The heartbreaking images of corpses with wrists tied behind their backs littering the streets of Bucha in Ukraine, or the smiles of American soldiers mocking naked prisoners parading covered in excrement and blood in Abu Ghraib in Iraq tell us a story: these are the human individuals who cause the evils of war and who ultimately bear the brunt of it. This story finds an echo in a series of intellectual projects, such as the “individualization” of war or the “humanization” of the laws governing warwho seek to study war and improve its effects from the perspective of individuals.
What remains under-analyzed is what it means to be an “individual” in times of war or, more fundamentally, what is a “human”? The word “individual” is derived from “indivisible”; to speak of a “human individual” presupposes a human being as a determinate and self-determined unit, instead of an assemblage of social forces. But understanding the victims and perpetrators of the evils of Bucha or Abu Ghraib as human individuals only in this atomistic sense mystifies more than it illuminates. De-emphasizing the contexts of war that shape these evils makes them mysterious even if outrageous – unexplainable evils are doubly shocking.
“What remains under-analyzed is what it means to be an ‘individual’ in war or more fundamentally, what is ‘the human’?”
Yet this was precisely the view of human rights networks that had designed their advocacy strategies to focus on “problems whose causes can be traced to the deliberate (intentional) actions of identifiable individuals” with a “sufficiently short and clear” causal chain rather than “problems whose causes are irremediably structural”. Under this strategy, “wartime human rights violations” have become synonymous with war crimes, and individual criminal responsibility has come to be seen as the primary tool for mitigating the adverse effects of war. This development is music to the ears of some politicians concerned about externalizing collective war guilt while legitimizing military actions sanitized of individual misdeeds. It also provides a gateway for some ethicists to adopt stricter ethical requirements for individuals in times of war through the criminalization of aggression throughout the chain of command, including infantrymen.
This individualistic focus in understanding warfare is often contrasted with the opposing idea that “War is a practice between collectives, and particularly between sovereign states.” As Rousseau noted from a holistic perspective, war “is not a man-to-man relationship, but a state-to-state relationship, in which individuals are enemies only by accident.”
This dichotomy between individualism and holism, a central question of social theories, has a crucial significance in our approach to war and its legal regulation. Whereas an individualistic approach to warfare would focus its regulation on inducing self-determined individuals to engage in desired wartime conduct, a holistic approach would focus its regulation on transforming the structural conditions that shape warfare. Most modern social theories reject totalization at either extreme and recognize the roles of individuals and structural conditions in shaping social actions, including in times of war. This social lens provides important insight into one of the unresolved international law dilemmas of our time – the relationship between international humanitarian law (IHL) and international human rights law (IHRL), which appears to prohibit behavior authorized by IHL.
“This dichotomy between individualism and holism, a central question of social theories, has a crucial significance in our approach to 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 failure relegates IHL to the rank of a secondary norm to encourage individuals to do what they can. as individuals to contain failure, drawing a line between behaviors for which combatants are entitled to immunity (as legitimate acts of war that would otherwise be criminalized in peacetime) and other behaviors that might attract liability (potentially aggravated as war crimes). IHL therefore sees a world of individuals and seeks to regulate their conduct in circumstances that are not of their choosing. In contrast, IHRL sets 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 conduct vs. structural conditions) addressed by IHL and IHRL risk being confused by attempts to equate IHRL with IHL (e.g. through the doctrine of lex specialis) or from IHL to IHRL (for example by criminalization of “legitimate acts of war” according to some revisionist just war theories) or anyone to another (via the fluid system integration legal technique).
Paying attention to the structural dimension of war in no way privileges the sovereign interests of States, compromises human rights or exonerates war criminals. On the contrary, it is only by recognizing the power of structural conditioning that the structural power of states can be properly examined, that the demand for the structural strengthening of human rights can be legitimately formulated and that the line separating good from evil that ran through the hearts of individuals who killed and tortured in Bucha and Abu Ghraib can truly be discerned.
Image selected by Jr Korpa on Unsplash (public domain).