Luke Ford

Nobody in international humanitarian law says they want power over the definition of legitimate violence. They say they protect the vulnerable, humanize war, or fill gaps in the law. That is the move. Interpretive authority is a status claim wrapped in humanitarian language, and Amanda Alexander’s scholarship strips that claim down to its structural components. Read together, her essays on the civilian, the laws of war, and the Nuremberg trials describe a system in which each expansion of humanitarian protection also expands the jurisdiction of those who claim to interpret it, and each new framework discards something from the one it replaces without acknowledging the discarding as a choice. The question that runs beneath all of it — the one her work raises but does not answer directly — is what was lost when crimes against humanity were severed from crimes against peace, and whether the humanitarian paradigm that replaced the anti-imperial one at Nuremberg has diminished civilian suffering or merely changed who controls the answer.
Alexander’s core argument runs against the standard progressive narrative. The expansion of international humanitarian law from the Hague Conventions through the 1977 Additional Protocols is usually told as a story of moral progress: more people protected, more violence constrained, the state’s monopoly on force slowly checked by the growing reach of humanitarian norms. Alexander argues the opposite. Each expansion of the law absorbed what had previously existed outside it, replacing alternative codes of legitimacy, heroism, and revolutionary justice with formal legal criteria. The free-fighter became a regulated subject. The just cause became a belligerent nexus. The heroic partisan became a combatant assessed against neutral, external standards. What looks like humanitarian progress is, underneath, the steady victory of state-centered legal expertise over every rival form of authority.
The Hague Conferences of 1899 and 1907 make this visible. Delegates from Switzerland and Belgium spoke with genuine admiration for patriots who fought outside formal structures, for the old men and women who took up arms against invaders. The German and Dutch delegations held firm: soldiers also have rights, and combatants must distinguish themselves, follow responsible command, carry arms openly. The Martens clause resolved the dispute by declaring that heroic acts simply exist outside the law. A heroic nation, Martens said, is like heroes, above codes, rules, and facts. This sounds like a concession to moral autonomy. In practice it meant that irregular fighters had no legal protection and could be executed. Admiration without legal recognition is not a compromise. It is exclusion dressed in praise.
The 1949 Geneva Conventions repeated the same move. When Denmark, the Soviet Union, and Israel argued that civilians defending themselves against illegal, genocidal aggression should receive prisoner of war status, the British delegation replied that the distinction between combatants and non-combatants had to be maintained even in the face of clear injustice. Formal, neutral law had to remain synonymous with the state. Individual or unorganized acts by civilians could not be countenanced. The law could expand to include partisans, but only partisans who resembled regular forces, organized under responsible command, attached to a recognized government, distinguishable from the surrounding population.
David Pinsof’s Alliance Theory illuminates what is happening beneath the surface of these debates. Every coalition presents its preferred definition of legitimate law as the obvious description of what humanitarian regulation requires. The state-centric formalists claim that without discipline and distinction, law dissolves into chaos. The humanitarian expansionists claim that without reaching irregulars and civilians, law abandons its moral purpose. The revolutionary movements claim that formal law serves imperial states and that justice requires recognition of people’s war. Each claim recruits allies, expands the defining coalition’s jurisdiction, and presents that expansion as the natural acknowledgment of how serious regulation works. None acknowledges that institutional interests shape the definitions. All present them as moral necessities.
The 1977 Additional Protocols represent the apparent triumph of the humanitarian expansionist coalition. National liberation conflicts were recognized as international armed conflicts. Combatant status was extended to guerrillas who did not distinguish themselves at all times, only from the point of deployment. The PLO was admitted to the Diplomatic Conference. Revolutionary movements that had operated outside the law were brought inside it. This looked like a victory for Third World states and anti-colonial movements. Alexander’s analysis shows it was something more complicated. The extension of the law did not change the character of the law. Article 44 on combatant status was written in legalistic language, ostensibly objective, deliberately obfuscatory. The word deployment was chosen precisely because its ambiguity made it acceptable to more delegations. What the revolutionary movements got was not recognition of their moral legitimacy but absorption into a framework of formal legal criteria that would govern them on the same terms that governed everyone else. The heroic outsider became a regulated insider. The just cause became a set of compliance conditions.
Stephen Turner would identify this as juridification, the spread of formal legal reasoning into domains that previously had their own systems of meaning. Turner argues that what looks like expanded protection is often expanded expert jurisdiction. Every gap identified in the law creates an opportunity for legal elites to declare themselves competent to fill it. The category of the civilian, which Alexander traces to World War One propaganda that simultaneously framed non-combatants as helpless victims and legitimate strategic targets, is not a timeless principle. It is a historically contingent construction that gave international lawyers a new domain of authority. The distinction between civilian and combatant is not a description of a pre-existing moral reality. It is a legal artifact that organizes elite attention around a particular way of seeing people, and that framing expands the jurisdiction of those who claim to interpret it.
The Israeli Supreme Court’s Targeted Killings Case demonstrates where this logic leads. President Barak declared that there are no black holes in international law: every person and every conflict falls within its reach. Terrorists who do not qualify as lawful combatants must be civilians. As civilians who take a direct part in hostilities, they lose protection for such time as they do so. The determination of what counts as direct participation, what direct causation means, what proportionality requires, all of this opens into a field of indeterminate legal argumentation that can be extended indefinitely. The state’s fight against terrorism, Barak concluded, is also law’s fight against those who rise up against it. The expansion of the law to cover everyone does not constrain the state. It enmeshes the state’s enemies in a juridical web from which there is no exit that is not itself defined by the law.
What makes this system so durable is the sincerity of its participants. Humanitarian lawyers believe they are protecting civilians. ICRC delegates believe they are filling genuine gaps that leave people exposed to violence. Academics who critique proportionality rules believe they are making the law more humane. Turner would note that this sincerity is precisely what allows the status game to run beneath the surface of the moral commitment, invisible to the players. The expansion of expert jurisdiction feels like humanitarian progress because the experts genuinely care about the outcomes they claim to pursue. The incentives of the game operate in the dark, sheltered by the conviction that the work is good.
The uncomfortable truth Alexander surfaces is that the humanitarian paradigm enables and conceals particular forms of violence even as it claims to constrain them. Civilians who cannot be depicted as innocent and passive lose their protection. Political actors, people who support armed resistance or feed intelligence to enemy forces, fall outside the category that the law protects. The law’s insistence on depoliticized innocence as the condition of protection means that those who exercise political agency in situations of extreme oppression become, by legal definition, legitimate targets. The expansion of law to cover everyone has produced a world where the determination of who counts as protected is controlled by legal elites whose formal criteria absorb every rival claim to legitimacy without ever acknowledging the absorption as a choice.
Understanding how that control was secured requires going back to the category itself.
Before 1914, the relevant legal subject was the citizen, not the civilian, and the citizen was understood as a political being bound to the fate of the state. Private individuals warranted some protection, but only conditionally, only insofar as they remained genuinely passive, and always subject to the overriding needs of military necessity. The citizen could become an enemy at any moment. The Hague Conventions reflected this. Article 25 prohibited bombardment of undefended towns not because the people inside them had inherent rights but because no military purpose required attacking them. Protection followed from military logic, not from the status of the person.
What the First World War did was sever that connection. Allied propaganda, responding to the German invasion of Belgium, needed to establish German guilt, and it did so by insisting that the Belgian population was innocent, passive, feminized, and helpless. The image of women and children shot down like rabbits, of babies bayoneted, of nuns raising their hands to heaven while towns burned, was not simply a description of events. It was a legal argument dressed in the language of outrage. If the population was genuinely passive and genuinely helpless, then the German reprisals were not the suppression of a franc-tireur resistance but atrocities against people who could not possibly have deserved them. The propaganda worked in part because the legal framework was flexible enough to absorb it. A population that was passive and innocent looked different from the citizen that the Hague negotiators had imagined, and the difference created space for a new legal category.
Aerial warfare completed the transformation. The bomber could not distinguish a fortified from an unfortified town. The old categories broke down when applied to an aircraft at altitude. The commission of jurists that produced the 1923 Hague Draft Rules needed a new organizing principle, and they found it in the military-civilian distinction that propaganda had made available. The civilian entered international law not as a discovery of pre-existing moral reality but as a legal solution to a technical problem, shaped by the particular image of the non-combatant that the war had produced.
That image was paradoxical from the start, and the paradox has never been resolved. The civilian was at once a primary military target, since the entire population served the industrialized war machine, and a protected innocent, since protection required the fiction of passivity. The civilian is defined not by any positive attribute of the person but by negation: whoever is not a combatant. That definition is indeterminate at its edges, and the edges are exactly where the hard cases live. The munitions worker. The family that feeds intelligence to resistance fighters. The farmer who stores weapons. The 1923 Rules already acknowledged that munitions workers were military targets. The encoding of both sides of the paradox was there from the beginning, and it has never been undone.
This matters for understanding what NGOs took authority over in the 1990s. When Human Rights Watch and Amnesty International declared themselves competent to assess civilian casualties and apply the principle of proportionality, they were not entering a settled legal field with clear categories. They were entering a field built on a category that has always required someone to decide who counts as innocent and who has forfeited that status through political agency or proximity to military activity. The sorting authority is what the field has always been about.
The displacement of states as the primary authors of international humanitarian law did not happen through treaty revision or formal institutional reform. It happened through a shift in who got to speak authoritatively about what the law already said. That distinction matters. States negotiate, sign, ratify, and sometimes refuse to ratify. NGOs do none of those things. What HRW and Amnesty did instead was something more subtle and, in the long run, more consequential: they declared the law settled at a moment when lawyers who had spent careers arguing about it knew perfectly well that it was not.
Alexander’s account of the Kosovo commentary makes this visible with unusual clarity. The legal literature on the Gulf War had been dominated by military lawyers who treated proportionality as a permissive principle, vague by design, weighted toward the operational needs of states. That was not a fringe position. It reflected decades of negotiating history, the explicit reservations of major powers at the Diplomatic Conference, and the considered judgment of commentators who had read the drafting record carefully. When HRW published its report on NATO’s air campaign, it cited none of that history. It stated that Additional Protocol I represented customary law binding on all states, offered no authority for the claim, and then applied the Protocol’s proportionality standard in a form stricter than the text required. Amnesty International did the same. And academic lawyers, writing about Kosovo, followed their footnotes.
What made this possible was a generational and cultural shift in who populated the field. The skeptical military lawyers of the early 1990s gave way to a cohort drawn to international humanitarian law by humanitarian concern rather than operational expertise. They came from human rights backgrounds. They trusted human rights organizations. They shared a sensibility that made HRW’s conclusions feel not just correct but obvious, and they treated the Office of the Prosecutor’s more cautious proportionality analysis as evidence of bias rather than professional judgment. The paradigm, as Alexander puts it in Kuhnian terms, had shifted. Working outside it no longer counted as doing law.
Turner’s analysis of expert jurisdiction helps explain the mechanism. Expertise is not just knowledge. It is a social relationship in which some speakers get treated as authoritative and others do not, regardless of the underlying quality of their arguments. What changed between the Gulf War and Kosovo was not the text of Additional Protocol I, which had not been amended, and not the state practice, which remained deeply inconsistent. What changed was the community of people whose pronouncements on the law were taken seriously, and that community had reorganized itself around humanitarian values in a way that made NGO reports legible as legal authority while making military legal analysis look like special pleading.
The circuit closed. NGOs cited the law; academics cited the NGOs; the NGOs cited the academic commentary in subsequent reports; and the whole structure presented itself as the settled consensus of the field. What this displaced was not just the military lawyer’s version of the law but the state’s formal role as the engine of legal development. States make law through the slow, contested, politically exposed process of negotiation and ratification. That process leaves a record. Reservations get filed. Delegations explain their votes. Disagreements stay visible in the drafting history. The NGO path to norm-setting leaves almost none of that. A report gets published, lawyers repeat its conclusions, the conclusions harden into orthodoxy, and the moment of choice disappears. By the end of the 1990s, the contested, nearly two-decade struggle over Additional Protocol I’s authority had been rewritten as a long tradition of humanitarian principle that any serious lawyer simply acknowledged.
The uncomfortable implication is that this mode of norm-setting is structurally less accountable than the one it replaced. A state that refuses to ratify a treaty takes a visible, attributable position. The NGO that declares customary law without citation, and the academic who repeats the declaration without scrutiny, leave no comparable record of choice. The law appears to develop by recognition rather than decision, by the gradual acknowledgment of what was always already true rather than by the exercise of power. That appearance is the point. It is what allows interpretive authority to function as humanitarian service rather than as the jurisdictional claim it is.
The NGO reports resolved the indeterminacy of the civilian category not by eliminating it but by transferring custody. They narrowed the category of legitimate targets and widened the category of protected persons. But they did not and could not eliminate the need for someone to sort the passive from the active, the uninvolved from the complicit. By insisting that any attack causing civilian casualties must satisfy a demanding proportionality standard, they transferred the question of who counts as protected from the definition of civilian to the assessment of anticipated harm. Someone still has to decide what counts as excessive. The NGO reports changed who gets to sort. They did not change the fact of sorting.
What persists, underneath both the military and the humanitarian readings, is the original contradiction: the civilian is defined as passive and innocent, but modern war has always known that populations are neither. The post-1923 law offers full protection on the ground of innocence. But the definition of innocence is not self-executing. Those who exercise political agency in situations of extreme oppression, who support resistance movements, who feed and shelter fighters, who work in industries that serve the war effort, fall outside the protection on the same logic that always governed the field. The humanitarian paradigm made the protection of civilians a legal imperative. It did not change who counts as a civilian.
It also, in a way that requires a longer historical lens to see clearly, narrowed the question it was willing to ask.
The interwar period shows how the civilian category can be run in reverse, made to justify targeting rather than protection, when the surrounding culture supplies the right moral logic. The trench poets did not write in favor of bombing civilians. Their work expressed horror at war, grief for the dead, contempt for the old men who sent the young to die. But the moral structure of that literature, the identification of the home front as complicit, the civilian population as guilty bystanders who owed something to the soldiers they had sacrificed, quietly prepared the ground for a different conclusion than the poets intended. If the people behind the lines bore responsibility for the war, then bringing the war to them was not cruelty. It was fairness. Fuller said it plainly. Douhet said it with strategic precision. Liddell Hart, the liberal among them, said it with reluctance but said it nonetheless.
International lawyers of the interwar period absorbed this narrative without much resistance. They did not need to be told that bombing civilians was permissible. They had already accepted the underlying premise: that in a modern, industrialized, total war, the distinction between combatant and civilian was dissolving, that munitions workers were legitimate targets, that anyone who contributed to the war effort had forfeited the protection of non-combatant status. This was not a fringe position among militarists. It was the mainstream view of liberal internationalists writing textbooks and drafting codifications. Garner said the category of non-combatant would be greatly reduced in future wars. Oppenheim, whose name anchored the field, said the combatant-civilian distinction was seriously threatened and offered no strong argument that it should survive.
Their disciplinary pessimism reinforced the cultural narrative. Conventions that lacked ratification did not bind states. Custom reflected actual practice, and practice was brutal. The 1923 Hague Draft Rules on Aerial Warfare were described as abortive almost immediately. Law, in this account, was not a check on violence. It was a description of what states were willing to do, lagging slightly behind events and carrying no independent moral weight. This professional self-understanding matters because it forecloses the kind of move that NGOs would make in the 1990s. When HRW declared Additional Protocol I customary law binding on all states, it made a claim about what the law required independent of state practice. That argument was not available in the 1930s. The theoretical options of the interwar period required law to track either state consent or actual custom, and neither produced anything useful for the protection of civilians under aerial bombardment. The NGO ascendancy was possible only because that conception had been replaced by one in which law could run ahead of practice, in which the aspirational statement could become the authoritative statement.
The humanitarian paradigm that produced that possibility was not, however, a simple continuation of what Nuremberg had started. It was a replacement built on a different moral foundation. And that is where the most consequential displacement in Alexander’s account occurs.
The standard complaints about the International Military Tribunal are familiar. The trials were victors’ justice. Crimes against humanity were oddly subordinated to crimes against peace. The Holocaust was distorted into a preparation for aggressive war rather than treated as the central atrocity it was. Victims’ voices were marginalized. These failures are usually attributed to political constraints on the prosecutors or to the retrospective quality of the law, as if the IMT had the right moral compass but could not quite reach what it was pointing toward.
Alexander argues instead that the IMT was not failing to do what it intended. It was succeeding at something different from what later observers assumed it intended. The trials told a story about aggressive, imperialist war as an economic institution, and they told that story with considerable coherence. The connection between crimes against humanity and crimes against peace that bewilders later commentators was, for the delegates at the London Conference, not a puzzle at all. It was obvious. War was the product of imperialism. Imperialism was the organized extraction of resources and labor from subject peoples through colonial domination. The persecution of the Jews, in the prosecution’s account, was part of the preparation for that kind of war, a clearing of the home front for the colonial campaign ahead. Jackson said it directly: you cannot take neighboring lands from their tenants without committing crimes against humanity. Shawcross said it from the other direction: these things occur when men embark on total war for aggressive ends.
The source of this narrative ran from Lenin through Trainin to Jackson by way of a shared anti-imperial sensibility that crossed the boundary between Soviet doctrine and Western liberal thought. Lenin’s analysis of imperialism as monopoly capitalism seeking colonies, markets, and raw materials was not merely a Marxist proposition. Du Bois made the same argument about Africa in 1915, a year before Lenin published. Leonard Woolf made it about economic imperialism more broadly. Quincy Wright and Lauterpacht, both of whom advised Jackson, described colonialism in terms that tracked the economic critique. Chanler, the obscure American lawyer who helped convince Roosevelt to support the aggression prosecution, wrote that the age of imperial expansion had destroyed the distinction between just and unjust wars and that restoring that distinction meant leaving the imperial era behind. The language was different in each case, but the underlying framework was the same: war comes from imperialism, imperialism is economic, and any legal order that tolerated imperial war was ethically bankrupt from its foundation.
The IMT successfully translated this framework into law. What the trials told was a history of aggressive colonial war motivated by economic logic — the seizure of territory, raw materials, and labor — and the crimes they described were shown as the direct expressions of that logic. Slave labor was a colonial and economic project. The planned starvation of Soviet populations was the consequence of a war for grain and raw materials. The persecution of the Jews was, in the prosecution’s account, preparation for the kind of national consolidation that colonial war required. These were not individual acts of cruelty. They were the outputs of a system.
The post-Cold War humanitarian paradigm that displaced this framework is built on different ground. It centers on the civilian as a protected category and understands civilian deaths as the primary legal harm, regardless of whether the war itself is aggressive or defensive, just or unjust. The shift from the IMT’s framework to this one was not a simple evolution. It required discarding, or at least marginalizing, the anti-imperial narrative that had made crimes against peace thinkable in the first place.
The cost of that discarding is real. When crimes against humanity were detached from their connection to crimes against peace and became freestanding violations, they gained juridical purity. They no longer depended on proving aggressive war. But they also lost the structural analysis that had animated them. The IMT’s account, for all its distortions, named colonialism as a crime. It understood the mass murder of civilian populations as the direct expression of an economic logic, not merely as an excess of individual cruelty. The civilian protection framework that replaced it treats civilian deaths as the problem to be minimized and asks whether the attacker took precautions and whether the harm was proportionate. It does not ask whether the war itself served the economic interests of the attacker at the expense of the attacked. That question, which Lenin and Trainin and Chanler all considered the central one, has no place in the framework HRW and Amnesty built when they declared Additional Protocol I customary law and rewrote the proportionality standard for Kosovo.
Turner’s analysis of expert jurisdiction and Pinsof’s Alliance TheoryNuremberg argument adds something they do not quite capture: the way a legal framework can succeed in translating a particular narrative into law, and then be replaced by a different framework that treats its predecessor’s achievements as incomplete rather than as choices. The IMT successfully juridified the anti-imperial critique of aggressive war. The post-Cold War humanitarian paradigm successfully juridified the protection of the passive civilian. Each displaced what came before it without acknowledging the displacement as a choice. Each presented itself as the natural continuation of humanitarian progress. Each carried, underneath that presentation, a particular theory of what causes suffering and who bears responsibility for it.
The anti-imperial framework blamed structural economic forces and the states that prosecuted colonial wars. The civilian protection framework blames individual commanders who fail to take precautions. One names the system. The other regulates its conduct. That difference is not a technical refinement. It is the question the field has stopped asking.