“Negotiating Survival” Book Symposium –Dancing with whoever is there: civilian agency, neutrality and the principle of distinction

About the author(s):

Katharine Fortin

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

Ashley Jackson’s fascinating book ‘Negotiating Survival: Civilian –  Insurgent Relations in Afghanistan’ (Hurst 2021) forms part of an important contemporary effort in political and social science literature to turn away from privileging the study of combatant behaviour in war, looking instead more closely at civilian perspectives and responses. The book focuses on the relationship between the Taliban and civilians, showing how ‘civilian bargaining’ became a fact of life for civilian communities as the conflict in Afghanistan progressed. Although Jackson’s book does not overtly engage much with contemporary debates of international law, there are many findings in her book which will be interesting for lawyers working in the field of armed conflict and I do hope that it will be read widely by international lawyers. In this short blog post, I will name a few aspects that I found particularly interesting and identify a few areas where I would have liked a few more details.  

Its more complicated than just ‘picking sides’

Jackson’s work will be of relevance for scholarship on international humanitarian law because it seeks to reposition civilians in the narrative of armed conflict. She shows that rather than being ‘passive’, neutral actors who are somehow distanced from the dynamics of the conflict and stripped of agency, civilian communities are deeply entangled in the conflict dynamics, carrying social capital and possessing an important degree of agency. Civilians, in this context, navigate between conflict actors, doing what they need to do – and are able to do – to secure the safety of themselves and their communities. In that sense, Jackson’s focus resonates with other recent studies on civilian agency and civilian self-protection by scholars such as Jose & MedieBaines & PaddonKrause and Masullo

Perhaps most interestingly for lawyers, while demonstrating that the survival strategies adopted by civilians are deliberate, Jackson is keen to emphasise that they are far from demonstrations of free will, because they are entirely necessary for their own survival. Considering the coercive environment in which civilians are forced to survive, they often have no choice but to steer a course between the demands of both fighting parties.  Indeed, Jackson argues that commonly used terms such as ‘collaboration’, ‘support’ or ‘taking sides’ ‘betray a fundamental misunderstanding of the civilian-insurgent relationship’ (Jackson, 5) because they do not give enough recognition to the fact that people very often don’t have a choice but to ‘take sides’. ‘Neutrality’, she claims, ‘is nigh on impossible’ (5). Jackson’s observations on this point highlight the dangers of taking a recital of civilians’ actions in times of armed conflict vis-à-vis insurgent groups as evidence of ‘affiliation’, ‘belonging’, ‘support’ or ‘intent’. They underscore the need to be cautious about assessing the fact that people have lived under the control of an armed group – or worked in their civilian administrations – paid taxes or accepted their services (e.g. health care, justice) as a sign that they had an affiliation with that group for the purposes of the prosecution of ‘membership crimes’ under counterterrorism laws (for analysis of such practice, see hereherehere). Jackson’s findings also feed into ongoing legal debates regarding how and whether different functional indicators based on patterns of life can and should be taken as evidence of an ‘armed group membership’ for targeting determination under IHL, perhaps especially in the territory under the control of armed groups where civilian-insurgent interactions are inevitable (FortinRevkinMignot-Mahdavi).

How to reconcile complex notions of participation with the civilian ethos

The road to Kabul, September 2010.

Jackson’s research on Afghanistan leads her to conclude that the idea that ‘civilians’ and ‘combatants’ are completely distinct categories ‘does not match the lived reality of civil war’ (Jackson, 7). In doing so, she highlights what Slim has called a ‘social’ and ‘political ambiguity’ of the ‘civilian ethos’ in his book ‘Killing Civilians: Method, Madness and Morality in War’. The ‘civilian ethos’ is a term Slim uses to denote the fact that civilians are often thought about as innocent, passive, vulnerable and lacking agency. Slim points out how the civilian ethos is challenged by exactly the kind of dynamics uncovered in Jackson’s book when dealing with the Afghan context i.e. ‘complex notions of involvement and participation, including the subtle attributes of sympathy, incitement, encouragement, support, potential, coercion and choice’ (Slim, 188-204, 209). 

Indeed, it seems clear that the civilian ethos is to a certain extent embedded in the legal framework which sketches an image of civilians as passive, uninvolved and entirely vulnerable.  It is for this reason that most IHL lawyers might be cautious about confirming Jackson’s finding that ‘the way we think about civilians and insurgents needs to be thoroughly interrogated and reimagined’ (Jackson, 225). Yet – discomfort aside – it is important that those applying the law in conflict settings do not look away from Jackson’s findings on civilian interaction with insurgents but rather embrace the opportunity to examine these ambiguities closely. Indeed, as Slim argues, when identifying ambiguity, it does not make sense to simply ‘insist that clarity exists’. Instead, ‘it is essential to accept, examine and respect’ it (Slim, 188, see also Sutton, 1). As Kinsella notes there is a constitutive power in asking ‘‘Who is a civilian? Who is a combatant? What is a civilian? What is a combatant? How do we know?’ (Kinsella 196). Kinsella’s argument is that in order to escape the inevitable indeterminacy of the principle of distinction and make it productive, it is necessary to embrace these ambiguities. Most fundamentally, it seems clear that the answers cannot only lie in the law itself but also need to be found outside the law, in fine-grained empirical studies– such as Jackson’s – which seek to uncover military or civilian experiences of armed conflict and how they connect. Impressively, Jackson’s work is based on 418 interviews with members of the Taliban and civilians from fifteen of Afghanistan’s thirty-four provinces, primarily between July 2017 and February 2019. 

Neutrality is ‘nigh on impossible’

To exemplify the point I am making, I will turn to Jackson’s finding that the laws of war impart a notion that civilians are a ‘neutral category’, that does not match with the complexity of real life. This observation – together with her findings that neutrality is ‘nigh on impossible’ – prompts an important consideration of whether ‘neutrality’ (i.e. a prohibition on taking sides) is really included in the ‘civilian ethos’, and if so– whether this is due to an image of civilian-ness that lives in society or whether it emerges from or is required by the legal framework itself. In other words, as I have argued above, it forces iteration of the fundamentally important questions: ‘Who is a civilian? Who is a combatant? What is a civilian? What is a combatant? How do we know?’ (Kinsella 196). 

Certainly, when it comes to international armed conflict, the legal framework recognizes repeatedly that civilians will have a special link with one side of the conflict – via their nationality or allegiance (Mucic et al. (“?elebi?i”) Appeals Judgment 20 February 2001, para. 83)  – and this special bond (generally created by law and therefore often outside the control of the individual) is the very basis on which a whole range of further special protections are conferred upon them. For example, it is this nationality that allows civilians to take part in a levée en masse to defend their homeland, prohibits them from being forced to take part in any work of a military character of the opposing side and confers them with special protection when they are in the hands of a Party of which they are not nationals. While the idea that civilians have a special link to one side of the armed conflict does not mean that civilians can be overtly ‘political’  (see, Article 5 of GCIV, Gordon & Perugini, 81-2) or can take part in hostilities (beyond taking part in a levée en masse) without consequences, it does mean that they are probably unlikely to be forced to feign a formal neutrality to stay safe.  

In non-international armed conflict on the other hand, there is no similar presumption built into international law that civilians will have a special link to one party or the other and also no presumption that civilians will be ‘neutral’. The legal regime confers protection to ‘all’ without adverse distinction founded on race, colour, sex, language, religion or belief, political or other opinion etc. (see for example CA3 and Art 2(1) of APII) and is silent regarding civilians’ allegiances, except providing that civilians should not directly participate hostilities if they wish to remain protected (see Darcy, 124). When setting out a membership criteria for organized armed groups, the ICRC took pains to argue that this category could not include individuals assuming exclusively political, administrative or non-combat functions (ICRC, p34). 

Yet despite this silence, there is no denying that a State’s domestic law continues to have a powerful force in times of armed conflict and contains strong presumptions and expectations of loyalty to the State. Indeed, it is likely due to the working of domestic law, that in practice civilians end up being stuck between a rock and a hard place in non-international armed conflicts. Civilians living under the control of an armed group are often forced as a matter of fact to exhibit loyalty to the insurgency to stay safe (Jackson, 94). But any exhibitions of loyalty to armed groups by civilians will often be unlawful under domestic law and/or may even open them up to make them more targetable by the State. Facing dangers on both sides, it is perfectly understandable that civilians will be forced to signal or perform neutrality, despite neutrality often falling short of the loyalty that both fighting parties prefer and being ‘nigh on impossible’ to achieve (see Baines & Paddon on civilian attempts to be perceived as neutral). While this short analysis concludes that it is not international law that expects ‘neutrality’ from civilians in non international armed conflicts, it also underlines the necessity of going beyond international law when seeking to understand the behaviour civilians aspire to, in particular contexts. This resonates with Sutton’s important conclusions in her recent monograph ‘The Humanitarian Civilian’ . She points out that legal rules are often accompanied by a ‘distinction vernacular’, built up by a whole host of other values, aspirations and priorities (205). 

But what is a civilian anyway?

When considering how Jackson’s findings connect to international humanitarian law, it is important to point out that Jackson’s book hardly engages with legal definitions of ‘civilian’ at all, except to indicate that she finds such definitions ‘limiting’ because they impart an unobtainable notion of civilians as a neutral and distinct category from combatants (Jackson, 20 and 227). This is a pity in some ways, because this lack of engagement with international humanitarian law definitions allows Jackson to make a sidestep, that provides her with the methodological licence not to comment on fascinating findings that seem to hover just under the surface of the text, relating to the disconnect between the legal definition of ‘civilian’ and the messiness of everyday life. Equally, even though she uses the term ‘civilian’ in her work (suggesting that the term also has accepted meaning outside law), Jackson does not provide details of how and whether the supposed non-legal term ‘civilian’ that she uses instead is created, fed, generated, circulated and understood among the different constituencies that she interviews (e.g. ISAF, Taliban, civilians, humanitarians) nor how it relates to the legal term. It would be fascinating to hear more from Jackson on this point either in the context of a future work or in this symposium (for a recent legal work on the meaning of the term ‘civilian’ in Afghanistan, see Voudouri)

It may ask too much of a non-lawyer to engage with these legal debates, and I don’t want to suggest Jackson’s failure to do so is an omission. However, I do still find the lack of mention of international humanitarian law surprising considering that the book is analysing ‘civilian survival’ during a non-international armed.  While on some levels its absence can be explained by the disciplinary lens that Jackson adopts and the non-legal subject of her study (i.e. bargaining), as a legal reader, I still cannot help but wonder whether, when and how often Jackson encountered this framework when asking different actors about civilian efforts to negotiate the protection of themselves and their families. More insights on these issues would provide a fascinating addition to the above referenced work by Sutton, which seeks to understand how international humanitarian law – and the principle of distinction in particular – is enacted, circulated and lived by different actors on a daily basis. It would also contribute to current efforts by several humanitarian NGOs to consider whether, how and when civilian communities might be able to exert their leverage on armed groups, by persuading them to adhere to the laws of war (see here). 

Conclusion

Jackson’s book holds potential to be hugely thought provoking to the legal reader and I very much that hope it will be widely read, with the ambiguities it poses embraced and discussed in different legal and non-legal fora. It represents a major and impressive feat of empirical research, that is made all the more impressive for the security context in which it was conducted. Jackson brings to life characters, voices and perspectives that provide vital insights into how wars are actually lived and experienced by the civilians on the ground, showing how they navigate fragile relationships and leverage social capital. 

I am grateful to comments by Ezequiel Heffes and Helen Kinsella on an earlier draft of this post. 

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