This essay is part of a symposium on Neve Gordon and Nicola Perugini’s Human Shields. All contributions to the symposium can be found here.
It is a real pleasure to comment on this excellent book on the history, law, and politics of human shields. Throughout the book, Neve Gordon and Nicola Perugini argue that the human shield brings into relief many of the political and social dynamics of our societies. The book throws light on a humanity that is always internally-riven and hierarchically-ordered. Humans, the authors tell us, are differentially-valued, and these value judgements shape who is capable of being a human shield in a specific political context. To be a human shield, one’s humanity must be valued—and not just by one’s own side, although that does matter, but also by one’s adversary. Class, race and gender have historically shaped who is considered of sufficient value to be used as a human shield, but these forms of valuation are neither static nor universal. “Humanity”, as Gordon and Perugini powerfully demonstrate throughout the book, is “a political rather than a universal category” (6).
My comments here will focus on this political category, “humanity,” in its double valence: humanity as signifying a more or less inclusive belonging to an anthropological species, on the one hand, and as a form of sentiment (with its appropriate forms of behaviour) on the other. “The word human,” Jean-Pictet noted in his Commentaries on the fundamental principles of the ICRC back in 1979, “is used to describe a man who is good to his fellow beings.” And yet, as this book makes clear, what is entailed in being “good to one’s follow beings” has never been a matter of consensus. Humanitarian arguments, and invocations of humanity, have historically been mobilised to justify the use of organised violence as well as to restrain it.
In examining the picture of humanity that emerges from these pages, I want to focus on two figures who destabilize a conception of humanity in warfare whose foundation is the distinction between combatants and non-combatants (or civilians): the first is, of course, the book’s titular figure: the human shield, who, the book notes, falls “between the laws of armed conflict’s two axiomatic legal figures” and so challenges the basic structure and logic of a law premised on the possibility of their distinction (8). The second figure is the double of the human shield: the so-called irregular—the civilian fighter, the partisan, the guerrilla. This second figure, too, destabilizes the principle of distinction, and has been a central source of conflict in the history of the laws of armed conflict—conflict that recurs in contemporary arguments about “direct-participation in hostilities’ and the so-called ‘farmer-by-day/fighter-by-night.’
These two figures, as the book notes, are deeply entwined—indeed, at times, they appear to be the same figure seen from different perspectives. So, I have two questions about these figures, and their implications for the idea of humanity and the principle of distinction.
The first question draws on work I am currently doing on the role of Henry Dunant and the organisation he founded, the Red Cross, in the consolidation of a distinctive conception of humanity in the late-nineteenth century. There, I examine both Dunant’s role as a colonial settler in Algeria and his attempts at arbitration during the Paris Commune, to demonstrate the distinctive ways in which his conception of humanity was bordered—by colonised subjects, on the one hand, and armed civilians, on the other. The second draws on work with Ihab Shalbak on the role of National Liberation Movements during the drafting of the Additional Protocols in the 1970s. This work examines the tense attempts of such movements, notably the Viet Cong and the Palestine Liberation Organization, to write themselves into legal texts for which the principle of distinction was the central tenet of humane warfare, while also fighting what they conceptualised as “people’s wars”, which necessarily blurred the border between civilian and combatant.
The second chapter of Human Shields, “Irregulars” is devoted to the Franco Prussian war, when the question of the status of irregular fighters on the French side who resisted German occupation became central to attempts to regulate armed conflict. “Anticipating the warfare techniques used a century later by the Chinese Communist insurgents led by Mao Tse-Tung and later adopted by the Viet-Cong,” Gordon and Perugini write, the French francs-tireurs (or free shooters) fought in the regions from which they hailed and hid among fellow civilians” (27).
Like representatives of colonial powers and the U.S. state in the twentieth century, the German occupiers were horrified by the disorder of a battlefield populated by civilians, and (also like these later powers) they received orders that suspected francs-tireurs could be shot on the spot. They also conducted reprisals against civilians, punishing whole villages for any attacks launched from within them, and, of course, they utilised human shields, tying notable villagers to their trains in order to deter the attacks of their fellow citizens.
This was the background of the Brussels Conference, called by Russia in 1874 in an attempt to set out the rights and duties of occupying armies. But, between those two events, and, I would suggest, of equal significance for the subsequent development of the laws of armed conflict, was the Paris Commune, which came in the wake of the war as armed civilians refused to hand back their arms and accept the humiliating peace terms negotiated at Versailles. It was ultimately the Versailles administration of Adolphe Thiers which crushed the Commune, albeit with the aid of the Prussians, massacring more people in one Bloody Week (Le Semaine Sanglante), than were executed in the Reign of Terror following the French Revolution.
The example of the Commune, in which an armed civilian population fought against regular troops of multiple armies, terrified European governments of the time, who saw the rise of nationalism and democracy as a threat to their own holds on power and to the European order as a whole. The Russian publicist Fedor Martens, who went on to play the key role in drafting the Brussels Declaration, described it as “an example destined forever to remind all nations of this fundamental truth: it is easier to hand out weapons than it is to retrieve them.” Karl Marx, on the other hand, held up the suppression of the Commune as the event after which the “civilization and justice” of the bourgeois order “stand forth as undisguised savagery and lawless revenge.” Henry Dunant, who was in Paris during both the siege and the Commune, was a horrified to witness civilians in arms and he focused his efforts on attempting to convince all sides to remove women, children and the elderly from Paris to a camp where they would be provided with food and shelter. Keeping “innocent victims” away from the fighting was the only way, he believed, to prevent “indescribable disorder.” Faced with an armed popular uprising, Dunant drew the lesson that civilians would only be protected if they were clearly separated from the fighting.
A century later, in the context of new wars of national liberation against European colonialism, and new legal disputes about the status of irregular fighters, the experience of the Commune continued to resonate. Prior to the drafting of the Additional Protocols, the journal of the left-wing “Popular Front for the Liberation of Palestine” described the Commune as “among the most fertile militant experiences in history” and argued that it showed “many parallels with the current experience of the Palestinian resistance.” In the wake of the fall of Saigon, what the South Vietnamese had named President John F. Kennedy Square was renamed Paris Commune Square (Công trường Công xã Paris).
My question concerns the implications of these various forms of popular uprising for how we understand the principle of distinction, and its destabilization. In the chapter on irregulars, Gordon and Perugini describe the Brussels declaration, formulated in the wake of the Franco-Prussian war and developed with input from humanitarians, including Dunant, as perhaps the “most progressive legal document introduced by major powers,” and they attribute the failure of the Brussels Declaration (which never became a binding convention) to the increasing consolidation of a state-centric, positivist vision of order, which must exclude the irregular fighter.
Yet, the declaration itself was central to the development of a new ideal of regular war. Although it ultimately incorporated the levée en masse, the spontaneous resistance of civilians against an invading army, it did so only in territories that had not yet been “placed under the authority of the hostile army.” Once such authority was established, civilians were expected to submit unconditionally to the occupier. According to the British representative in Brussels, the Russian draft (from which many of the provisions of the final Declaration were taken) so clearly favoured occupying armies that it became known in European ministries as “the code of conquest.”
This raises the question of the sense in which Gordon and Perugini see the Brussels Declaration as progressive, and, more broadly, about how the book understands progress in warfare and in the laws of war. Early in the book, the authors suggest that the history of human shields “reveals the ambivalent, and at times lethal, character of progress” (14). The idea of progress recurs at a number of points in the book, often associated with further codification of civilian protections and with what the book describes as increasing the value of civilian lives. In the chapter on the Boer war, for instance, we read that humanitarianism, while limited and racialized, nonetheless “introduced a progressive ethical imperative” in that it mobilised concern for human well-being that extended beyond the bounds of co-patriots (51).
Later, the authors remark that the process of codification following WWII, which resulted in the United Nations Charter, the Universal Declaration of Human Rights, the Convention Against Genocide and the Four Geneva Conventions of 1949 for The Protection of Victims of War, “undoubtedly constituted an element of progress” (101). As evidence of this progress, the authors cite the historic introduction of a convention devoted to civilian protection, and, perhaps more controversially, the institutionalization of the principle of distinction as a “global moral norm” (101). From this perspective, progress appears to be a process by which “the value attributed to civilians” is augmented as belligerents are subjected to increasing legal restrictions (101). Yet, Gordon and Perugini also note that the aim of such restrictions was to “protect innocent bystanders during war” (101). Just as Dunant responded to the Paris Commune with an attempt to exclude civilians from the battleground, the increasing value attributed to civilians in the laws of armed conflict has always been bound up with their increased passivity and political ‘innocence.’ Seen from another perspective, these progressive developments can be seen as the further entrenchment of an anti-republican conservatism, for which neither war nor politics should be the concern of the people at large
This was very different to the models of progress imagined by Communards, and by those National Liberation Movements, who, during the drafting of the Additional Protocols, often distinguished not between civilians and combatants but between progressive wars of national liberation, and reactionary imperialist wars.
My second question is therefore whether the model of humanity that emerged in the nineteenth century, including its principle of distinction, is too bound up with a counter-revolutionary project (and an attempt to suppress the figure of the irregular) to be useful to those who have sought to overcome entrenched power hierarchies and forms of domination, both in the twentieth-century, and today. As Gordon and Perugini note in their chapter on “People’s Wars”, Mao Tse Tung, and those who followed him in waging such wars, argued that a people’s war entailed tearing down the “Great Wall” between combatants and civilians (86). “By saying that civilians can very quickly become soldiers,” Mao wrote, “we meant that it is not difficult to cross the threshold” (87). Gordon and Perugini note that the existing legal framework was not crafted to regulate conflicts between regular armies and guerrilla forces, like Mao’s, engaged in people’s wars. And yet, this is only because, from the Brussels Conference onwards, the most powerful states objected to any attempts to legitimise such wars and worked to cleanse the battlefield of irregular fighters. As National Liberation Movements talked of people’s wars, international lawyers spoke of protecting innocent civilians.
This principle of distinction may have aimed to protect non-combatants, but its results were often starkly similar to those of counter-insurgency campaigns, which sought to forcibly distinguish ‘fighters’ from ‘farmers’ in order to isolate the former and expose them to attack. As Gordon and Perugini note, in the context of the U.S. War in Vietnam U.S. forces dropped leaflets on Vietnamese villages, stating: “The VC say they are strong, why must they continue to use defenceless women and children as shields and your villages for their protection” (92). It is clear why, during the drafting of the Additional Protocols, the delegate of North Vietnam stressed the need for humanitarian bodies to be “more astute in detecting the false humanity which served as a pretext for forced evacuation, a method of war which had been inherent in aggressive imperialism from the ‘strategic villages’ to the ‘mass exodus.’” What is less clear is the extent to which this “false humanity” can be distinguished from the humanity of humanitarian organisations and international humanitarian law. In both cases, what is at stake is an attempt to distinguish combatants from civilians, and to treat the passivity of the latter as the price of their protection. It is to the great credit of this book that it illuminates the contortions and complicities of a politics of humanity, and the extent to which humanitarian claims have not only ameliorated state violence but have also legitimised and sanctioned it.
 Jean Pictet, “The Fundamental Principles of the Red Cross,” International Review of the Red Cross (1961 – 1997) 19, no. 210 (June 1979): 145, https://doi.org/10.1017/S0020860400019872.
 Nils Melzer and International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva: International Committee of the Red Cross, 2009).
 Alistair Horne suggests that between 20-25,000 people were killed during the suppression of the Commune. Alistair Horne, The Fall of Paris: The Siege and the Commune 1870-71 (London: Penguin, 2007), 418.
 Martens cited in Karma Nabulsi, Traditions of War: Occupation, Resistance, and the Law (Oxford: Oxford University Press, 1999), 173.
 Karl Marx, “The Civil War in France,” in Karl Marx: Later Political Writings, ed. Terrell Carver (Cambridge: Cambridge University Press, n.d.), 200.
 Bernard Gagnebin, “Le Rôle d’Henry Dunant Pendant La Guerre de 1870 et Le Siège de Paris,” International Review of the Red Cross (Cambridge University Press, April 1953), https://doi.org/10.1017/S102688120015860X.
 “Lessons from the Paris Commune,” Al-Hadaf (Beirut), February 28, 1970, translated by The Palestinian Revolution, 2016, http://learnpalestine.politics.ox.ac.uk/uploads/sources/588d79fa48dd2.pdf
 de Pourtales, “Henry Dunant, Promoter of the 1874 Brussels Conference, Pioneer of Diplomatic Protection for Prisoners of War,” International Review of the Red Cross, accessed June 17, 2020, http://international-review.icrc.org/articles/henry-dunant-promoter-1874-brussels-conference-pioneer-diplomatic-protection-prisoners-war; Tracey Dowdeswell, “The Brussels Peace Conference of 1874 and the Modern Laws of Belligerent Qualification,” Osgoode Hall Law Journal 54, no. 3 (August 4, 2017): 805–50.
 Cited in Nabulsi, Traditions of War: Occupation, Resistance, and the Law, 6.
 As Amanda Alexander notes of the drafting of the Additional Protocols, ‘guerrilla warfare was not virgin legal territory at the Diplomatic Conference.’Amanda Alexander, “International Humanitarian Law, Postcolonialism and the 1977 ‘Geneva Protocol I,’” Melbourne Journal of International Law 17, no. 1 (2016), 7.
 Nguyen Van Luu (Democratic Republic of Viet -Nam), Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Vol. V, Federal Political Department Bern, 1978, 362.