This is a guest post by Helen M. Kinsella, Associate Professor of Political Science at the University of Wisconsin, as a part of our series on the International Origins of Social and Political Thought. A reply will be posted soon!
“Does it not seem excessive to authorize the use of infernal machines which seem to fall from the sky? I know well that when one is obliged to wage war one must wage it as energetically as possible, but this does not mean all means are permissible.” (Representative from Portugal, 1899 Hague Convention)
“A historically meaningful imperialism is not only essentially military and maritime panoply, not only economic and financial prosperity, but also the ability to determine in and of itself the content of political and legal concepts.” (Carl Schmitt, The Nomos of the Earth, 19)
In my essay, I broadly set forth three things: 1) that the laws of war can be usefully analyzed as an archive of the relations of history and theory, with especial regard to what Ann Stoler calls the “rubrics of rule” generated in and by imperial contexts; 2) that paying attention to attempts to define and regulate particular categories and concepts of law illuminates not only the indeterminacy and ambiguity of the law, but also brings to the fore the shifting notions of power and authority to define the law itself and; 3) that this exercise offers us resources otherwise overlooked or ignored by which to both apprehend and judge our present moment.
The motivation for the essay was my dissatisfaction with the treatment of the laws of war and drone warfare which, to my mind, too quickly accepted that the law of war only reified violence insofar as it “privileges, channels, structures,
legitimates, and facilitates acts of war.” Yet, this stance, albeit one with which I am also highly sympathetic, paradoxically reifies the law as always already determined or preordained in form and outcome. But, as Nietzsche reminds us only “something which has no history” can be so cleanly and ably defined, while the very citability or iterability of the law suggests it can never be regulated or systematized in advance. Therefore, the very mutability and repeated deployment of the law offers precisely the possibility that the laws of war may indeed be used in unexpected and unpredictable ways and not always in the service of a violent imperialism.
In my essay, I turned to one of the fundamental dictates of international humanitarian law, or the laws of war; namely, the prohibition against superfluous injury and unnecessary suffering to explore what might the law have to offer regarding our current predicament. Accepted as both customary and positive law, this prohibition is codified in the 1977 Protocol Additional I to the Geneva Conventions of 12 August 1949, and girds the regulation and moderation of war and limits the use of certain means and methods of warfare. One way of understanding it is as a prohibition on the use of force in a way “that is more than enough.” Yet, as many have discussed, the exact or precise meanings of superfluous injury and unnecessary suffering—much less what is more than enough— are “the most unclear and controversial rules of warfare.”
The lack of consensus over the precise meaning of these terms and a desire to more fully define their content took on especial importance during the four years (1974-1977) of Diplomatic Conferences on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict which led to the 1977 Protocol Additional I and II. These conferences took place in the context of widespread civil wars of national liberation and decolonization and were informed by a robust transnational network of national liberation leaders and movements which, in turn, were linked to the non-aligned movement whose origins lay in the Bandung Conference of 1955. Indeed, out of the 155 states present for the conference, approximately forty had only recently achieved independence, including those like Mozambique which gained independence during the Diplomatic Conferences leading one of its delegates to proudly observe: “Yesterday, we were freedom fighters; today, we are the representatives of a sovereign State.”
Deeply marked by the politics of the time and by the increasing opprobrium directed towards ‘“ruthless and blatant colonialist and racialist repression,” representatives from national liberation movements and newly independent states seized on these concepts as means for capturing the wholescale devastation of imperial wars and to hold imperial states accountable. For the first time in the development of the laws of war, colonized peoples who had previously been only subject to the laws of war became their authors and interpreters, and utilized their expertise grounded in their recent experiences to argue for particular interpretations of the laws. Delegates from newly decolonized states, most often led by the Democratic Republic of Vietnam, insisted on the “atrocious reality” of what they had experienced as balancing, or even contradicting, the work of “certain experts,” who wished to pontificate upon the injuries of war.
Supported by the ICRC and some Nordic countries, representatives of newly independent states and national liberation movements insisted upon broadening the concepts of superfluous injury and unnecessary suffering to include not only physical harm and injury, but also psychological harm, and, significantly, harm to means and ways of life. Thus, while the majority of delegates first attempted to limit the scope of superfluous injury and unnecessary suffering to empirical, quantifiable assessments, national liberation movements and newly independent states refused to accept such an interpretation of harm caused by imperial wars and demanded a more robust accounting. They demanded that the concepts of suffering and injury be expanded and deepened to consider the complexity and nuances encompassing an entire way of life—captured in terms such as “genocide, biocide, and ecocide.”
As a turning point in the development of the laws of war, and in the codification of the prohibition against superfluous injury and unnecessary suffering, these debates illuminated a far more complex and resonant attempt to identify the violence of war beyond degrees of wounding and counting of the dead. It was also a moment in which the victims of colonial, racist, imperialist wars reclaimed the laws of war in defense of their own wars for liberation and to denounce those who fought against them.
To retrieve the debate over superfluous suffering and unnecessary injury, and the politics of that debate, is to excavate a resource for thinking about contemporary wars, especially in terms of those ‘living under the drones’ who ask us, against all insistence that the drones are a legal means of war, to recognize the full dimension of injury and suffering incurred. It is also to remind ourselves that the laws of war are not, and were not, fully determined in form or outcome which, in turn, may provide some small hope in these dark times.