The heartbreaking images of corpses with wrists tied behind their backs littering the streets of Bucha, Ukraine, or grinning American soldiers taunting naked prisoners covered in feces and blood at Abu Ghraib, Iraq, tell us a story : It is human individuals who cause the ills of war and ultimately bear the brunt of it. This story finds its echo in a number of intellectual projects, such as “Individualization” of war or the “Humanization” of the Laws of Warwho seek to study war and improve its effects from the individual’s point of view.
What remains insufficiently analyzed is what it means to be an “individual” in war, or, more fundamentally, what “human” is? The word “individual” derives from “indivisible”; To speak of the “human individual” assumes the human being as a single-minded, self-determined entity rather than as a collection of social forces. But to understand the victims and perpetrators of the evils at Bucha or Abu Ghraib as human individuals in just this atomistic sense is more mystifying than clarifying. When the contexts of war that shape these evils are less emphasized, they become mysterious even as they are outrageous – inexplicable evils are doubly shocking.
“What is still under-analyzed is what it means to be an ‘individual’ in war, or, more fundamentally, what ‘human’ is?”
Yet this was precisely the perspective for human rights networks to focus their advocacy strategies on “Problems the causes of which can be attributed to the intentional (intentional) actions of identifiable persons” with a “sufficiently short and clear” causal chain instead of “Problems the causes of which are irrevocably structural in nature”. Under this strategy, “wartime human rights abuses” became synonymous with war crimes, and individual criminal accountability was seen as the primary tool to mitigate the harmful effects of war. This development is music to the ears of some politicians who are interested to externalize collective war guilt while Legitimation of military actions that have been cleared of individual misconduct. It also provides a gateway for certain ethicists to impose stricter ethical requirements on individuals at war the criminalization of aggression throughout the chain of command, including foot soldiers.
This individualistic focus in understanding war is often contrasted with the opposite idea “War is a practice between collectives and especially sovereign states.” As Rousseau observed from a holistic perspective, War “is not a relationship between man and man, but a relationship between state and state, in which individuals are enemies only by chance.”
This dichotomy between individualism and wholeness, the central theme in social theories, has crucial implications for how we deal with war and its legal regulation. While an individualistic approach to war would focus its regulation on inducing self-determined individuals to engage in desired warfare behavior, a holistic approach would focus its regulation on changing the structural conditions that shape war. Most modern social theories reject the totalization of both extremes and recognize the role of both the individual and structural conditions in shaping social action, including in war. This social lens provides important insights into one of the unresolved dilemmas of international law today – the relationship between international humanitarian law (IHL) and international human rights law (IHRL), which appears to prohibit behaviors permitted by IHL.
“This dichotomy between individualism and wholeness, the central theme in theories of society, has crucial implications for how we deal with war and its legal regulation.”
From a social point of view, war always represents a primary failure of the law to create the desired structural condition – peace. This omission relegates international humanitarian law to a secondary norm for getting individuals to do what they can as individuals curb failure by drawing a line between behavior for which combatants are entitled to immunity (as legitimate acts of war that would otherwise be criminalized in peacetime) and other behavior that could result in criminal prosecution (possibly aggravated as war crimes). IHL therefore sees a world of individuals and seeks to regulate their behavior in circumstances that they did not choose themselves. In contrast, IHRL imposes requirements on structural conditions for which states and other entities with structural power are responsible. IHRL thus sees a world of structures and seeks their transformation. These different layers of social reality (individual behavior vs. structural conditions) addressed by HVR and IHRL are at risk of being overshadowed by attempts to assimilate IHRL with IHR (e.g. through the doctrine of lex specialized) or IHL to HERL (e.g. through Criminalization of “legitimate acts of war” under certain revisionist just war theories) or just anyone to anyone else (through the liquid legal technique of systemic integration).
Attention to the structural dimension of war in no way privileges sovereign state interests, endangers human rights or exonerates war criminals. On the contrary, only by recognizing the potency of structural conditioning can the structural power of states be appropriately questioned, and the demand for structural enabling of human rights legitimized and raised the dividing line between good and evil that ran through the hearts of individuals who killed and tortured in Bucha and Abu Ghraib can really be recognized.
Featured image by Jr Korpa on Unsplash (public area).