THE FOG OF PROTECTION: CONTESTED MEANINGS AND DELIBERATE CIVILIAN DEATHS DURING ARMED CONFLICT By Betcy Jose-Thota B.A., University of Texas at Austin, 1997 J.D., University of Houston Law Center, 2000 Submitted to the Faculty of The Graduate School of Public and International Affairs in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Pittsburgh 2011 UNIVERSITY OF PITTSBURGH Graduate School of Public and International Affairs This dissertation was presented By Betcy Jose- Thota It was defended on August 27, 2010 And approved by Dr. R. Charli Carpenter, Associate Professor, University of Massachusetts-Amherst Dr. Paul Nelson, Associate Professor, GSPIA, University of Pittsburgh Professor Jordan Paust, Professor, University of Houston Law Center, University of Houston Dr. Taylor Seybolt, Assistant Professor, GSPIA, University of Pittsburgh Dissertation Director: Dr. Louis Picard, Professor, GSPIA, University of Pittsburgh ii Copyright by Betcy Jose-Thota 2011 iii ABSTRACT Why do belligerents intentionally kill legally protected civilians during armed conflict? Such acts not only violate the human security of people protected by the civilian immunity norm but may also be war crimes. The violation of this pillar of international humanitarian law (IHL), the body of law tasked with regulating armed conflict, has been the subject of significant research and policy deliberation. Many of the useful analyses produced by these efforts operate from common assumptions. One is that a monolithic understanding of the distinction principle, the obligation for belligerents to distinguish between permissible and impermissible targets and a core component of the civilian immunity norm, exists among those who monitor and disseminate IHL. Another assumption among scholars and practitioners concerned with deliberate civilian targeting is that a shared understanding of who is protected during armed conflict exists between those who monitor IHL and those who must abide by it. Through the analysis of interviews conducted with IHL experts and belligerents who fought in a variety of conflicts on the African continent, this study reveals that neither of these assumptions is warranted. It finds that not only is there a lack of consensus among belligerents as to whom they can permissibly target during armed conflict, but that there is still debate among IHL experts as to whom the law protects. Furthermore, this study finds that shared understandings of who is protected during armed conflict do not exist between experts and belligerents, so that belligerents claiming to abide by their particular interpretation of the distinction principle ostensibly target civilians deemed protected by IHL experts. Thus this study offers new avenues for understanding violations of the civilian immunity norm and possibly reducing their occurrence. iv TABLE OF CONTENTS Chapter 1: Introduction 1 Chapter 2: Norms and Civilian Deaths 14 Explaining Norm Compliance- Logic of Consequences and Logic of Appropriateness 15 Intersubjectivity 19 Regime Components 20 Violations of the Civilian Immunity Norm 22 Civilians in Armed Conflict 22 Utilitarian Reasons for Violations of the Civilian Immunity Norm 23 Differing Methods of Interpretation of Direct Participation 28 Explaining Norm Violations 34 Unintentional Violations 34 Intentional Violations and Logic of Consequences 37 Norm Violations and Logic of Appropriateness 42 Civilian Contestation: A Good Case Study 45 Preliminary Evidence 46 Conclusion 47 Chapter 3: Methodology 49 Interviews 50 Respondent Selection 50 Interview Protocols 54 v Challenges in Data Collection 56 Interview Data Analysis 59 Coding 59 Analysis of Coded Data 61 Historical Analysis of the Distinction Principle 64 Chapter 4: Ambiguities in the Distinction Principle 66 Prior to IHL Codification The Utility of an Historical Examination of a Norm in Understanding its Violation 68 A History of the Distinction Principle in European Jurisprudence 69 A History of the Distinction Principle in Islamic Jurisprudence 77 A History of the Distinction Principle in an African Context 82 Conclusion 85 Chapter 5: Ambiguities in the Distinction Principle During IHL Codification by the International Community 87 The Lieber Code 88 1864 and 1906 Geneva Conventions, St. Petersburg Declaration and 1907 Hague Convention 90 1949 Geneva Conventions 96 1977 Additional Protocols to the Geneva Conventions 101 Continued Ambiguity in the Distinction Principle 107 Conclusion 112 Chapter 6: IHL Expert and Former Belligerent Views on Permissible Civilian Targets 113 Does Intersubjectivity Exist among IHL Experts on the vi Distinction Principle and Permissible Civilian Targets? 113 Distinction Principle, DPH, and Permissible Targets 113 Intersubjectivity on Distinction Principle and DPH 115 Does Intersubjectivity Exist among Former Belligerents on the Distinction Principle and Permissible Civilian Targets? 118 Distinction Principle 119 Permissible Civilian Targets: Actor-based Distinctions 120 Age- Children 120 Age-Elders 121 Gender 123 Physical characteristics 126 Permissible Civilian Target: Act-based Distinctions 126 Opponent Support via Refusal to Assist 126 Opponent Support via not Obeying Evacuation Orders 128 Threatening Behavior 128 Intersubjectivity on Distinction Methods among Former Belligerents? 130 Nature of Intersubjectivity on Permissible Targets 131 Contestation in Former Belligerent Narratives 132 Distinction Based on Support 133 Distinction Based on Age 135 Distinction Based on Gender 138 Deliberate Civilian Targeting not Explained by Norm Contestation 140 Conclusion 145 vii Chapter 7: Conclusion 147 Reasons for Contestation 148 Ambiguity in IHL 148 Problematic Diffusion 149 Lack of Diffusion 151 Local Contexts 155 Hints of Norm Contestation beyond this Study 157 Theoretical and Policy Implications 159 Conclusion 163 Appendix I: List of Abbreviations 166 Appendix II: List of Important Legal and Social Science Terms 167 Appendix III: Codebook 169 Appendix IV: Interview Protocols 171 Appendix V: Data Summary- Norm Frameworks 173 Appendix VI: Kappa Scores 175 Works Cited 178 viii LIST OF FIGURES Figure 3.1 One-sided actors by region, 1989-2007 50 Figure 7.1 Annual One Sided Fatalities by Actor, 1989-2004 159 ix PREFACE AND ACKNOWLEDGEMENTS My interest in the plight of civilians in armed conflict emanated from my efforts to understand the 1994 Rwandan genocide as it unfolded. While researching this and other genocides, I quickly discovered the widespread nature of atrocities committed against civilians, particularly during armed conflict. I also noticed that many of the actors who were accused of violating legally mandated civilian protections claimed to embrace those very protections. It seemed to me a puzzling paradox. This dissertation aims to shed some light on this puzzle. There were many people, institutions and organizations who helped me along my search for answers. I count myself lucky to have had two different dissertation chairs and an incredible committee. I began this project with R. Charli Carpenter. Her generosity of time and expertise, her patience in answering my many questions, and her efforts to push me harder than I sometimes pushed myself greatly enhanced the quality of this project. Louis Picard took over the reins and offered me wisdom, calmness and perspective. Jordan Paust assisted me when I stumbled in trying to understand the nuances of international humanitarian law. Taylor Seybolt helped me sharpen my arguments and inspired new directions for research. Paul Nelson consistently supported my efforts to be both a rigorous and ethical researcher. I am also grateful to those outside of my committee who read drafts of my dissertation and/or provided astute commentary. These include Alexander Downes, Janne Kleffner, Cian O’Driscoll, Stephanie Carvin, Christianna Nichols Leahy, Daryl Bockett, Nivien Saleh, Ravi Srinivas, Hans Stockton, Sigrid Streit, Wendy Lampart and Kristina Thomas. I am particularly grateful to Lisa Hultman who organized seminars for me to talk about this research at Uppsala University and the Swedish National Defense College. The participants at both seminars asked tough and insightful questions which ultimately enhanced my analysis. I also want to thank x Peter Wallensteen for generously providing me access to office space and other needed resources while I was visiting the Peace and Conflict Department at Uppsala University. I would also like to convey my gratitude to the respondents who participated in this study. I am deeply appreciative of their willingness to set aside time in order to help me gather data, even when it may have been emotionally draining. I offer thanks to the refugees, the delegates of the International Committee for the Red Cross, and the various legal experts with whom I spoke. I am also thankful to the United Nations High Commissioner for Refugees in Botswana and the University of Botswana for their assistance with the logistical planning for one set of interviews and their welcoming hospitality. I am especially thankful to Sharif Olani, Vasco K. Simamezi, Changu Moyo, the Seleke family, Victoria Palm, and Shadreck Balisi. The National Science Foundation funded my field research trips. Without its grant, this research project would not be possible. I am thankful to the NSF for providing me with these opportunities. The Graduate School of Public and International Affairs at the University of Pittsburgh offered me a great deal of support. The Dean’s Fellowship enabled