An Interview with Professor Jennifer Welsh on the Individualization of War

By Rebecca Sutton

 

In the spring of 2019, the five-year ERC-funded ‘Individualization of War: Reconfiguring the Ethics, Law and Politics of Armed Conflict’ (IOW) project draws to a close. I had an opportunity to interview the project’s Principal Investigator, Professor Jennifer Welsh, to learn about her experiences at the helm of this path-breaking interdisciplinary project. Professor Welsh is currently the Canada 150 Research Chair in Global Governance and Security, as well as the Director of the Centre for International Peace and Security Studies at McGill University. She was previously Professor and Chair in International Relations at the European University Institute (EUI), where the IOW project was based. Prior to that, as Professor in International Relations at the University of Oxford, Professor Welsh was one of the founders of the Centre for Ethics, Law and Armed Conflict at the University of Oxford.

 

Rebecca Sutton: How did this project on the ‘Individualization of War’ initially come together?

Jennifer Welsh: The IOW project was an outgrowth of the work I had been doing with Dapo Akande and David Rodin (Co-Investigators of the IOW project) in the initial period at the Oxford Institute for Ethics, Law and Armed Conflict (ELAC). It came out of this collaboration between international law, international relations, and moral philosophy. Four years into the existence of ELAC, we began to think more concretely about what a future research project would look like – a broader program dedicated to some of the bigger questions underpinning the work we had been engaged in. We put together an integrated proposal that encompassed three different manifestations of what we began to refer to as ‘individualization’ in war: protection, liability and accountability.

Rebecca Sutton: In what ways is the individual becoming increasingly prominent in armed conflict, generally speaking?

Jennifer Welsh: We made a conscious decision at the beginning of the project that we were going to focus on discussing the impact of individualization, as well as its different manifestations, rather than its origins. This was partly because historical engagement was not our comparative advantage and also because there was a significant recent literature addressing the history of international criminal justice, the turn towards individual human rights in the ethics of war, and the origins and codification of norms such as Responsibility to Protect. Instead, we began with an open-ended question: Where are we seeing individualization in the theory and practice of war? How is it manifest? Quite early on, we could see it was manifesting empirically – for example, in the conduct and regulation of war – but also in theory. In moral philosophy, there was a big strand of work led by Jeff McMahon, David Rodin, Cecile Fabre, Helen Frowe, Seth Lazar and others, who were revisiting just war theory with an ethics of human rights. There was also an exciting strand of literature emerging on the micro-foundations of civil war, led by Stathis Kalyvas, which looked at the factors motivating the behaviour of individuals – particularly individual combatants.

Rebecca Sutton: Can you describe the manifestation of individualization in the context of protection?

Jennifer Welsh: In the protection stream, we detected an increasing focus on individual protection as both a cause of war and also a dominant theme in the conduct of war. This was particularly relevant in peacekeeping, with Protection of Civilians mandates becoming standard at the end of the 1990s. Here we looked also at the emergence and evolution of the Responsibility to Protect, a principle that has been at the centre of my own academic work and policy engagement, and engaged with the problem of state consent as a pre-condition for the delivery of humanitarian assistance. This latter area eventually generated a significant piece of policy-related work, focused on an analysis of the concept of the ‘arbitrary withholding of consent’ by parties to a conflict.

Rebecca Sutton: And what about individualization in the liability stream?

Jennifer Welsh: In the liability stream, we asked a general but fundamental question: what does it mean to give credence to the idea that individuals have human rights in the context of armed conflict? This entailed an examination of the interaction of human rights law and IHL – a relationship which has grown in complexity over the last decade or so as jurisprudence has emerged. The liability stream also considered the question of who (or which individuals), from an ethical standpoint, should be liable to be killed in armed conflict. Revisionist just war theory holds that only those that pose an imminent threat to others lose their right not be killed. The older notion that all enemy combatants – on the basis of their status rather than behaviour – are liable to be killed did not stand up to the scrutiny of ethical approaches based on human rights. We also noted the ‘real world’ phenomenon that certain military Rules of Engagement were acknowledging this kind of logic through the embrace of what one US military commentator has called “courageous restraint”. The flip side of this changing logic is the debate within the ethics of war as to whether certain non-combatants, because of the threat they pose to others, might also be liable to be killed. Is it legitimate, for example, to target particular political leaders, or leaders of terrorist organizations? How should we evaluate this practice from an ethical standpoint? Finally, particular questions about the human rights of soldiers and detainees were also relevant subjects of analysis in this second stream.

Rebecca Sutton: And, finally, what about individualization in the accountability stream?

Jennifer Welsh: In the accountability stream, we studied individual criminal accountability as perhaps the most commonly thought of manifestation of individualization. We focused on the development of the ICC and how it was exercising its jurisdiction, and how the prosecution of individuals intersected with more traditional strategies of conflict resolution. We also looked at developments that were emerging around efforts to define the crime of aggression, and activate the ICC’s jurisdiction over this crime, through the so-called Kampala amendments. We also examined the way in which states engage with the ICC, highlighting in particular the practice of self-referral. Applying a political science lens, we found that political leaders were in some cases instrumentalizing the individualization of accountability – using it to criminalize political opponents and consolidate their own power.

Rebecca Sutton: What are some of the forces pushing back against this individualization process? What sources of contestation has the project uncovered?

Jennifer Welsh: The entire project was premised on the idea that individualization is a process – but not necessarily a linear one. Consequently, understanding pushback against it was part of the project as well. We do not (yet) live in a world in which individuals are the central figures in the conduct and study of armed conflict; they continue to coexist with collective entities, just as individualist values such as human rights coexist with collective values such as national self-determination. But as we examined manifestations of individualization, we also noticed that this process was creating all kinds of dilemmas for the key actors in armed conflict – whether military actors, humanitarians, international organizations, or states. One of the key outputs of the project is a schema for identifying different types of dilemmas – both normative and practical – and categorization of the different ways in which actors are resolving these tensions. In terms of actual pushback against individualization, we also observed variation in form and intensity. Some push-back is very principled: it challenges the very idea that individuals should be at the centre of the conduct, or the normative assessment of war. Those adopting this viewpoint argue that war is a practice among collectives, and particularly sovereign states. To give a clear example of this, some now question whether there should be a return to immunity for heads of states, instead of criminal accountability for such actors. In other cases, the process of individualization faces less of a ‘frontal assault’; instead, the contestation focuses on how individualization has been institutionalized. So, to continue with the example, rather than questioning the legitimacy of individual criminal accountability itself, some contest whether an institution configured like the ICC is the right model for delivering individual criminal accountability. But in many case, the backdrop to the pushback I’ve described is the increasingly vocal criticism of human rights, globally, and the clawing back of human rights commitments.

Rebecca Sutton: Tell me more about the project’s methodology.

Jennifer Welsh: We were very question-driven in the IOW project, rather than method-driven. So if we wanted to look at how individualization was being manifest, in some instances that required more inductive empirical fieldwork, or workshops bringing different kinds of actors together to understand how individualization really ‘worked’. In other cases, our research entailed more traditional conceptual analysis. Ultimately, the real novelty of the IOW project was its interdisciplinarity. We have had phenomenal advances in scholarship on all of the dimensions of armed conflict that I’ve been discussing here. But to try to begin to analyse them together, in an interdisciplinary way, was the next challenge. Our shared experience in building ELAC showed us the value of bringing together different types of scholars together to analyse the law, ethics, and politics of armed conflict. One potential challenge with interdisciplinary work is incommensurability as you move from deep theory to practice. Take the term ‘legitimacy’, for example. For moral philosophers, it relates to foundational principles and whether you are logically ‘cashing out’ those principles in whatever institutions or actions you are recommending. In many branches of social science, however, legitimacy is also viewed as socially constructed. What is perceived as legitimate is partly a function of what is deemed to be right with reference to certain values, or procedures, but it’s also more complex than that. For a moral philosopher, that’s a deeply uncomfortable position because it means that what is legitimate can seem to be a moving target.

Rebecca Sutton: How, as a team, did you avoid getting stuck at these kinds of impasses?

Jennifer Welsh: In the IOW project we focused on helping members of the team approach their respective research themes from different disciplinary angles. If we take the principle of self-determination, for example, we find a tension between respect for a particular community and the promotion of individual human rights. This normative conflict could potentially be resolved through re-conceptualizing the relevant concept or through legal interpretation – as when we say a body of law applies to a particular situation as the lex specialis. We also paid attention to institutional design, asking whether a decision, procedure, or policy could be devised that would allow an actor to pursue two equally valuable objectives. Coming back to the work on the delivery of humanitarian assistance in armed conflict, we find that state consent is a very important core principle. The IOW project dug more deeply into that principle, to ask more about what values consent represents. What is it a proxy for? Where does state consent ultimately derive its privileged position from?’ The lawyers on the project subsequently became much more interested in not just how consent functions as a legal requirement, but also in how it functions as proxy for an underlying collective value. These were the most stimulating kinds of interdisciplinary discussion that we had.

Rebecca Sutton: What kinds of outputs were generated as a result of these ongoing conversations and engagements?

Jennifer Welsh: For academic outputs, we will have an edited book dedicated to individualization, three monographs on different aspects of individualization, various articles and sections of special issues by team members, chapters in edited books, a series of policy briefs and guidelines, and – in some cases – workshop reports. We will also have a final report that will be made public, which will include our conceptual framework. We hope that this framework can be used by other scholars. I will also produce a single-authored work where I try to make sense of what the trajectory of individualization has been and might be.

Rebecca Sutton: What most surprised you, in your experience working on this five-year project?

Jennifer Welsh: First, I was struck by the tensions that arise within the process of individualization itself. We found that there can be advancements in one form of individualization that then creates difficulties with respect to another aspect of individualization. We saw this with the increasing practice of targeted sanctions, where the greater precision in targeting of individuals also potentially created risks to human rights. Also, the criminalization of aggression and activation of the jurisdiction of the ICC could generate problems for the pursuit of individual protection through the use of force, as it might become less likely that actors would use force for humanitarian purposes. What also surprised me in particular was just how far advanced some processes of individualization actually are. With respect to the rights of soldiers and detainees, for example, or some military organizations’ interpretation of their own rules of engagement, individualization has seeped heavily into practice in ways that have not been fully captured in scholarly literature.

Finally, a big part of the experience was the fun you can have with an interdisciplinary team. When people are at the top of their game, and you give them big questions and let them pursue the research projects they are passionate about, the meetings that result are just a huge amount of fun.

 

Rebecca Sutton was formerly a post-doctoral researcher on the IOW project, based in the Centre for Ethics, Law and Armed Conflict at the University of Oxford. She conducted field research on the protection of civilians research stream in South Sudan and the Central African Republic. She is currently based at Edinburgh Law School as a Teaching Fellow in Human Rights Law.