A Short History of International Humanitarian Law

Posted on June 14, 2024 by Luke Ford

What makes for an expert in human rights? Someone who other human rights experts accept as an expert. To get in the game, you first have to speak the code and nod to Human Rights Watch and Amnesty International and other exciting utopian schemers making grand pronouncements about proportionality.

International humanitarian law is a 1990s construct created by utopians who needed an exciting cause that need not make any difference in the real world. The International Criminal Court, an impotent institution, is a great place for these dreamers to strut their stuff. Playing dress-up doesn’t have to end in childhood.

Professor Amanda Alexander writes in 2015:

This article questions the conventional histories of international humanitarian law, which view international humanitarian law as the heir to a long continuum of codes of warfare. It demonstrates instead that the term international humanitarian law first appeared in the 1970s, as the product of work done by various actors pursuing different ends. The new idea of an international humanitarian law was codified in the 1977 Additional Protocols to the Geneva Conventions. Nevertheless, many of the provisions of the Protocols remained vague and contested, and their status, together with the humanitarian vision of the law they outlined, was uncertain for some time. It was only at the end of the 20th century that international lawyers, following the lead of human rights organizations, declared Additional Protocol I to be authoritative and the law of war to be truly humanitarian. As such, this article concludes that international humanitarian law is not simply an ahistorical code, managed by states and promoted by the International Committee of the Red Cross. Rather, it is a relatively new and historically contingent field that has been created, shaped and dramatically reinterpreted by a variety of actors, both traditional and unconventional.

…. It was only at the very end of the 20th century that practitioners of international humanitarian law, following the example set by human rights organizations, suddenly accepted the authority of Additional Protocol I and, with it, a humanitarian vision of the ius in bello. This shift can be seen in both the newly confident use of the term ‘international humanitarian law’ to describe all of the laws of war and a renovated understanding of the content of this law – an understanding that is exemplified in the changing interpretation of the principle of proportionality.

…Prior to the 1960s, the term ‘international humanitarian law’ was not used to describe a field of law, and even when the term started to be used in the 1960s it still denoted quite a different understanding of the law to its current incarnation.

…the 1974 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, but its actual rules were contested throughout the Conference and continued to be questioned even after the Conference concluded. …the Diplomatic Conference was an unwieldy gathering, consisting of around 700 delegates.110 These delegates separated into conflicting factions, which expressed different views about what international humanitarian law was and should be. The background of the Yom Kippur War, the Vietnam War and the decolonization struggles shaped these views and lent them urgency. The Third World and, nominally, the Eastern Bloc thought international humanitarian law should protect guerrilla fighters and obstruct imperialist forces. The ICRC and most Western states hoped to recognize guerrillas and provide them
with a modicum of protection in order to encourage guerrillas to follow the laws of war, while still maintaining a clear distinction between combatant and civilian. Some states argued that the principle of discrimination should prohibit the use of certain modern weapons;113 others insisted that it could not do so. Many delegations, especially those from the Eastern Bloc and Third World, considered that international humanitarian law should not contain a principle of proportionality, claiming that it gave military commanders an unlimited right to decide to launch an attack if they thought there would be military advantage. In response, Australia, the United Kingdom and the USA argued that the principle of proportionality should be retained. States, they pointed out, were not going to abandon bombardment – all the law could reasonably hope to do was to govern it.

…Guerrillas, who had previously been denied protection, could now qualify as combatants.123 Civilians were defined for the first time in Article 50 and given a raft of
unprecedented protection. In addition to the new codification of the principles of proportionality and discrimination, Protocol I demanded that precautions be taken to protect civilians, banned reprisals against civilians and civilian objects and prohibited the starvation of civilians, which had previously been allowed under the laws of war.

…Many states refused to sign or, having signed, did not ratify Additional Protocol I. The list included India, Indonesia, Iran, Iraq, Israel, Malaysia, Morocco, Pakistan, the Philippines, Singapore, Sri Lanka, Sudan, Thailand, the USA, and the Soviet Union.131 Despite the optimism of the US delegation,132 President Ronald Reagan announced in 1987 that the USA would not ratify Additional Protocol I, describing it as ‘fundamentally and irreconcilably flawed’.

…described the Protocol as confusing, impracticable, inconsistent with the evolution of the laws of war and detrimental to the protection of civilians.139 The Protocol’s dual humanitarian aims of protecting civilians and non-traditional combatants, Parks claimed, were manifested in such an impractical way that it was unworkable and, ultimately, regressive. By blurring the distinction between civilian and combatant, the Protocol endangered civilians. It was also dangerous, Parks argued, because it moved the traditional onus for the protection of civilians from the defender, who should have control over civilians, to the attacker, who would not…

[Re the 1991 Gulf War]… It amounted to nothing more than a prohibition on the direct or negligent targeting of civilians.162 The US campaign, commentators agreed, satisfied this low threshold. Even the most distressing events, such as the destruction of the electricity system that resulted in hundreds of thousands of civilian deaths, were legal.

…Law, international lawyers felt in the early 1990s, could not prevent the horrors of war.166 All it really did was to legalize them…

The attention of the international legal community was focused instead on the ethnic conflicts in Yugoslavia and Rwanda and the attempts of the newly functional UN Security Council to respond to these events – authorizing peacekeeping operations aimed at helping beleaguered civilians, setting up ad hoc tribunals for Rwanda and Yugoslavia and beginning work towards an International Criminal Court.

These conflicts and the new tribunals changed the focus, the constitution and the sensibility of international legal scholarship. Suddenly, there was an institutional
environment established to enforce international humanitarian law. International humanitarian law was no longer just a ‘pseudo code’. Instead, it became seen as a real option for study, research and work – an exciting and tangible pursuit. A new cohort of academics entered international law and started producing a large body of literature. This literature was quite different to the sceptical and pessimist work of the early 1990s, which was dominated by military lawyers and a military perspective. The literature that emerged over the 1990s was developed by a larger group of academics and practitioners, often drawn to the field by humanitarian concerns. Their work was concerned with the victims of warfare and the crimes committed against them – crimes against humanity, crimes of sexual violence and genocide. The victims of landmines were also a high profile issue during these years.170 International lawyers, discussing these issues, employed a humanitarian vocabulary, which was appropriate in these contexts, and they were open to human rights values in a way that their predecessors were not…

… Lawyers, almost without exception, would acknowledge that France, Turkey and the USA were not parties to the Protocol, but then they would simply state that the ‘provisions of the Protocol are universally accepted as customary international law and are binding authorities on all nations’. How did lawyers come to such a straightforward conclusion, which was so different to the debates that had taken place less than a decade earlier? A glance at their footnotes will reveal, almost without exception, a reference to HRW [Human Rights Watch] or Amnesty International.

Lawyers interpreted the principle of discrimination much more strictly; they narrowed the class of acceptable targets and permissible weaponry. As for proportionality, it was no longer considered a permissive principle. The NGO reports interpreted it strictly – more strictly even than the vague, pragmatic words of Article 51 would necessarily require. They stated that the principle of proportionality placed a duty on combatants to choose a means of attack that avoided or minimized damage to civilians. They also insisted that no military benefit could justify high amounts of civilian casualties. For lawyers adopting the NGOs’ approach, this meant that much of the campaign was judged to fail the test of proportionality. Aerial bombardment was disproportionate, any weaponry besides precision-guided munitions was disproportionate187 and the destruction of bridges or other infrastructure used by civilians was disproportionate. To all intents and purposes, any attack that did not put the protection of civilians ahead of military objectives was disproportionate.

…The fact that HRW’s interpretation of international humanitarian law was considered authoritative at the end of the 1990s, but not at the beginning of the decade, was largely due to the willingness of international lawyers and academics to accept and repeat their pronouncements. It has long been noted that academics have an unusually important role in the determination of international law…

…authority, the ability to discuss international humanitarian law and to be heard, can depend less on who speaks than on how they speak about the law. A sufficient grasp of legal language and conventions can allow a practitioner of international humanitarian law to intimate expertise and speak authoritatively about the field.

…A scientist, Thomas Kuhn wrote, could not work outside a paradigm and do science. It seems that an international lawyer must, similarly, conform to a paradigm for their work to be considered legitimate

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Discourse, Reality, and the Culture of Combat

Posted on June 14, 2024 by Luke Ford

Historian John A. Lynn wrote in 2005:

Historians need to differentiate between the reality of war and die way in which a culture conceives of war: between the concrete and the conceptual. At die conceptual pole, the term ‘discourse’ signifies the complex of assumptions, perceptions, expectations, and values regarding conflict, violence, and armed struggle. Discourse does not necessarily assume an ideal of war, as it often encompasses elements that are far from ideal. As demonstrated by the highly conventional style of warfare practised by the classical Greeks, a discourse can exert great influence in shaping reality. Sometimes, however, the discourse does not match die contemporary weaponry and logistics, and must adjust. During die First World War, romanticized conceptions of warfare perished in the trenches of 1915. A feedback loop circulates between discourse and reality, even though the two are never identical.

A particular society and culture can produce different discourses, defined by class, gender, or profession. Thus, during the Middle Ages, the aristocracy idealized and lauded chivalric violence, the peasantry feared it because they became its unwilling victims, and the Church condemned it as sin, except on crusade. Since the rise of general staffs, military professionals have systematized their discourses in theory and doctrine. This has never been clearer than in the masterful, but culturally specific, work of Karl von Clausewitz, which has influenced military conceptions of warfare for over one hundred and sixty years. The tensions between conflicting discourses and the discord between the dominant discourse and reality make for some of the most interesting questions to be answered by military history.

If a society produces a discourse on violence, central to its value system but unable to be matched with the reality of war, it may devise a perfected reality that conforms with its ideal discourse, if only for the élites.

…When one side interprets the enemy’s actions as improper conduct of war, it may exchange its own dominant discourse for an alternative that justifies a reality stripped of constraints. This is most easily done when cultures collide in battle, as they did in the Pacific in the Second World War. Each side came to see the other as uncivilized and to be treated with unbridled brutality.

…The racist views of the Japanese held by US troops only registered at the peripheries of combat: the reluctance to take prisoners, the treatment of those taken, and the abuse of the dead. Racism determined neither US miHtary doctrine nor the US strategy that culminated in the use of the atomic weapons.

…Bodi the chosen case studies and the theory challenge the claim made by Victor Davis Hanson, John Keegan, and Geoffrey Parker that one can trace a definably Western way of war back to classical Greece. Hanson insists that an unbroken 2,500-year tradition based originally on Greek practice explains not only why Western forces have overcome great odds to defeat their adversaries but also their uncanny ability to project power well beyond the shores of Europe and America.

…Claims of continuity in the West become less tenuous as analyses of cultural discourse rather than as statements about the reality of war. Western literature kept alive stories of classical commanders and conquests and preserved some classical studies of warfare, but the memory of the classical past was used selectively, often as metaphor.

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The Genesis of the Civilian

Posted on June 14, 2024 by Luke Ford

Professor Amanda Alexander wrote in 2007:

This paper argues that the concept of the civilian is a specific way of viewing non-combatants that can be traced to the First World War. Before the war, non-combatants were seen by the law and the prevailing culture as citizens. The citizen was potentially and probably aggressive, bound to the fate of his or her state and, therefore, granted only minimal protection by law. The war, however, brought technological changes and a propaganda effort that transformed these citizens into a civilian population. Civilians were essential to the war effort, which meant that they were a target. Yet, at the same time, they were feminized, described as vulnerable and deserving of protection. This cultural shift influenced the way in which the laws of war were understood, leading to the replacement of the traditional categories of law with a military/civilian distinction in the 1923 Hague Draft Rules of Aerial Warfare. In this way the concept of the civilian entered international law.

Civilians today attract the protection of international law and the attention of the world. Among observers of conflict the plight of civilians is arguably the foremost concern. In more theoretical circles, the inviolability of the civilian has become so obvious and crucial that it has been described as the foundation of international order. Yet the very importance of the civilian provokes the questions, what is the source of this concern and what implications does it have for its subject? Some international lawyers presume that it is a timeless principle of international law.2 Others see it as an achievement of the Lieber Code, the Hague Conventions, and/or the Geneva Conventions.3 In this article, however, I argue that the idea of the civilian is a peculiar way of conceptualizing people that evolved during the First World War. When the war began non-combatants were perceived as citizens, who were either voluntarily passive or wilfully dangerous. But after the Germans invaded Belgium Allied propaganda erased the threatening aspect of the non-combatant population and redrew them as helpless victims… Governments and population alike acknowledged the vital role of non-combatants in the modern, industrialized
war machine, while military strategists described them as a key military target. It was this paradoxical reconstruction of non-combatants as both weak and critically important, as both pitiful victims and primary targets, that constituted the new idea of the civilian population.

…The civilian has achieved such ascendancy in international law that it is hard to imagine a code of warfare or a world without civilians. Indeed, it is often written that the civilian has long existed as a protected subject of international law.5 Yet both the term ‘civilian’ and the group it describes are relatively new.

…Citizens of an enemy state are enemies too. But if they are not combatants then they are passive enemies… If, however, placing pressure on the general population can
bring the war to a speedy conclusion then it will be allowed as a necessity of war.

…During the war, in the ‘theatre of operations’, they could expect little relief. Their property could be destroyed and, if they were besieged, they could be killed by bombardment or starvation.22 There was no obligation to allow ‘useless mouths’ to leave a besieged town.23

…As Captain Liddell Hart argued in Paris, or the Future of War, the old strategy of destroying the enemy’s armed forces was misguided and outdated. Rather, the purpose of war was to destroy the enemy’s will to resist – the moral objective. This objective should be pursued in the easiest and most cost-effective way possible. And now the aeroplane
had exposed the easiest target, the Achilles heel of civilization – the civilian.

* Liddell Hart’s expectation that civilians would be the primary target in the next war was generally shared.96 This military consensus also held that it would be useless to try to defend civilians. In the influential Air Warfare, Sherman explains that using aircraft for defence was a misallocation of resources that would ultimately lead to defeat. Anti-aircraft guns, according to Douhet – the accepted authority on air strategy – were also a useless waste of energy and resources.97 In this situation, Douhet asks, ‘How can we defend ourselves against them? To this I have always answered, “by attacking”.’98 The threatened state must send their bombers against the enemy. War would no longer be a battle between soldiers but a contest to see which population would crack first. ‘To put it vulgarly’, as Colonel Fuller wrote, ‘in the next great war [the civilian] is going to be “in the soup”, and what kind of soup will it be? A pretty hot one!’99 Most military writers accepted this development and some actively embraced it.

…Faced with the destructive potential of the aeroplane, states might hesitate to go to war. When they did start a war, it would be sharper and shorter and, therefore, more humane.101 Instead of the appalling slaughter of millions of soldiers as in the last war, Fuller suggested that an air campaign could end a war with only a few thousand of the enemy’s men, women, and children killed.102 He also thought that technical developments might allow non-lethal gases to be used in air raids.103 At any rate, both he and Liddell Hart felt that everyone would attempt to limit the destruction in the hope of future friendly relations between the warring states.104

…Yet even if there were greater civilian casualties than they forecast, these writers agreed that it would still be no more immoral than traditional forms of warfare. Killing civilians in an air raid, they argued, was no worse than the cannon-fodder wars of the past, sinking ships, or starving people.105 Moreover, there was no reason why civilians should be immune from war. When a nation went to war the entire population was involved and the solidarity and capacity of the fighting forces depended on the people at home.106 Indeed, as Fuller suggests, the civil population is responsible for its government and must bear the consequences of its decisions…

…This acceptance of civilians as targets was even shared by some international lawyers. The postwar editions of Oppenheim’s International Law suggested that the development of aerial warfare, the idea of the nation-in-arms, and the spread of democracy had threatened any distinction between the armed forces and civilians. Meanwhile Royse argued that there had never been an effective norm that protected non-combatants and that aerial bombardment directed at civilians was legal.108

…It was not until the 1949 Geneva Convention IV that any protection for civilians was codified, and not until the 1977 Additional Protocols that the principle of distinction was ratified.

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Decoding Masculinity (6-11-24)

Posted on June 11, 2024 by Luke Ford

01:00 What is masculine?
14:00 Matter of Opinion: Trump and masculinity, https://www.youtube.com/watch?v=iZ2h3PX43iE
32:00 Politico: Evangelicals Hate Stormy Daniels But Love Trump. Here’s Why., https://www.politico.com/news/magazine/2024/05/07/stormy-daniels-donald-trump-evangelical-appeal-00156488
48:00 Sociologist Samuel L. Perry on White Christian Nationalism
1:23:00 Samuel L. Perry Lecture: “A House Dividing: Why White Christian Nationalism is Everyone’s Problem”
1:29:00 Niche construction, https://en.wikipedia.org/wiki/Niche_construction
1:36:40 Niche Construction | How Humans Influence Our Own Evolution
1:39:30 Niche Construction, https://www.youtube.com/watch?v=kO9gAtTplsE

Full transcript.

PodNotes generated this AI summary: I want to discuss masculinity and its measure: providing for your family. It’s simple—being a man means supporting your wife and kids legally and ethically. If you’re proud of your work, it likely means you’re doing it right.

I’ve learned from personal experience that making money has an uplifting effect on men. After recovering from chronic fatigue syndrome in 1993 with the help of medication, my psychiatrist Daniel Golwyn in Orlando encouraged me to show how much money I could make. Instead, I chased dreams like writing a book and blogging until realizing around 2015 the importance of serious earning.

Making money forces men to engage with the world positively—it demands cooperation, respect for others’ rights, and meeting their needs. This focus pulls men away from selfishness towards service.

Consider this: if you have 100 men where half prioritize religion over earnings while the other half focuses on financial success—I’m more impressed by those who value earning highly. For example, in orthodox Judaism living costs are high; thus prioritizing earning is necessary.

Masculinity also requires male spaces which are increasingly rare due to egalitarian ideals pushing inclusion at all costs. However, distinctions are crucial for civilization—and masculine spaces foster healthiness among men.

In Genesis after Eden’s fall God highlighted our essences—women bear children through pain; men earn bread through sweat.

Lastly regarding Trump—he appeals strongly to certain types of masculinity emphasizing dominance which resonates with many voters despite criticism about performative traits or aggressive posturing as traditional masculinity faces societal scrutiny.

Traditional male roles as family providers are challenged today by economic and social changes, including civil rights movements. Men find it harder to be the sole breadwinner, owning a home and supporting a family. Women adapt well to law-abiding roles in our tech-driven economy.

In right-wing culture, there’s a belief that the left dislikes masculinity. Mainstream religions like Judaism and Christianity no longer reserve rituals for men only, leading to men leaving these faiths. Growing religious groups do offer male-only spaces which appeal to those seeking traditional masculine values.

Figures like Tate, Jordan Peterson, and Joe Rogan claim they’re standing up for men against an anti-masculine worldview. School curriculums don’t cater much to typical male interests like competition or strategy games; instead, they downplay such desires.

There’s also an educational divide where males of European heritage often study out of pure interest rather than grades compared to their Asian counterparts who focus on test outcomes.

Political shifts show young Black and Latino men moving rightward due partly to perceptions of party representation regarding gender issues. Trump’s pre-political celebrity status as a wealthy businessman still influences his political image among evangelicals despite his moral shortcomings because he embodies power and traditional masculinity—a trait admired even if flawed according to some evangelical interpretations of biblical leaders.

The label “evangelical” is becoming more about cultural identity than religious belief among White Americans supportive of Trump—it signifies alignment with conservative Christian values without necessarily involving active religious practice or beliefs.

Finally, this shift towards identifying with Christianity has less theological meaning but more so represents belonging within certain ethnic or national identities in both America and Europe—where being labeled as Christian can equate with not being part of other minority groups.

Political scientists and sociologists measure our party preferences by how much we like our own party versus the opposing one. This measure reveals that white Americans who strongly affirm Christian Nationalism tend to favor Republicans and dislike Democrats, while this effect is not seen in Black Americans.

Chad suggests masculinity involves taking responsibility for others, such as family and community. Political leanings also influence views on individual rights versus group obligations; those on the right emphasize traditional life obligations more than those on the left.

Research shows that when accounting for Christian Nationalism, religious commitment predicts less xenophobia and support for border walls among Christians. Conversely, stronger affirmation of Christian Nationalism correlates with xenophobic attitudes and opposition to gun control measures.

Christian Nationalist rhetoric often evokes a sense of heritage and identity tied to whiteness. It can mask feelings of marginalization among white males who may feel sidelined culturally or socially, leading some towards movements advocating violence or authoritarian control.

Elites benefit from a divided America because it allows them to maintain power through strategic alliances with marginalized groups. Populist movements threaten elite power by uniting citizens against these divisions.

The book “Let Them Eat Tweets” discusses conservatives’ challenge in gaining popular support while protecting elite interests—a dilemma faced in garnering votes without alienating powerful constituents.

Finally, White Christian Nationalism’s narrative overlooks its complicity in historical racial injustices while glorifying an idealized past rooted in biblical principles. Strong group identities often ignore their negative impacts but focusing solely on positive aspects can perpetuate ignorance about systemic issues both historically and currently.

The text discusses the complexities of political and cultural identities, emphasizing that different systems work for different societies at various times. It touches on the adaptability required in response to perceived threats and how this can lead to polarization or unity depending on circumstances. The author references Jonathan Haidt’s work on polarization and his metaphor of an asteroid threatening Earth, suggesting that crises like COVID-19 should bring people together but often do not.

The discussion shifts to American politics, particularly White Christian Nationalism, which is seen as a threat by some due to its influence over institutions like academia, the military, and corporations. There are concerns about authoritarian tendencies being accepted when they align with one’s own views during emergencies.

The concept of niche construction is introduced as a natural phenomenon where organisms modify their environments for better survival prospects. This idea is paralleled with Christian Nationalists’ efforts to shape American society according to their values through legislation and cultural influence.

In conclusion, the text argues that just as animals build habitats for themselves, groups like Christian Nationalists aim to create a societal niche that benefits them while potentially disadvantaging others.

He argued that niche construction and ecological inheritance are key evolutionary processes, a concept also seen in American Christian nationalism. However, I avoid labeling individuals as ‘Christian nationalists’ because such terms aren’t constructive.

Niche construction refers to how organisms alter their environments to benefit themselves through natural selection. Take lactose intolerance: most people globally can’t digest milk after infancy due to the lack of lactase enzyme production. Yet, in areas like Northern Europe where milk was vital for survival during famines, a mutation allowing adults to digest milk offered an advantage and thus spread. Consequently, these regions have lower rates of lactose intolerance compared to places like North Africa and Asia.

Our actions influence our own evolution; what we do today shapes our DNA tomorrow. Despite enthusiasm for revolutionary changes in evolutionary biology, niche construction fits within established theory without causing upheaval.

Evolutionary biology often feels beyond personal control since we can’t change our DNA as easily as improving our bodies or minds through exercise or education. We’re drawn to ideas suggesting we can affect our genetics despite this limitation.

I’ll discuss niche construction further another time—signing off for Shavuot.

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Decoding Doxxing (6-10-24)

Posted on June 10, 2024 by Luke Ford

01:00 The Far Right’s New ‘Badge of Honor’, https://www.theatlantic.com/technology/archive/2024/06/doxxing-far-right-influencers-anonymity/678645/
03:00 Mark Lilla on left v right, https://www.youtube.com/watch?v=ea0f_wCYW7Y
20:30 DTG on the lab leak hypothesis, https://decoding-the-gurus.captivate.fm/episode/supplementary-materials-7-lab-leak-discourse-toxic-youtube-dynamics-and-the-metaphysics-of-peppa-pig
31:00 Problematic, https://lukeford.net/blog/?p=155417
37:10 10 Days That Shaped Modern Canada (w/ Aaron Hughes, author), https://www.youtube.com/watch?v=YlcYkFZn19k
44:00 Elliott Blatt joins the show to talk about realism vs liberalism
46:00 Elliott struggles with street closures in San Francisco for a triathlon
54:10 Rethinking Narcissism: The Bad – and Surprising Good – About Feeling Special, https://lukeford.net/blog/?p=129773
1:05:00 Ben Shapiro – Candace Owens feud
1:08:00 Israel’s PR problems
1:21:00 Curious Gazelle joins to talk about Destiny
1:25:00 Milo steps away from sodomy
1:31:00 Destiny and Milo are performative “relating to or of the nature of dramatic or artistic performance”
1:34:00 Destiny sticks to his principles
1:48:00 Curious Gazelle’s journey into nihilism

Posted in Internet | Comments Off on Decoding Doxxing (6-10-24)