The idea of the civilian in international law
Abstract
This thesis is an account of change in the international legal order, told through the history of the civilian. It proposes a new approach to the civilian, to international humanitarian law and to the understanding of legal change. The civilian, today, is a protected subject and a central concern of international humanitarian law. The legal literature tends to assume that civilians have always existed as victims of the depredations of warfare and as beneficiaries of timeless principles that demand their protection. This thesis sets out to replace the image of an ahistorical civilian with an understanding of the civilian as a specifically modern concept. It does so by investigating the changing perception of the civilian through a series of episodes in the legal representation of civilians. It begins in the First World War, when the word 'civilian' first appeared as a name for non-combatants and concludes at the end of the twentieth century, with the civilian as a dominant value in international humanitarian law. International humanitarian law itself emerges as an historical object deserving investigation over the course of this history. Where legal histories tend to obscure the origins of international humanitarian law in a continuum of legal codes, this thesis emphasises the adoption of the term 'international humanitarian law' in the 1970s and its consolidation in the 1990s. Moreover, to better understand the history of the civilian, the thesis attempts to examine the nature and operations of international humanitarian law. In place of the traditional doubts and disputes about the nature of international humanitarian law, this thesis argues that international humanitarian law is best understood as a discipline, a knowledge system that represents the world and organises itself in terms of its own rationality. The history of the civilian and the interrogation of international humanitarian law illuminate the possibilities and limitations of change within such a discipline. Change in law is usually understood in instrumental terms, but this thesis argues that legal change should be seen as a more complex process, which takes place in a variety of overlapping spheres, both legal and extra-legal, and at varying degrees of abstraction. Events and developments outside the discipline become material for a general discursive change, which then informs and limits what international lawyers can say about international humanitarian law. International lawyers, unable to make traditional claims about the law in the new discursive environment, find themselves compelled to translate the new values, sentiments and assumptions into the language and conventions of international humanitarian law. The extent to which they are successful in this process reveals the disciplinary conventions that constrain and those that allow creativity. It shows the power of legal tradition, while also demonstrating how tradition can be bypassed and forgotten. The result is an account of a comprehensive legal change that has transformed the understanding of the civilian, the provisions of international humanitarian law and the nature of international humanitarian law itself.