The bedrock of international humanitarian law is arguably the principle of distinction, which highlights the importance of distinguishing between combatants and non-combatants during war. Accordingly, when violence in conflict zones becomes the object of public and legal scrutiny, we often witness a legal-visual investigation about the degree of distinction adopted by the actors in the battlefield. Given the contemporary landscape of armed conflict and the increasing rate of civilian deaths, analyzing the way distinction is produced, its epistemic conditions of possibility, as well as its political and ethical objectives is both necessary and urgent. Using the US drone wars in Pakistan and Yemen as a case study, the paper focuses on the way in which the principle of distinction has become a productive force that not only distinguishes among people within battlespaces, but also helps produce legal figures such as "human shields" and "enemies killed in action." More specifically, it interrogates two different aspects informing the relationship among distinction, visibility, and the ethics of violence to show that the principle of distinction has been mobilized in Pakistan and Yemen to legitimize the killing of civilians during war, rather than as a means of protecting them. First, it uses drone warfare in the Middle East to show how new technologies help expand that which is observable. Second, it describes how the legal principle of distinction, which originated in the humanist tradition, currently distinguishes people by detecting so-called anomalies in the relations among multiple data points and translates them into "patterns of behavior." Not unlike the reconfiguring of the human body through its reconceptualization as a molecular entity, contemporary technologies of distinction use a post humanist gaze to re-conceptualize the human body as part of a digitized disposition matrix that is linked to specific legal figures. Taking into account the increasing "civilianization of armed conflicts" in the Middle East, it is vital to make sense of the apparatus of distinction not only for understanding how militaries fight in civilian spaces, but also for understanding precisely how international law helps produce the ethics of violence.

The war in Yemen has devastated the country’s infrastructure, claimed over 10,000 lives (by conservative estimates as of January 2017) and displaced millions. Hundreds of thousands of children are at risk of malnutrition and starvation and the conflict has triggered one of the worst humanitarian crises in the region. One part of this toll may be attributed to the American drone campaign against Al Qaeda in the Arabian Peninsula. But by far the larger measure has been caused by the Saudi military campaign against the Houthis, which has been riddled with strikes against civilian targets. In this paper, I will explore how the U.S. has sought to shield itself from accountability for Saudi violations of the laws of war even as it has supported the Saudi-led coalition bombing of Yemen. I develop a framework to assess, based on ICRC guidance, the degree to which the provision of refueling, intelligence and logistics support to the coalition generates liability for war crimes. I will also analyze the danger of the precedent set by the Obama administration to shield its actions from scrutiny and accountability. A strategy of stealth engagement avoids both American casualties and any public accountability, but results in the same reckless destruction and destabilization as other U.S. counterterrorism operations. Holding the United States accountable for war crimes in Yemen is essential to the integrity of the laws of armed conflict and may also be one of the few remaining levers of resistance to an imperial presidency deploying unconstrained force globally under cover of counter-terrorism.

In the course of its three massive onslaughts against the besieged Gaza Strip between 2008-14, Israel has worked to reshape the customary law of proportionality in irregular combat. Article 51(5)(b) of the First Additional Protocol prohibits an attack “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Israel has attempted to re-shape the scope of proportionality in the conduct of hostilities in ways that expand the tolerable level of harm caused in at least three ways. One, it pushed back on the meaning of military advantage so that it does not strictly refer to the advantage during a single operation but instead what an attack would mean to the overall military advantage. It did so, by adopting a forward-looking military advantage. Two, it adopted a radical definition of force protection, the military value of protecting a belligerent’s armed forces. Israel claimed that its soldiers’ lives to be more valuable than those of enemy civilians, thus shifting the burden of warfare to enemy civilians and tolerating greater loss of life under a proportionality assessment. Three, it helped redefine when, and for how long, a civilian becomes a direct participant in hostilities (DPH) and thus a legitimate target. Whereas, the traditional definition made civilians a legitimate target “for such time as they take up arms,” Israel’s jurisprudence and operational practice expanded that temporal scope to legitimate killing civilians even when they were not engaged in combat and posed no risk. In doing so, Israel has legally justified launching attacks against “targets” in their homes as they slept surrounded by civilian members of their family and other civilian inhabitants of their residential buildings. To examine these shifts, I will be looking at Israel’s operational practice as documented by testimony from Israeli soldiers as well as several fact-finding missions deployed to investigate the conduct of hostilities. In addition, I will be taking a close look at Israel’s interventions in shaping opinion juris as captured by its participation in the International Committee for the Red Cross’s Interpretive Guidance on DPH, Israeli jurisprudence, as well as individual scholarly contributions that have had a tremendous impact on Israel’s military practice.

The US “war on terror” continues under a third administration, with no end in sight. From official authorization of, first, torture, then targeted killing (mainly by means of drone warfare), the policies and practices authorized for the military and the CIA have been deemed “legal” by successive administrations, despite that they contravene the norms and rules of international humanitarian law (IHL). In this paper, I will address three sets of issues: 1) how US officials have sought to rationalize the forms, targets, and consequences of violence that constitute this transnational counterterrorism war by examining policy directives and government pleadings in cases pertaining to torture and civilian casualties caused by drone strikes; 2) how official assertions of the legality of the counterterrorism war paradigm and the secrecy shrouding decision-making affect and impede accountability for American perpetrators of war crimes and other gross violations; and 3) how the US counterterrorism war paradigm, coupled with unaccountability for violations, has influenced other governments engaged in wars in the contemporary Middle East. Through this triangulated analysis, I will explain the “gap” between what IHL requires (i.e., the rules of proportionality, distinction, necessity, and human treatment) and what the United States does, and then consider how the global power of the United States affects interpretations of what is legal in war. The counterterrorism war paradigm, which is constructed and defended as an alternative to the IHL paradigm, poses a serious threat to the international consensus on the basics of humanitarianism.