
at the Faculty of Arts and Social Sciences was also invaluable in helping
me craft the proposal that became the post-doctoral study; this work would
not exist were it not for her gracious and patient supervision and support.
At Oxford University Press, thanks go to my commissioning editor Merel
Alstein, who helped me shepherd the proposal from its earliest stages to its
current form, and to the editorial team of Anthony Hinton, Emma Endean,
8 The terms law of armed conflict and IHL are used interchangeably in this text.
9 And is indeed worthy of its own standalone examination: see, eg, Matthew Happold,
Child Soldiers in International Law (Manchester University Press, 2005), and Ilene Cohn, Child
Soldiers: The Role of Children in Armed Conflict (OUP, 1994).
Preface ix
and Jamie Berezin, who helped me get the manuscript to print; also invalu-
able were my reviewers, especially Professor Stephen Haines, all of whom
were unstinting in their expert advice. My colleagues and friends, Professor
Helen Irving, Dr Rayner Thwaites, Dr Alison Pert, Ms Elisa Arcioni,
Dr Jacqueline Mowbray, Professor Chester Brown, and Ms Irene Baghoomians
at the Sydney Law School, Dr Catherine Renshaw at University of Western
Sydney, and Professor Michael Lewis at Ohio Northern University were also
a constant source of friendship and good humour. Professor Lewis especially
was of invaluable help in honing my arguments and perspectives on the ques-
tions raised by drone warfare. Thanks must also go to my family—Marisa,
Rebecca, Graham, James, Daniel, Sofia, Stella, Sadie, Lynn, Philip, Liv,
Deme, and Lachlan—who always believed in me, even if some of them were
too young to understand. Finally, thanks and more go to James Ryan, who
never complained when I took over the dining table, who appreciates a good
anagram, and who always makes everything better.
Emily Crawford
Sydney
January 2015