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1 1 GENDER, INNOCENCE, AND CIVILIZATION Law is a rule or measure of action by which one is led to an action or restrained from acting. The word law (lex) is derived from ligare, to bind, because it binds one to act....[Therefore] a rule or measure is imposed by being applied to those who are to be ruled and measured by it. Wherefore, in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. —Thomas Aquinas, Summa Theologica, Question 90 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 in Afghanistan, General Richard Myers said, “the last thing we want are any civilian casualties. So we plan every military target with great care.”1 Charles Allen, deputy general counsel for the U.S. Department of Defense, stated in an interview on December 16, 2002,“with regard to the global war on terrorism, wherever it may reach, the law of armed conflict certainly does apply...in the sense of the principle of distinction.”2 Active military operations in both Afghanistan and Iraq conformed to the laws of war insofar as targeting decisions were evaluated with regard to the distinction to be made between combatant and civilian. On September 16, 2008, in his capacity as commander of the North Atlantic Treaty Organization–International Security Assistance Force (NATO-ISAF), U.S. Army General David D. McKiernan averred, “NATO and American officials in Afghanistan believe that one civilian casualty is too many.”3 This statement followed the release earlier in the month of a tactical directive reviewing procedures for using lethal force, the singular purpose of which was reducing civilian casualties .Both the directive and the general’s statement were in response to widespread condemnation of civilian casualties resulting from an air strike in the province of Herat. A week later, the UN Security Council extended the NATO-ISAF mission in Afghanistan, but only after issuing explicit cautions about moderating civilian 2 CHAPTER 1 casualties. This followed specific changes in NATO-ISAF and Operation Enduring Freedom (OEF) tactics in Afghanistan in 2007 that included delaying attacks when civilians might be harmed. Furthermore, as Lawrence Wright reported in the June 2008 issue of the New Yorker, events of the previous year revealed that even organized networks of violence such as Al Qaeda are not unified in their acceptance of civilian casualties as a necessary normative and strategic dimension of armed conflict. In July 2009, the Taliban, under the directive of Mullah Omar, issued a new code of conduct for the Afghanistan Mujahedeen that specifically instructed them to “do their best to avoid civilian deaths and injuries and damage to civilian property.”4 These actions suggest that the protection and defense of civilians during armed conflicts are an elemental strategic and normative commitment on the part of the majority of states and organized militaries and insurgencies; moreover , they have been for some time. Beginning with his September 1999 “Report to the Security Council on the Protection of Civilians in Armed Conflict,” Kofi Annan, former UN secretary-general and Nobel laureate, repeatedly stated that “the plight of civilians is no longer something which can be neglected, or made secondary, because it complicates political negotiations or interests.”5 The centrality of the civilian was evident in the conduct of the 1999 NATO intervention in Kosovo. General Wesley K. Clark, supreme allied commander of NATO during the Kosovo war, writes,“Both we and the Serbs realized at the onset how critical this issue would be. It was the most pressing drumbeat of the campaign: minimize , if not eliminate, civilian casualties.”6 Significantly, it is not only the United Nations, the United States, and NATO that, in increasingly rare agreement, hold the principle of protection of and respect for civilians in great regard. Signed and ratified by a diverse array of states, the mandate of the International Criminal Court (ICC) explicitly reiterates the essential distinction between combatant and civilian, criminalizing intentional actions against civilians. In addition, the statutes of both regional criminal tribunals for Rwanda and the former Yugoslavia preceded the ICC in their acceptance of this distinction as definitive of the laws of war. Notably, these institutions were created soon after...

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