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The Image before the Weapon

A Critical History of the Distinction between Combatant and Civilian

Helen M. Kinsella

Publication Year: 2011

Since at least the Middle Ages, the laws of war have distinguished between combatants and civilians under an injunction now formally known as the principle of distinction. The principle of distinction is invoked in contemporary conflicts as if there were an unmistakable and sure distinction to be made between combatant and civilian. As is so brutally evident in armed conflicts, it is precisely the distinction between civilian and combatant, upon which the protection of civilians is founded, cannot be taken as self-evident or stable. Helen M. Kinsella documents that the history of international humanitarian law itself admits the difficulty of such a distinction.

In The Image Before the Weapon, Kinsella explores the evolution of the concept of the civilian and how it has been applied in warfare. A series of discourses-including gender, innocence, and civilization- have shaped the legal, military, and historical understandings of the civilian and she documents how these discourses converge at particular junctures to demarcate the difference between civilian and combatant. Engaging with works on the law of war from the earliest thinkers in the Western tradition, including St. Thomas Aquinas and Christine de Pisan, to contemporary figures such as James Turner Johnson and Michael Walzer, Kinsella identifies the foundational ambiguities and inconsistencies in the principle of distinction, as well as the significant role played by Christian concepts of mercy and charity.

She then turns to the definition and treatment of civilians in specific armed conflicts: the American Civil War and the U.S.-Indian Wars of the nineteenth century, and the civil wars of Guatemala and El Salvador in the 1980s. Finally, she analyzes the two modern treaties most influential for the principle of distinction: the 1949 IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War and the 1977 Protocols Additional to the 1949 Conventions, which for the first time formally defined the civilian within international law. She shows how the experiences of the two world wars, but particularly World War II, and the Algerian war of independence affected these subsequent codifications of the laws of war.

As recognition grows that compliance with the principle of distinction to limit violence against civilians depends on a firmer grasp of its legal, political, and historical evolution, The Image before the Weapon is a timely intervention in debates about how best to protect civilian populations.

Published by: Cornell University Press

Title Page, Copyright, Dedication

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pp. i-vi

Contents

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pp. vii-viii

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Acknowledgments

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pp. ix-x

...Friends and family are a solace and a delight, a formidable redoubt against the common miseries and elations of writing. This first book is a testament to their fortitude and patience, as well as to their admonitions and stern encouragements. It would be folly to believe I can thank them sufficiently for their interest in and support of this book, or for the love and kindness they have shared...

Abbreviations

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pp. xi-xiv

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1. Gender, Innocence, and Civilization

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pp. 1-23

...Since the start of the ground wars in Afghanistan (2001) and in Iraq (2003), the distinction between combatant and civilian has remained a significant referent of engagement and standard of judgment guiding the operational strategy of the U.S. military and allies. In 2001, referring to operations...

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2. Martial Piety in the Medieval and Chivalric Codes of War

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pp. 24-52

...How does this series of discourses on gender, innocence, and civilization inform the conventional narrative of the development of the principle of distinction? I begin with the conventional narrative as presented by three of its most formidable authors: Theodor Meron, an international humanitarian lawyer...

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3. Civilization and Empire: Francisco de Vitoria and Hugo Grotius

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pp. 53-81

...The period between the late fifteenth and seventeenth centuries was a tumultuous time of discovery, conquest, travel, and transformation. As one commentator noted, “even more than other history the Age of Discovery is men come upon strangeness and traveling it mostly in dream...

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4. General Orders 100, Union General Sherman’s March to Atlanta, and the Sand Creek Massacre

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pp. 82-103

...In 1863, President Abraham Lincoln observed that “civilized belligerents . . . do all in their power to help themselves or hurt the enemy . . . except things regarded as barbarous or cruel . . . the massacre of vanquished foes, and of non-combatants male and female...

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5. The 1899 Martens Clause and the 1949 IV Geneva Convention

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pp. 104-126

...Although the particular purpose of the 1949 Geneva Convention was to rectify, in light of the past world wars, the neglect of the situation and status of the civilian in the laws of war, perhaps its avowed model, General Orders 100, was the wrong place to start...

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6. The Algerian Civil War and the 1977 Protocols Additional

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pp. 127-154

...The 1954–1962 French-Algerian War—its methods, its debates, and its consequences—altered the way in which wars of national liberation and decolonization were identified and understood, and introduced a new category of combatant (as well as a new category of war) into international humanitarian law. It occupies a “seminal place in the history of European decolonization...

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7. The Civil Wars of Guatemala and El Salvador

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pp. 155-186

...The civil wars of Guatemala and El Salvador tell us much about the effects of the discourses of gender, innocence, and civilization and their roles in defining exactly who should be considered a civilian and who should be considered a combatant. These conflicts raise all the issues that were debated during the codification...

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8. Responsibility

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pp. 187-198

...In 2003, voicing the concerns of some scholars and practitioners of the laws of war, Colonel Kenneth Watkin argued that, in a post-9/11 world, what “remains to be seen is whether the [principle of distinction] . . . provides an accurate, relevant, and ultimately credible basis upon which to regulate modern armed conflict...

Notes

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pp. 199-254

Index

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pp. 255-260


E-ISBN-13: 9780801460784
Print-ISBN-13: 9780801449031

Page Count: 264
Publication Year: 2011

Edition: 1