Civilian innocence: how states legitimise the use of violence.

Adrian de León
6 min readMar 6, 2024
Photo by Alexander Jawfox on Unsplash

In the previous article, we explored the fact that human rights is seen in the literature — often by supporters and critics a like — as a projection of Western idealism and endeavours to transform a world into its own image. This transformation is often known as either ‘liberalism’ or ‘cosmopotalism’, and these terms often adopt human rights as a project that enables its validity, and thus, justifies its expansion. How do ‘liberal’ nation states justify violence and war? This article will explore the concept of ‘civilian innocence’ as a mechanism for delineating the justification and legitimacy of the use of violence.

War and violence seem at odds with the notion that all humans have, as per the Article 3 of the Universal Declaration of Human Rights (UDHR), “the right to life, liberty and security of person.” Furthermore, we know that human rights are “commonly understood as inalienable, fundamental rights to which a person is inherently entitled simply because she or he is a human being and which are inherent in all human beings”. So, how are violence and killing permissible during acts of war?

The international and political scene is governed legally and ethically by the International Bill of Rights (Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights). We can find the justification of state violence and the overriding of Article 3 of the UDHR, in Article 4.1 of the ICCPR. Namely, “in time of public emergency which threatens the life of the nation…the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation.”

Therefore, violence from states is justifiable if in a situation in which the life of the nation is threatened. If violence and killing are clearly seen as a moral and ethical outrage in our civilian society, it is considered an irrefutable part of politics. In fact, as pointed out by Zehfuss (2012), “war is considered a central function of the state”, and he even goes to say that as civilians, “we are all involved: as taxpayers we finance the machinery of war, and when there is an actual war on, we are, by and large, expected to appreciate and support the soldiers who get their hands dirty on our behalf.”

It is an uncomfortable truth, from a Western perspective, that violence and war have been exported notions rather than domestic issues. In fact, war and violence between states is often seen as an issue that is considered external to our realities, and this is largely due to the fact that our generation and those of our parents are seen as the ‘post-war’ generation, one in which peace amongst European countries has been he norm for over 60 years.

We are a generation in which violence is most readily associated with non-state actors (e.g., al-Qaeda, ISIS, Neo-nazi militias, drug cartels etc…) and where violence is considered to be a last resort. However, if this image of a peaceful Europe was slightly denigrated by the Serbia-Bosnia conflict in the late 90s, it has seemingly been shattered by the invasion of Ukraine by Russia in February 2022. War is very much on the contemporary agenda, and with the ongoing conflict in Gaza between Israel and Hamas, there has been a renewed focus on the legitimacy of violence.

Are Hamas justified in their use of violence, or are they a terrorist group? To answer this question, stakeholders have utilised the notion of ‘civilian innocence’ as a term that helps delineate whether violence is ever justified. The notion of innocence comes from the latin ‘in-nocens’ which equates to “not engaged in harmful activity.” Therefore, as Grayling (2005) points out, soldiers may be targeted because they are a danger to ‘us’, where as innocent civilians ‘have done nothing, and are doing nothing, that entails the loss of their rights’ (Walzer, 1992). In fact, an important signifier of legitimate vs non-legitimate violence — contrasting an act of violence perpetrated by a state actor to that of a ‘terrorist’ group — centres on the presumption that nations in war do not target innocent civilians. To be precise, if an act of violence targets non-civilian populations such as military targets, then it is justifiable; if violence specifically targets civilian groups then this cannot be justified. The moral legitimacy of states relies heavily on this distinction, in fact, Elshtain (2003) highlights that:

The identification of terrorism as violating the most sacrosanct principle of the ethics of war plays a crucial role as it makes it the Other of legitimate war. Terrorism thus becomes the constitutive outside of war. This is particularly obvious in arguments that explicitly identify ‘our’ observance of non-combatant immunity as what sets ‘us’ apart from ‘terrorists’.

However, the demarcation of violence based on ‘civilian innocence’ is problematic, as it enables the state to utilise a vague concept as a justifier for committing gross acts of violence. After all, what constitutes an innocent victim? As Zehfuss (2012) points out:

The question of who may be said to be in the business of harming has therefore given rise to complicated arguments about whether some civilians may not actually constitute targets that would be no less legitimate than combatants. Traditionally, a frequently cited example has been about those who work in the armaments industry.

To use a contemporary example, when confronted with the killings of civilians, including thousands of women and children, in Gaza, Israel’s president Isaac Herzog claimed the following:

“It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not being aware, not involved. It’s absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’etat.”

This statement highlights the danger of legitimising violence under the realm of targeting, or not, ‘innocent civilians’, as its interpretation can be moulded to the whims of the agent imitating the violence. In fact, when Hamas targeted civilians in Israel during the attacks of 7 October 2023, a sense of clemency was accorded due to the fact that Israel, and its citizens, have been judged by factions of the global community as causing generational harms to Palestinians through acts of violence and non-violence such as illegal settlements on Palestinian land. In either case, this distinction based on innocence enables the legitimising of the practice of violence and says that “war is all right: we do not (mean to) kill civilians after all.” (Zehfuss, 2011).

Unfortunately, war, or the threat of it, is an irrefutable part of how states interact with one another. As Zehfuss (2011), states, “the use of force is part of that which we commonly call politics.” This is perhaps why instead of working towards a world where war is absolute, nation states and the United Nations have sought to create a legal framework that helps to provide a moral and ethical framework during times of war. These frameworks are known as the Geneva Conventions and outline the duties that countries must follow in times of conflict. These treaties hold countries accountable to the proper treatment of combatants and non-combatants, whilst also ensuring the protection of medical personnel. It is also a crime to target non-military infrastructure. The United Nations is responsible for holding countries accountable to these conventions and the legal framework of the Conventions is regarded as the best option we have to rein in the actions of nation states.

In summary, war and conflict on a realm that is above the every day notions of human rights, and within this the use of violence is justified by the notion of an ‘emergency.’ The notion of ‘civilian innocence’ helps to distinguish between legitimate state-sanctioned violence and illegitimate non-state violence, such as terrorist groups. In fact, it is the very existence of terrorist violence that helps to elevate the legitimacy of state violence, in the process, helping to ensure that war is seen as acceptable as long as it does not target innocent people. What constitutes as being innocent is left up to debate. Moreover, in the realm of politics, war is seen as inevitable process, and if morality is unable to prevent its proliferation, then the Geneva Conventions and its legal framework is the best instruments we have to curtail how the violence is administered by states.