The international humanitarian actor as 'civilian plus': the circulation of the idea of distinction in international law

Abstract

This socio-legal study reconceptualizes the principle of distinction in international humanitarian law (IHL). Moving away from the dominant vision of fixed civilian and combatant entities separated by a bright line, it introduces an alternative vision of how distinction works in different places and at different times, or what we might think of as ‘a new law of distinction’. This account is grounded in the practices of international actors across a number of global sites: from Geneva and The Hague to civil–military training programmes in Europe and the operational context of South Sudan. The main character of interest is the international humanitarian actor, who is situated alongside other international actors, such as NATO soldiers, UN peacekeepers and UN civilian actors. As is shown, the everyday interactions of these actors are shaped by contests over distinction. In the law of distinction that is distilled from these practices, qualities of ‘civilianness’ and ‘combatantness’ float around in the air, able to attach to any individual at any given moment, depending upon their self-presentation, behaviour and context. Three new figures emerge around these qualities: the ‘civilian plus’, the ‘mere civilian’ and the ‘civilian minus’. The ‘civilian plus’, this study proposes, represents a special status that international humanitarian actors disseminate on a daily basis. This special status relies upon a concept of civilianness that is relative, contingent and aligned with an alreadyfragmented civilian category in IHL. The distinction practices of humanitarian actors also have an important performance component, designed to influence the perceptions of an omnipresent observer – the ‘phantom local’. The overarching aim of this inquiry is to uncover and contend with distinction’s perpetually disrupted nature. The study dismantles the idea of distinction as we know it, enabling us to recognize distinction in strange and unfamiliar forms