What role does international law play in how states conduct themselves in times of war? Is international law respected or even an authentic reflection of human morality? Questions like these were discussed in the fourth installment of the Dialogue & Action series, titled War, Law, and Civilians. The talk was hosted by Northeastern University and took place virtually on March 13. Dialogue & Action is a series made to model constructive dialogue and is a collaboration between nine universities including Brandeis. 

The talk opened with a short note by David Quigley, provost and dean of faculties of Northeastern University. Quigley explained briefly the purpose of Dialogue & Action and thanked viewers and panelists alike for their seriousness in engaging with the material. The talk was moderated by Dr. Devin Pendas, a professor of history at Boston College specializing in modern Europe. The two panelists were University of Massachusetts Amherst Professor of Political Science Dr. Charli Carpenter and Dr. Zinaida Miller, a professor of law and international affairs at Northeastern University. 

Pendas then went on to explain the framework of the dialogue. Each panelist gave an introductory remark, followed by questions and dialogue back and forth.

Carpenter opened her remarks by asking an essential question: does international law even matter? According to Carpenter, the answer is “yes.” She said that data shows that international laws matter a lot, and furthermore, it is essential for citizens to understand national law. According to Carpenter, if citizens understand international law, they are empowered to identify when the laws are being violated and to add pressure on their own side to abide by international law when necessary. She explained that international law on war is divided into two categories: laws on starting war and laws on conducting war. Protecting citizens falls under the category of conducting war rather than starting it, which introduces a specific set of nuances. 

As a part of her opening, Carpenter cited Common Article 3 of the Geneva Convention. Common Article 3 describes which violations count as war crimes. In Carpenter’s words, “It’s about seeing the humanity in your enemy, even when it’s hard.” Carpenter points out that the rules outlined have no exceptions and apply to each side unilaterally. In her words, “Context is irrelevant when it comes to atrocity … Everybody who commits an atrocity believes they are justified.” Ending her opening statement, she asked: “What can civilians do in discussion?” 

Following Carpenter, Miller gave her opening statement explaining that her own work focuses on what happens after atrocities rather than during them. Miller’s role as a Professor of Law prompts her to think about conflict in terms of the law. Thinking about what happens after atrocities led Miller to ask a different question: what about civilians before war? “Technically, we are all civilians before war,” she explained. 

According to Miller, all of us carry human rights for which the state is responsible. Conflict is a “special moment” in which combatants exercise a “privilege” to kill, leading us to make distinctions between those who are and are not combatants. Miller brought forth four distinct ideas regarding the role of law in war. First, that humanitarian international law has become very interwoven in decision-making in war, including how and whom to target. Second, the practice of attempting to influence war via legal metrics by non-government organizations has become prevalent. Third, legality in general has become more well-known and widespread as a form of knowledge, leading to the popularity of “advocacy life.” Fourth, legal vocabulary is often used to analyze what happened during a war and is a large part of the process of how we “pick up the pieces” after an atrocity. 

Responding to the two panelist’s opening remarks, Pendas made a couple of comments about the nature of war. According to Pendas, “The point of war is to kill people … War represents the inversion of the moral universe we like to think we inhabit.” He pointed out that while international law is meant to limit civilian casualties, the very act of identifying groups who cannot not be harmed is also the act of identifying those who can be harmed. “Every prohibition is simultaneously an authorization,” as he put it. He also explained that legal vocabulary is used differently in legal, moral, and political situations. For example, genocide is defined as being specific to a particular nation or ethnic group, but that is rarely how the word is used in everyday conversation. According to Pendas, in promoting civil dialogue, it is essential for each speaker to define their terms and to be clear on which “register” they are using. 

Pendas then asked Carpenter: “What is the relationship between politics and law?” Carpenter answered, explaining that in her view, politics is not only about efficacy but morality and justice as well. Law, the text behind these politics, can be used both to promote morality and justice as well as prevent it. If civilians are not informed about international law, it is easy for conflicting actors to “bend” the law in their favor. In other words, they can make it seem like their state’s violations of the law are permissible. Carpenter articulated that our challenge as observers is to understand the law well enough to see through these actions, just as a judge would at an international tribunal. 

Pendas then turned to Miller. He asked her: “What does law do during a war, and what is the point of accountability after the war?” 

Miller answered by explaining that the law, by nature, is a reflection of a series of previous political determinations. “What is lawful but incredibly problematic, what is unlawful, and what is criminal are three different categories,” asserted Miller. Responding to Pendas’s question on accountability, Miller acknowledged some popular methods of post-war accountability such as trials, reparations, etc. She also questioned whether it is possible to surmount the fundamental problem of criminal law in taking this accountability, which she cites as criminal law’s narrow lens. According to Miller, while criminal law is able to account for specific scenarios, it ignores a more big-picture issue of justice that would actually help to avoid fostering more violence over time. 

Before asking another question to Carpenter, Pendas took a moment to dive into two theories on why trials are popular in post-war accountability. He debunked the theory that trials deter unjust behavior during wars, reasoning, “If you don’t win, you don’t go to prison.” He was also skeptical about a second popular theory that trials are a way to teach history lessons. Pendas’s next question to Carpenter was put somewhat colloquially: “A cynic would say ‘Who cares? States are gonna state.’ How do you respond to that?”   

Carpenter responded to the question by reiterating that data supports the effectiveness of international law and argued that specific perpetrators need to be punished rather than whole societies. She continued to argue in favor of international law, stating that the laws of war disrupt “black and white thinking” and “allows moderates on both sides to insist that certain kinds of violence not be carried in their name.” Miller supported this response, adding that law is both “a philology for power and a vocabulary for the subordinate.” 

The talk concluded with a couple of questions from the audience. The first question asked, “what role does Hamas play in these killings (referring to civilian bombings in the Gaza Strip) when they have strategically placed themselves close to civilians?” Pendas began to answer by explaining that while the geography of Gaza makes it difficult to attack without large amounts of civilian casualties, Israel is not doing all it can to implement more precision into their targeting. 

Miller focused on bombings of hospitals because the act of bombing a hospital turns a civilian target into a military target. According to Miller, for a hospital to lose legal protection is enormously difficult. Carpenter answered the question by encouraging everyone to read Article 51 of the 1977 Geneva Convention, which makes it clear that using human shields is a war crime. 

Carpenter added that Hamas’ illegal use of human shielding does not excuse Israel’s actions. According to her, any aerial weapon can be considered indiscriminate. She put forth that Israel ignores the option of evacuating citizens into its own protection, a solution that would be in accordance with international law. 

The talk ended with two more audience questions. The first, “How do international human rights become customary laws rather than only applying to their signatories,” prompted Miller to explain that some international laws come out of the treaty, and some simply become customary. The second asked, “Why aren’t war crimes crimes anymore? What kind of radar have they been flying under?” Pendas and Carpenter explained that response to war crimes is influenced by cultural norms as well and that response to war crimes can be more symbolic than pragmatic.