By TARSUS GENUS*
The main instrument of defense for commanders who commit war crimes in liberal-democratic modernity is the concept of “collateral damage”
The barbarity of wars is evident, of course, in the legal concept that international law gives to “collateral damage”. According to international law, this is reasonable because war — as a solution to conflicts between states and nations — is acceptable in all its dramatic dimensions. Its inhumanity includes the acceptability of the deaths of young people, children, the elderly, women and civilians not involved in any military action, whose inert bodies, after a bombing, become “collateral damage”.
When thus qualified and accepted, the dead lose their voice and importance and military action becomes legal and legitimate, in the context of war where “damage” is inscribed, regardless of the blood spilled, the dismembered bodies and the causes at stake. Wars are hell in compote, served as a dessert for failed politics and as a prize for the owners of the oligopolies of arms factories.
The rules on the limits of military action in a war are not normally followed by the armies in conflict, because direct economic interests, claims to territorial control and the functioning of the arms industry have greater normative power than the United Nations Charter. Therefore, when countries are at war, wars generate their own norms, not only through the military force used — increasingly controlled from a distance — but also through their ability to organize information to form a public opinion docile to their purposes.
But the rules that regulate wars are important for “after the wars”, when the winners use them to punish the losers from their victorious perspective, using for themselves the same rules of humanitarian law that they certainly also violated during the war. They then interpret them to make their more (or less) humanist views hegemonic, more (or less) appropriate to their ends, always exploring the limits between what is barbarity and what is civilizational survival.
José Luís Fiori has highlighted something along these lines in several of his studies: “the main means of resolving the imbalance between the structure of the international system and the distribution of power has been war, more specifically what we call hegemonic war.” The rules of international law also make up the way in which this hegemony is achieved, as provided for in the Geneva Conventions (1949) and other additional protocols, which deal with methods of war, the “means” of waging war and the protection of certain equipment and “categories of people” who must be protected from military attacks.
The International Criminal Court (ICC), created by the Treaty of Rome in 1998, tries individuals who commit war crimes, not the States represented by them in war scenarios. The International Criminal Court only comes into action, however, when the national State, from which the possible criminal originates, demonstrates that it is providing cover for war crimes, presenting itself as inept or unwilling to judge the person, according to the norms of humanitarian law. The distinction between civilians and military personnel, the proportional attack and precautionary measures (to spare the civilian population) are the three basic principles of “humanitarianism” in wars.
In fact, the “humanitarian” rules on war are a contradiction — in material and formal terms — because war, in itself, is a millennial and universal historical element of destruction of the human being who returns to his animalistic naturalness. A question that cannot be silenced: will Benjamin Netanyahu one day be submitted to the International Criminal Court? In formal terms, this will depend on the Israeli “political class” after he is swept from power, if he ever is, because decisions about the future of a head of state who commits crimes of any nature will always be subordinated, more than to constitutional or legal determinations, to the dominant hegemonic political pact in a given state.
This State will be closer or further away from the higher norms that govern the State in question: Donald Trump has not been held accountable for the most serious crime committed to date against the American Constitution, which is the attempted coup d'état; Jair Bolsonaro has not been held accountable — until now — not only for the attempted coup on January 8, but also for the 300 deaths that his denialist and anti-scientific policy, defended personally and directly by him, caused during the pandemic.
The main instrument of defense for commanders who commit war crimes in liberal-democratic modernity is the concept of “collateral damage,” that is, the concept of “damage” caused to people—groups or parties—who are not military targets, but who suffer the effects of war in the imprecise boundary between a military action against a legitimate target—physical or political—and the space of civilian, age-related or physical protection, which is not by definition a military target. Although it is regulated by international humanitarian law, “collateral damage” is a legal-political “excuse” both for paramilitary organizations that commit terrorist acts against the enemies of their cause, and for war commanders, defined by the national State.
They define the proportionality of their actions according to the urgency of their defense or their cause. What is the difference — common sense asks — between the women and men, civilians, children, elderly, sick, and young people who died in Hamas’ terrorist attacks and the same human contingent that suffered the military violence of Israel’s response, in what the mainstream media calls the “war against Hamas”? The difference is the number of deaths, whether due to “collateral damage” or due to the disproportionate political decisions that were made to achieve the best outcome of the military struggle.
Well thought out, the concept of “collateral damage” is much more a category of politics, forged in the relationship between States to legitimize wars and less a legal category, forged within the scope of legal theory, because it is impossible to understand its material effectiveness outside the relations of political force and military power between sovereign States, whose serious conflicts are resolved by force, not by law, after they go to war.
In this situation, each state claims that the “just” (from “just war”, a concept that comes from the Middle Ages) is on its side, not on the side of the enemy. Being a concept more suited to politics than to law, the notion of “side effects” can be extended to politics, when its protagonists are closer to violence than to arguments, more to the dissemination of hatred than to the normal rationality of the fight aimed at the public interest.
The Republic of Curitiba, for example, was a war operation, not a set of legally-guided processes and investigations to combat corruption. And as a war, it generated side effects in several dimensions, not to mention its central effects, later corrected by the Supreme Federal Court.
I will mention three highly serious “side effects”: first, the destruction of the political sphere as a contentious issue in national democratic life, which was a space for confrontations where no significant leader had the legal security to publicly defend the death or torture of his adversaries; second, the facilitation of the emergence of political-religious groups that daily attack the secularity of the State and manipulate people’s good faith, to steal their small savings, using them to finance elections, all in the name of delirious “anti-communism”.
Third, the demonization of freedom of the press and the encouragement of political violence through arms control, in fact an act of ingratitude towards the hegemonic media, responsible for the naturalization of the main figure of proto-fascism in the country.
In Rio Grande do Sul, we had a very significant side effect, which, combined with the pandemic, changed the political polarization that for the last 50 years had been between democratic conservatives and progressives, or between democratic center-right and center-left political forces. This change placed a polarization at the political heart of the state that we did not face even during the Military Regime: it led to the final decision of the dispute between an extreme right-wing bloc, deniers in terms of climate and health issues (originating from militarist Bolsonarism) and an entire political field (with a center-left identity) that is already reorganizing itself for the second round clashes.
The city does not need politicians, the city needs technicians with a building manager, the city suffered twice as much in the climate catastrophe, but no one was responsible, this is the litany that prepared this second round, as a humiliating side effect for the city of Porto Alegre, which was once the world capital of democracy, but which can still rise again through the popular vote on October 27th.
*Tarsus in law he was governor of the state of Rio Grande do Sul, mayor of Porto Alegre, Minister of Justice, Minister of Education and Minister of Institutional Relations in Brazil. Author, among other books, of possible utopia (arts & crafts).
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