Distinction and the Ethics of Violence: On the Legal Construction of Liminal Subjects and Spaces Nicola Perugini Department of Politics and International Relations, University of Edinburgh, Edinburgh, UK; nicola.perugini@ed.ac.uk Neve Gordon Department of Politics and Government, Ben-Gurion University of the Negev, Beer-Sheva, Israel and Department of Politics and International Studies, SOAS, University of London, London, UK; ngordon@bgu.ac.il Abstract: This paper interrogates the relationship among visibility, distinction, international humanitarian law and ethics in contemporary theatres of violence. After introducing the notions of “civilianization of armed conflict” and “battlespaces”, we briefly discuss the evisceration of one of international humanitarian law’s axiomatic figures: the civilian. We show how liberal militaries have created an apparatus of distinction that expands that which is perceptible by subjecting big data to algorithmic analysis, combining the traditional humanist lens with a post-humanist one. The apparatus functions before, during, and after the fray not only as an operational technology that directs the fighting or as a discursive mechanism responsible for producing the legal and ethical interpretation of hostilities, but also as a force that produces liminal subjects. Focusing on two legal figures—“enemies killed in action” and “human shields”—we show how the apparatus helps justify killing civilians and targeting civilian spaces during war. Keywords: international humanitarian law, liminality, ethics of violence, civilian, distinction, battlespaces … violence always needs justification. (Arendt 1970:77) The bedrock of international humanitarian law is arguably the principle of distinction. However, this principle itself has been dependent on the ability to render a plurality of actors visible, to define the relationship among them, and make distinctions between combatant and noncombatant, as well as military and civilian sites. Accordingly, when violence in conflict zones becomes the object of public and legal scrutiny, we often witness a legal-visual investigation about the degree of distinction adopted by the actors in the battlefield. To be sure, the unfolding events within the battlefield are frequently ambiguous, primarily due to the so-called “fog of war”, a common expression invoked by politicians as well as military and legal experts in order to underscore the difficulty of making distinctions between enemy combatants and innocent civilians in the midst of war. Consequently, analyzing the way distinction is produced, its epistemic conditions of possibility, as well as its political and ethical objectives is both necessary and urgent. Antipode Vol. 49 No. 5 2017 ISSN 0066-4812, pp. 1385–1405 © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. doi: 10.1111/anti.12343 1386 Antipode In this paper, we focus on the way in which the principle of distinction has been mobilized to legitimize the killing of civilians during war, rather than as a means of protecting them. More specifically, we are interested in three different aspects informing the relationship among distinction, visibility, and the ethics of violence. First, we are interested in how the introduction of new technologies has reconfigured visibility (Halpern 2015) in contemporary wars in order to expand that which is observable (Amoore 2016). Second, we are interested in how the legal principle of distinction—which originated in the humanist tradition (Dunant 2013)—currently and as a result of different technological transformations distinguishes people by detecting so-called anomalies in the relations among multiple data points within databanks and translates them into “patterns of behavior” (Dillon and Reid 2001). Not unlike the reconfiguring of the human body through its reconceptualization as a molecular entity or a genomic figure (Rose 2001), contemporary technologies of distinction re-conceptualize the human body as part of a digitized disposition matrix (Weber 2016) that is linked to specific legal figures. In other words, the constitution of the human body as a particular legal figure is predicated on the algorithmic analysis of data combined with other technological devices that deploy simultaneously both a humanist and post-humanist lens. Third, we claim that the apparatus (Agamben 2009; Foucault 1980) of distinction functions differently than apparatuses of surveillance, which aim to monitor, detect and analyze specific environments as well as produce situational awareness (Suchman 2015), and which are deployed by both corporate and security establishments (González 2015) to control contemporary social and political behaviors. By contrast, the apparatus of distinction’s strategic function is to uncover and ascertain specific human targets for military purposes. The apparatus of distinction accordingly informs military operations—before, during and after the fray—and plays a prominent role in the ethical interpretation of hostilities. These issues, we posit, are becoming ever more crucial due to the increasing “civilianization of armed conflicts” (Sassòli et al. 2011), and are vital not only for understanding how militaries fight in civilian spaces, but also for understanding the ethics of violence—the legitimization or delegitimization of the use of force. In order to investigate the nexus between the apparatus of distinction and the ethics of violence in contemporary battlefields, we examine how the apparatus applies both to already existing legal figures such as human shields as well as how it helps to produce new figures such as “enemies killed in action” (EKIA). Human shielding refers to the illegal use of civilians as shields in order to render combatants or military sites immune from attacks (Pilloud et al. 1987), while enemies killed in action refers to people who were killed by US drones but were not the intended targets of the attacks (Scahill et al. 2015). These categories hinge precisely on new forms of distinction and visibility, and, as we will argue, interrogating them enables us to reveal the axes through which the ethics of violence is forged. The deployment of both legal figures is linked to the increasing transformation of civilian spaces into theatres of battle, and the widespread claim among scholars and militaries that traditional distinctions are put to test in these spaces. © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. Distinction and the Ethics of Violence 1387 In this context, human shields serve as a particularly illuminating case for our investigation of the way that violence is interpreted as ethical because they represent a relatively ambiguous figure within international law. As we demonstrate below, the human shield is by definition a civilian whose status as a civilian is simultaneously assumed only to be disavowed (Gordon and Perugini 2017). This disavowing does not transform the shield into a combatant, but rather converts him/her into a liminal being. Indeed, human shields are people who are constituted as liminal both physically and legally, inhabiting a threshold between civilians and combatants. According to Victor Turner (1969:95), the “attributes of liminality or liminal personae (‘threshold people’) are necessarily ambiguous since this condition and these persons elude or slip through the network of classifications that normally locate states and positions in cultural space”. Liminal entities, Turner explains, “are neither here nor there; they are betwixt and between the positions assigned and arrayed by law, custom, convention, and ceremonial”. If, for Turner, analyzing the notion of liminality is a way to understand social orders in non-Western societies, we analyze how the liminal is constructed in contemporary liberal societies to make sense of the order of violence in international law —namely, how the construction of liminal subjects and spaces shapes the legality of violence in war. Indeed, human shields become threshold figures the moment their bodies are framed as occupying a space between the attacking forces and their targets. Thus, civilians are cast as human shields when they occupy an intermediate spatial position within the fray. One has only to think of civilians standing on the roof of a building targeted for attack. It is precisely this in-between position that dramatically changes their legal status, denying them basic protections offered to civilians by international law. From this point of view, this article also aims to contribute to our understanding of a major transformation taking place within international law–namely the evisceration of one of its foundational figures, the civilian. This evisceration is carried out through the re-articulation of existing legal figures or the production of new ones and is used to justify the deployment of violence by militaries operating at the behest of liberal countries. We begin our exploration of the eroding category of civilian by showing how distinction—whose ostensible objective is to determine relationships between civilian and military elements in the space where hostilities are taking place—is used not only to provide a descriptive account of the battlefield or normative prescription, but is also a force capable of producing new legal figures (such as EKIA) and spaces, and of ascribing an existing legal figure of international law (such as human shields) to people in the battlefield. We continue by examining how military operations are framed in the battlefield and how distinction is applied through the development of a multifaceted apparatus of computational techniques—the “apparatus of distinction”. Finally, we examine two examples—“enemy killed in action” and human shield—to show how the force of distinction is deployed by liberal militaries to produce liminal legal figures, all of which simultaneously assume and disavow the civilian status of people and architectural edifices in contemporary wars. This article thus hopes to provide yet another piece in the puzzle that lays bare how the ethics of violence is currently © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. 1388 Antipode being construed during warfare. Judith Butler (2009:5) maintains that the epistemic operations through which war is framed construct the way people “apprehend or, indeed, fail to apprehend the lives of others as lost or injured”, and ultimately determine whose life is grievable. While invoking Butler’s notion of frame, we focus on the way some human subjects are currently being reconstructed in the context of contemporary warfare as liminal legal figures, showing how this helps provide ethical justification for the use of lethal force against them. The Civilianization of Armed Conflict and Battlespaces Legal scholars have long assumed that a civilian may convert him or herself into a combatant, and vice versa. As Yoram Dinstein (2003:152) puts it: every combatant is a former civilian: nobody is born a combatant. In the same vein, a combatant may retire and become a civilian. But a person cannot (and is not allowed to) be both a combatant and a civilian at the same time, nor can he constantly shift from one status to the other. International law is thus predicated on a binary and does not formally contemplate the possibility of liminal categories of people who do not fit into one of the two legal classes (Henckaerts et al. 2005). This, then, is one of the reasons why military and legal experts have claimed that contemporary insurgents frequently ignore the ethics of distinction (Dunlap 2010; Reynolds 2005). They do not wear military uniforms and deliberately conceal their identity, thus rendering it difficult for liberal armies to distinguish them from civilians. Michael Gross (2015), for example, has defined this practice as an “ethics of insurgency”, claiming that insurgents adopt a deliberate strategy of violating the laws of war against technologically and morally superior armies in order to push the latter to commit war crimes. These scholars emphasize the increasing “civilianization of armed conflicts” and its detrimental repercussions on what the International Committee of the Red Cross calls the “axiom” of distinction (Sassòli et al. 2011). The civilianization of armed conflict—whereby civilians and civilian objects become an integral part of the fighting—is the outcome of many factors. These include the decline of inter-state wars and the increase of intra-state armed conflict (Sarkees and Schafer 2000); the dismantlement or partial dismantlement of states, leading to the breakdown of state institutions and the emergence of new armed groups; the urbanization of warfare, with the increasing transformation of many cities and towns into battlefields (Graham 2011); the vast asymmetry of many current conflicts (Fabre 2012; Sorabji and Rodin 2006); the dwindling role of the geographical terrain’s protective function; and the growing role of civilians in high-technology warfare and the pervasiveness of civilian agencies in conflicts (Wenger and Mason 2008). All of these factors have led to a dramatic upsurge in the overlapping between combatants and civilians within contemporary theatres of political violence and to important transformations in the legal conceptualization of the battlefield. More specifically, these changes have rendered the traditional threshold between IHL’s two axiomatic figures—the combatant and the noncombatant—even more ambiguous than in the past (Gregory 2006). © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. Distinction and the Ethics of Violence 1389 Consequently, prominent scholars have stressed the need for militaries to update their conception of contemporary wars and for legal experts to modernize the laws of war (Schmitt 2010b). Some argue that the old notion of battlefield is becoming obsolete and should be substituted by battlespace. “The spatial logic of violence, long dominated by the inside/outside dichotomisation of the Cold War, has”, as Caroline Croser (2007) reminds us, “been expanded to include the more fluid, eventful, and relational logic of contingency, particularly as expressed in the figure of the network”. Battlespace is consequently used to describe situations where “regular armed forces seem to be a minority” and “there are many different actors” among whom it becomes extremely difficult to draw a distinctive line according to IHL’s axiomatic classes of civilian and combatant (Garraway 2011:178; see also Graham 2009; Gregory 2011). Thus, for these experts, the notion of battlespace further articulates the inaccuracy of describing the space in which hostilities are taking place according to the old schemes of modern warfare, as if clearly defined borders between military and civilian fields continue to characterize war. Accordingly, the institutional military logic is also being converted from a linear hierarchical model to a model that is more similar to a network (Niva 2013). This shift has two major implications for the laws of war. First, and key to our examination of the apparatus of distinction, the blurring of traditional military lines translates into the blurring of the lines of distinction between civilians and combatants. Indeed, there is an intricate link between the shift in the interpretation of the terrain from battlefield to battlespace and the discursive production of new legal figures that are more ambiguous. As we show in our analysis of the 2014 Gaza War, this link is two directional: the changing conception of space not only engenders the production of new legal figures (EKIA) or the rearticulating of existing ones (human shields), but these legal figures alter the signification of space. Second, IHL specialists dealing with the historical transformations of warfare and international law (Garraway 2011; Sassòli et al. 2011) have argued that if uniforms, different kinds of emblems, or the location of a person in relation to the fray could help distinguish between a civilian and combatant, with the civilianization of armed conflicts the civilian–combatant dichotomy is less stable. As one official report puts it: “Enemy leaders look like everyone else. Enemy combatants look like everyone else. Enemy vehicles look like civilian vehicles. Enemy installations look like civilian installations: schools, mosques, hospitals, factories. Enemy equipment and materials look like civilian equipment and material” (Fields and Odeen 2004). The blurring between the two legal classes has spurred the production of new technologies whose role is to identify and produce new kinds of distinctions in the changing contexts of warfare, while the ability to subject contemporary violence to legal scrutiny is, in turn, dependent on the development of new legal categories. One of the solutions offered by the United States Department of Defense (Fields and Odeen 2004) and several legal experts (Schmitt 2005) is to put more emphasis on “participation in hostilities”, a phrase that refers to actions through which noncombatants become involved in war. The actor’s clothes and emblems become less important, while what the actor does and the kind of relations s/he has with other human beings, the surrounding environment, and what IHL defines as legitimate military targets becomes vital. © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. 1390 Antipode Participation in hostilities is based on the idea that a person’s actions can either completely convert a civilian into a combatant (thus maintaining the traditional binary on which IHL distinctions are founded) or alternatively position the person in a threshold location—like human shields—between civilian and combatant (which jeopardizes the binary). The US Department of Defense (DOD) goes further, however, explaining just how difficult the challenge of making distinctions is, particularly given the realization that “people, things, and activities that DOD screens will likely not be either all good or all bad, nor static in their character or relationship to the United States” (Fields and Odeen 2004:156). Considering that the precise status of people, sites and activities vis-à-vis international law is increasingly unclear, more people (as well as sites and activities) occupy a threshold position. Distinction is consequently no longer predicated upon immutable legal categories, and becomes a much more malleable (Schmitt 2010a), liminal, and, as we show below, potentially lethal force. The Apparatus of Distinction The changing dynamics of warfare and the emergence of new interconnected concepts that are becoming crucial for developing the liberal ethics of violence— such as the “civilianization of armed conflict”, “battlespaces”, and “participation in hostilities”—are informed by the development of new technological capacities that aim to overcome the endemic lack of distinction characterizing contemporary theatres of violence. In the recent US war in Afghanistan, for instance, where, according to Michael Schmitt (2009:313), guerrilla groups were scattered and “wore no uniforms or other distinctive clothing that allowed immediate visual identification”, militaries began deploying “dynamic targeting” or targeting “on the move”. Schmitt explains that in non-linear battlespaces such as Afghanistan, “operations had to be conducted over vast areas in which the mere position of a group, vehicle or other mobile target seldom served as a reliable indicator of its enemy character”. As we will see in the next sections, when it is difficult to draw distinctions between civilians and combatants, and when traditional instruments of identification are not effective, new technological devices and epistemic operations are introduced in order to show that the killing was carried out in accordance with international law. Historically, distinction was primarily based on visual devices such as binoculars and cameras utilized to determine a series of relations—the relations of the people in the battlefield to the architectural structures and other human subjects within and outside the image’s frame as well as the movements and actions of the people in the frame and of those around them. Increasingly, however, such devices and the images they generate are no longer sufficient to make distinctions within battlespaces among those who participate in hostilities and those who do not. Accordingly, new technological devices and epistemic operations have been introduced, including the development of systems for analyzing big data in order to identify targets. These new technologies are meant to demonstrate that in spite of a foggy situation considerable effort was made to distinguish between different legal figures. © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. Distinction and the Ethics of Violence 1391 Following Foucault’s (1980) notion of dispositif, we understand these new technologies and epistemic operations as part of an apparatus of distinction, which denotes an array of interrelated forces that frame, shape, produce, construe and thus give meaning to the relationship among the actors within the battlespace. The apparatus of distinction operates within the existing “relations, mechanisms, and ‘plays’ of power” (Agamben 2009:6, 14; see also Legg 2011), and is made up of a variety of institutions and actors—such as government and security agencies, think tanks, NGOs, and media outlets, which employ legal and security experts, lobbyists, data analysts, statisticians, computer scientists, film directors, editors and producers, graphic designers, animation artists and copywriters—that put to use different technologies to distinguish among different legal figures in battlespaces.1 Satellite images, lasers, infrared sensors, GPS, GIS, aerial photos and videos, and acoustic vector systems are part of an apparatus that not only renders perceptible “that which would otherwise be beyond the threshold of human observation” (Amoore 2016), but also reshapes the sensory experience of the human subject and of war itself (Gusterson 2016:6). The apparatus of distinction has a unique strategic function. While the apparatus of surveillance uses big data to disclose information on particular “environments” in order to create, inter alia, “situational awareness” (Suchman 2015), the apparatus of distinction’s purpose is to distinguish among actors in the battlespace in order to produce “human targets”. It goes beyond programs such as the Worldwide Integrated Crisis Early Warning System designed to predict international crises, ethnic violence, rebellions, and insurgencies, and is more aligned to MIT’s Human Dynamics Laboratory that has developed technologies such as reality mining, which uses mobile phone data to extract patterns that predict future human behavior (González 2015). This kind of technology enables the different security agencies to track human subjects, classify them on the basis of digitized behaviors, and distinguish between killable targets and unkillable subjects. If in the past distinction operated by visually distinguishing among different people in space, currently the perceptibility of the actor is attained by a variety of technologies that aim to overcome the difficulty of making distinctions among people within space. The perceptibility of a target is frequently produced by aggregating multiple data points in an attempt to track anomalies. This part of the apparatus reflects the post-humanist turn (Rose 2001), whereby the target appears as digitized information produced by algorithmic relations among data points, and is no longer perceived as a mere body. Even infrared sensors are part of this post-humanist gaze: the target is determined by the level of electromagnetic waves it transmits. The digitized information or electromagnetic waves are then linked to a body that becomes a target. Moreover, the apparatus of distinction is a productive force. Jacques Derrida helps explain this claim when he describes the authority of the law as the combination of the norm and the violence through which the norm is exerted. He notes that the “word ‘enforceability’ reminds us that there is no such a thing as law that doesn’t imply, in itself, a priori, in the analytic structure of its concept, the possibility of being ‘enforced’, applied by force” (Derrida 2002:925). Not unlike Derrida’s law, IHL is dependent on violence for its enforceability. However, in © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. 1392 Antipode addition, when IHL is applied to bodies and spaces whose status is considered uncertain, it is also dependent on another element in order to become functional: the apparatus of distinction. The capacity to distinguish among different legal figures is the condition of possibility of the “correct” application of international law, and thus of rendering international law enforceable. Utilized by different actors who deploy a variety of technologies, the apparatus helps determine the relations of people and objects within the frame and in this way assists the military forces to deploy violence in a way that guarantees the principled application of IHL. Put differently, the legality or illegality of an attack that is claimed to be discriminate— and thus ethical—is construed through a variety of operations that in effect frame the event. As we will show, the framing process is used not only to construct a series of distinctions, but also to frame the enemy as the unethical actor that does not distinguish. If, as Butler (2009:10) notes, “one is ‘framed’, then a ‘frame’ is constructed around one’s deed such that one’s guilty status becomes the viewer’s inevitable conclusion. Some way of organizing and presenting a deed leads to an interpretive conclusion about the deed itself”. Hence, the apparatus is used to ascribe the violation of the laws of war by the enemy. And yet, as we just mentioned, distinction is also a force in another sense. In addition to having a descriptive/interpretive capacity that enables militaries to determine when to apply and enforce the law, it is also a creative force. In this sense, it not only directs the application of the law—its enforceability—but can help forge new legal figures, rearticulate the meaning of existing ones, and structure acts of war before the fighting begins. Consequently, the framing carried out by the apparatus of distinction should not be understood, as Judith Butler (2009, 2015) reminds us, as the neutral description or a belated neutral arbiter of a conflict that has already taken place but as a mechanism that selectively carves up “experience as essential to the conduct of war”. The claim, for example, that ISIS is using tens of thousands of human shields in Mosul not only frames the Iraqi civilians of this city as shields and ISIS as the actor responsible for their lives, but the invocation of this legal figure even before the fighting began also served to legitimate in advance the repertoires of violence that the militaries attacking Mosul can use (Gordon and Perugini 2017). Finally, this apparatus, we maintain, following Bruce Braun’s (2007:14) claim about the operations of biosecurity, has been instituted in order to expand the possibility of preemptive violence and preemptive legal defense “in ways that extend forms of sovereign power” to completely news spaces. Civilian Liminalities In order to understand how the apparatus of distinction operates, how it frames the meaning of violence in battlespaces while configuring the ethical significance of lethal force, we now turn to analyze two different cases: US drone attacks in Pakistan and Israel’s 2014 war in Gaza. These cases highlight three major points. First, they illustrate how the apparatus of distinction functions and the way it constructs and frames that which is rendered perceptible. Second, the cases show how—in the era of the civilianization of armed conflicts—the apparatus of distinction © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. Distinction and the Ethics of Violence 1393 produces liminal legal figures and spaces and thus helps eviscerate the notion of civilian while reconfiguring civilian spaces into battlespaces. Finally, the cases demonstrate how the apparatus has become one of the key instruments in producing the contemporary ethics of violence (Whitehead and Finnström 2013). Liminality 1: “Enemy Killed in Action” or Distinction Post Mortem The relatively recent appearance of “cubicle warriors” controlling planes several thousand miles from the battlespace, using what some have called a “PlayStation mentality” (Sharkey 2011), is just one aspect of the “predator empire” (Shaw 2013). As the Drone Papers (Scahill et al. 2015) make clear, the capacity to distinguish between different legal figures in these battlespaces is increasingly dependent on data gathered from mobile phones, emails, social media, and video feeds. Collected by an array of government agencies (and corporate actors), this vast amount of digitized data is subjected to numerous algorithms (González 2015; McQuillan 2015), which are then “stored in electronic targeting folders” (Shaw and Akhter 2014). By analyzing associations and interactions within the collected digital data, the algorithms produce maps depicting relationships among people, places and things in order to develop a so-called “pattern of life” that is considered co-extensive with the life of a terrorist (Dillon and Reid 2001). In other words, what the algorithm identifies is a pattern of behavior that security analysts believe coincides with “terrorist behavior”. Significantly: it is not only senior leaders of a “terrorist” group who are regarded as valid objects for targeted assassination but anybody who is identified (by an algorithm or an analyst) as being vital to the group—according to their strategic position in the network (Weber 2016). Currently, within the Terrorist Screening Database managed by the FBI, there are between 680,000 and 875,000 “known or suspected terrorists”. This list is shared with a variety of law enforcement agencies, private contractors, and foreign governments (de Goede 2013; Scahill and Devereaux 2014; Weber 2016), and is used both to extend sovereign power (Braun 2007) and to justify new forms of violence (Shaw 2013). Several scholars have claimed that drone warfare is transforming the logic of state violence (e.g. Chamayou 2015; Gregory 2011), and that the mechanisms through which it is framed as ethical are changing not only due to the use of unmanned vehicles per se, but also because human decision-making—and in our case distinction decision-making, and the ethical claims which follow—is increasingly relying on the algorithmic computations of data (McQuillan 2015; Weber 2016) and other information technologies used to identify human targets. According to the Drone Papers, once a person is on the target list, electronic signals are used to follow the person and to produce the US Army “Geolocation-Watchlist” (see Figure 1) of targets (Scahill et al. 2015). The Army uses the orientalist code name “Gilgamesh” for its geolocation targeting system. This device is attached to a drone and as the unmanned aerial vehicle circles in the air, the device locates the suspect’s © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. 1394 Antipode Figure 1: The Geolocation Watchlist, which presents the location of sim card signals (source: the Drone Papers [Scahill et al. 2015]; used here with permission) [Colour figure can be viewed at wileyonlinelibrary.com] sim card. This suggests that while data are used to distinguish among people and determine the suspects, it is also data (in some cases sim cards) rather than people that are targeted (on the use of surveillance and data for social sorting, see Lyon 2003). Indeed, drones target digitized data but they kill people. The enemies are simultaneously both virtual and human (Robben 2013). The geolocation system is merely one example of how the principle of distinction has increasingly been subjected to a series of computational mechanisms designed to produce clarity in the midst of war. But the drone wars are also a concrete manifestation of how the transformation of visibility—from humanist strategies aimed at identifying a face or the possession of arms in material space to posthumanist analysis of data located in a cloud (Amoore 2016) that is subjected to algorithms aimed at tracking anomalies which identify “patterns of life”—leads to the killing of civilians. This shift to algorithms that are “outside” material space and yet “belong” to it have, according to Dan McQuillan (2015:569), “the potential to create social consequences that are unaddressed in law”. McQuillan (2015:573) further maintains that the new “algorithmic apparatus can be characterized by the production of states of exception. The result is an increase in actions that have the force of the law but lie outside the zone of legal determination”. In a similar vein, we contend that the apparatus of distinction, which was put into place in order to overcome the fog of war, actually helps produce liminality and justify the use © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. Distinction and the Ethics of Violence 1395 of violence. The existing estimates on the exact amount of civilians killed as a result of drone warfare are vague, but Noel Sharkey (2011) contends that the actual percentage of “terrorist leaders” killed in the attacks is less than 5% of the total number of people killed. Along similar lines, the Drone Papers suggest that US targeting is structurally accompanied by significant “collateral damage”, claiming that between six and nine of every ten people killed were not targeted. Indeed, as several drone operators confirmed, the kind of operations in which they are involved imply the possibility of harming the “wrong people” (Scahill and Greenwald 2015). The Geolocation Watchlist is actually a “depiction” of targets, but we can readily think of a scenario in which a sim card enters the target list because it behaves according to or only slightly differently from the algorithm that characterizes the “pattern of life” of a “terrorist”. While the UN and various international human rights NGOs have called for investigations into US drone targeting due to the high civilian casualty rates over the last years (Emmerson 2014), the military’s legal department has been working on redefining its collateral damage protocol by producing a new liminal legal figure. In fact, the 60–90% of “unintended” drone casualties have been legally reclassified as “enemies killed in action” or EKIA. This opaque class of persons does not officially exist in international law, but military lawyers have been forging this term in an attempt to inscribe it into the recent IHL debate on the participation in hostilities and civilianization of armed conflicts. To be sure, the lawyers have to introduce a form of temporal acrobatics in order to assert this new legal class, since only after being killed are the civilians categorized as EKIA, namely, as legitimate targets. Distinction is now applied post mortem. Liminality 2: Gaza Wars and Human Shields According to data gathered by the UN, over 2251 Palestinians were killed during Israel’s 2014 military campaign “Protective Edge” in Gaza. Of the verified cases, 1462 are believed to be civilians. On the Israeli side, 73 people were killed during the war, 67 combatants and 6 civilians (Human Rights Council 2015). These figures already point to a clear discrepancy with respect to the number and proportion of civilian deaths: 65% of all those killed by Israel were civilians compared with the 8.2% of civilians killed by Palestinians. As the figures highlight, precision, pinpoint strikes and surgical capabilities can neither predict nor guarantee discrimination. It is precisely within this context—namely, the lack of distinction—that we need to understand the prominent place the legal phrase human shield assumed during and after the 2014 Gaza war (Gordon and Perugini 2016). Legal experts generally refer to three types of human shields: voluntary, involuntary and proximate (Ezzo and Guiora 2009). According to Banu Bargu, the figure of the voluntary human shield refers to a civilian who willingly decides to protect a military target using his or her body to achieve deterrence by invoking a certain moral sensibility among attackers and spectators. Voluntary human shields are often activists who travel to conflict zones in order to politically intervene against organized violence by situating themselves in high-value target areas while risking their lives in an effort to deter attacks (Bargu 2013, 2017). An involuntary shield is a civilian who is forced © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. 1396 Antipode by soldiers or militants to serve as a buffer between them and their enemies (Perugini and Gordon 2015). Finally, proximate shields refer to civilians situated in the midst of a conflict zone and whose mere presence can serve to transform them into shields for one of the fighting parties (Ezzo and Guiora 2009). A LexisNexis search in “major publications” for the phrase “human shields” over the one-year period between 1 November 2015 and 31 October 2016 found 1221 articles, which reference seven voluntary shields, 9456 involuntary shields and 3,354,800 proximate shields.2 Hence, the number of voluntary human shields is negligible despite being discussed in 5% of the articles, involuntary shields account for 0.2% of the people who are described as shields and 22% of the articles, while over 99% of the civilians who are characterized as shields belong to the proximate category. The framing of so many civilians as proximate shields reveals something noteworthy about how the apparatus of distinction operates and how IHL is deployed in contemporary battlespaces. International law prohibits the use of human shields, and states that: The presence or movement of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations (Pilloud et al. 1987). Consequently, it becomes crucial for those deploying lethal force to be able to claim that while conducting the hostilities they can distinguish between a human shield and a person who is simply a civilian, since in the case of human shielding the test of excessive injury to civilians can be relaxed (Dinstein 2004:131). In fact, international law allows military forces to strike areas where human shielding takes place, and even kill the shields, provided this takes place in accordance with the IHL principles of proportionality and military necessity (Rogers and Malherbe 1999). The responsibility for injuring or killing civilians used or framed as shields should, in other words, be shouldered by the party that did not distinguish between combatants and civilians. Moreover, insofar as human shielding reduces the ability to discriminate, it legitimizes an increase in harm to civilians and the attacks on civilian areas by the party who is able to claim and then make visible that the enemy is the one that has civilianized the conflict. By tracing the interplay between visibility, framing and discrimination we reveal how the apparatus of distinction facilitates the transmutation of civilians into human shields, thus relaxing the rules of engagement. Examining strategies through which similar epistemic operations are carried out, Mikko Joronen (2016:340) analyzes Israel’s warning techniques aimed at informing the Palestinian population in Gaza about forthcoming attacks in civilian areas. He reveals how these techniques move the “accountability for death from the military to the bodies in the targeted civilian areas”, and in this way help justify military aggression. In a sense, Joronen’s analysis is an instantiation of the operation of the apparatus of distinction because it shows how leaflets and small bombs are used to distinguish among people in the battlespace and how this form of distinction justifies Israel’s violence. Our claim, however, adds another layer, since the apparatus of distinction is not only deployed to render lethal violence ethical, but, as we show, it also © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. Distinction and the Ethics of Violence 1397 transforms civilians into liminal figures of international law—the proximate human shield who is situated in the midst of a conflict zone—that can be more readily killed without it being a crime. It has been documented that the Israeli military fired 19,000 artillery projectiles during the war, which are referred to as “statistical weapons” in military parlance, since a strike is considered successful when the projectile hits within a certain range of the target (Gordon 2015). Yet Israel’s claim throughout the 2014 war was that it was using precise weapons and constantly distinguished between combatants and civilians, while Hamas was the one using civilians as human shields. In a series of infographics disseminated during operation Protective Edge on social media it rationalized the deaths of almost 1500 civilians (Gordon and Perugini 2016). A paradigmatic example of how Israel actually built its human shielding argument can be seen in the infograph “Why did this turn into this?” (see Figure 2), where the subtext does the speaking: houses, mosques, schools, and hospitals are legitimate targets because they are weapon depositories. The logic is straightforward: insofar as Hamas hides weapons in homes (illegitimate), Israel can bomb them as if they were (legitimate) military targets. Within this semiotic warfare about the meaning of architectural structures, a single function (hiding weapons) out of many existing functions (home, shelter, intimacy, etc.) determines the status of an urban site (in our case a home), so that the edifice’s form loses its traditional social signification, including its attribute as a space of protection. The transformation of the space’s signification is crucial, since it also transforms the meaning ascribed to the human. Figure 2: Why did this turn into this? (source: Israel Defense Forces; https://www.idfblog. com [CC BY-SA 2.0]) [Colour figure can be viewed at wileyonlinelibrary.com] © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. 1398 Antipode Israel’s ongoing refrain, which was voiced both in mainstream news media and in social media during and after the offensive, is that Hamas was responsible for the extensive killing of Palestinian civilians because it deliberately used them as shields. In his first appearance at the UN after the military campaign, Prime Minister Benjamin Netanyahu repeated the accusation that Hamas bears responsibility for attacks carried out by Israel. In order to justify the large amount of civilian deaths and the destruction of civilian buildings and infrastructures to his international audience, he waved a picture of children playing in the vicinity of a rocket launcher, and averred that “Hamas deliberately placed its rockets where Palestinian children live and play”. This example, like almost all of the others provided by Israel, was of proximate human shields. In it the civilian status of the human shield is assumed, but immediately classified as liminal and therefore disavowed, thus rendering him or her killable. It is within the context of Israel’s attempt to justify the deaths of so many Palestinian civilians by using the human shielding argument that we need to understand the video clips distributed by the IDF during operation “Protective Edge”. The clips present the apparatus of distinction and use it to show international audiences that Israel abided by the principle of distinction while the Palestinians did not. “Targeting the Enemy: The IDF’s Anti-Terror Strategy in Gaza” was released by the IDF two weeks after the beginning of Protective Edge, when an international outcry against the military operation emerged as a result of the rise of Palestinian civilian casualties. This video (see Figure 3)—like a series of others disseminated by the IDF through social media and news outlets—depicts what can be categorized as the IDF’s laboratory of distinction. The viewers are introduced to the apparatus of distinction and are shown how an array of experts from different branches of the military and security services deploy various systems of knowledge while utilizing numerous forms of imaging and surveillance in order to map and frame the battlefield; they develop different algorithms and calculations to guarantee “accurate targeting” and ensure precision. In it, fighting in Gaza is represented through an array of imaging techniques which aim to shape the views of different audiences about the meaning of the violence deployed during a military campaign. The humanist logic that is interested in distinction among human subjects is closely intertwined with the post-humanist conception of humans as reducible to digitized data. The clip suggests that the apparatus of distinction has a threefold function: it is used to gather intelligence through surveillance and reconnaissance, it directs the deployment of violence during the fighting, and it interprets the meaning of violence before, during and after the fighting so as to claim that violence was utilized in accordance with international law and is consequently ethical. It does all this by utilizing a complex visual grammar that both describes the force of distinction and how it plays a major role within the semiotic warfare between Israel and Palestine. An authoritative voice tells the viewers about the “flying camel squadron” and “aerial reconnaissance pilots” who fly over Gaza on a regular basis. The viewer is exposed to a command center that controls the fighting and finds out that combat units constantly consult with military lawyers to ensure that their actions do not breach international law. The military, the viewer is told, also collects information © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. Distinction and the Ethics of Violence 1399 Figure 3: The Laboratory of Discrimination (source: Israel Defense Forces; https://www. youtube.com/watch?v=j16xIxZdqgg [CC BY-SA 2.0]) [Colour figure can be viewed at wileyonlinelibrary.com] from international organizations working in Gaza. The role of the apparatus is to identify targets (see Figure 4), calculate their proximity to civilian structures and direct the combatants in the midst of the fighting. Its objective is to ensure that Israel abides by the principle of distinction. The video then goes on to show the impact of the apparatus on the fighting, claiming that at times operations are cancelled due to the likelihood of extensive collateral damage. At one point the video provides footage of how the IDF aborted an air strike, explaining that it did so because civilians were in the target’s vicinity. Paradoxically, the decision to cancel the attack demonstrates our point about the productive force of distinction and its relation to the deployment of legitimate violence. Precisely in those cases where the force of distinction upheld the civilian status of Palestinian civilians, they were spared from lethal targeting. Showing that it upholds the distinction in certain cases serves to reinforce Israel’s claims that it did not target civilians, and that those civilians who were killed were in fact human shields. In a context of widespread civilian casualties and destruction of civilian edifices—as the UN figures on the Gaza war show—the IDF apparatus of distinction uses the cases where it aborted strikes as evidence of its observance of international law. In a second video released during operation Protective Edge, the IDF Film Unit represents human shielding as a product of the force of distinction. Here human shielding is framed as the embodiment of a dialectical relation © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. 1400 Antipode Figure 4: The Laboratory of Discrimination (source: Israel Defense Forces; https://www. youtube.com/watch?v=j16xIxZdqgg [CC BY-SA 2.0]) [Colour figure can be viewed at wileyonlinelibrary.com] between distinction and indistinction. The force of distinction manifests itself in this instance through the act of “tapping” the roof of the building (Joronen 2016). There is an apartment building in Gaza with many Palestinian civilians in it. The moment the roof is tapped by a small bomb—a warning technology that does not kill—anyone who stays in the building is transformed into a human shield since the tapping classifies the apartment building as a military target. Those civilians who stay in the building or climb on the roof are thus framed as resisting the IDF’s effort to discriminate. By so doing Palestinian civilians actively undermine the threshold between civilians and human shields, they themselves are the ones who produce the lack of distinction. The logic is straightforward: the IDF discriminates—by tapping rooftops so as to designate a military target—and the Palestinians undo the distinction by not leaving the building. What this, in turn, demonstrates is that the apparatus of distinction allows the powerful to manipulate the very boundaries of the category itself. In this instance, the force of distinction accomplishes several objectives simultaneously. The tapping represents the productive capacity of the apparatus of distinction since it transforms those who remain in the building into human shields; the video frames them as unwilling to abide by the rules of discrimination; it thus produces an ethical asymmetry between actors who can and cannot discriminate. In sharp contrast to the message conveyed in the infographics, whereby violence deployed against liminal beings and spaces is considered legitimate, in this video clip we see how the force of distinction produces liminality and then aborts the © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. Distinction and the Ethics of Violence 1401 operation. The decision to cancel the attack assumes an ethical valance precisely because the people who were spared were framed as human shields, and not as civilians. Even though they were killable, the IDF decided to spare them, claiming, as it were, its ethical superiority. Conclusion Pierre Bourdieu (1986:838) has argued that: law is the quintessential form of the symbolic power of naming that creates the things named, and creates social groups in particular. It confers upon the reality which arises from its classificatory operations the maximum permanence that any social entity has the power to confer upon another, the permanence which we attribute to objects. Both EKIA and human shields are groups of this kind, produced and named by the legal principle of distinction and its symbolic power. In this sense, we follow Bourdieu. Yet, by showing that the apparatus of distinction constitutes—through a broad array of technological and epistemic operations at the border between the human and the post-human—liminal groups with ambiguous legal boundaries, rather than merely reinforcing well-defined legal classifications, we introduced a counter-intuitive claim whereby distinction can be deployed to produce threshold figures. Distinction, in this sense, derives its lethal capacity from destabilizing the boundaries of an existing legal figure—civilian—and creating malleable figures of targetable subjects and spaces, thus contributing to the evisceration of the civilian. As we stressed at the outset, the human shield is by definition a civilian—rather than a combatant—whose status as a civilian is simultaneously assumed only to be disavowed. Put differently, according to IHL, only a civilian can be a human shield, but anyone who is classified as a human shield loses his or her status as a civilian, suggesting that a human shield is simultaneously both a civilian and a non-civilian. A similar argument can also be made about “enemy killed in action”. This is precisely how we understand Victor Turner’s claim about liminality. Turner argues that “liminality is frequently likened to death, to being in the womb, to invisibility, to darkness, to bisexuality, to the wilderness, and to an eclipse of the sun or moon” (Turner 1969:95). He adds that in the process whereby liminality is constructed, “the opposites, as it were, constitute one another and are mutually indispensable” (Turner 1969:97). In our case too, both civilian and combatant are also indispensable categories for constituting the human shield. But while for Turner the liminal personae serves as a temporal in-between that undergoes a social or political transition from one category to another, the human shield does not pass from the status of civilian to combatant. Rather, it remains a threshold figure of law—neither civilian nor combatant—who loses the traditional protections offered to civilians, while not obtaining those offered to combatants. The production of these liminal legal figures has to be understood in the framework of the shift from battlefield to battlespace. The changing conception © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. 1402 Antipode of the space of war from one informed by lines and borders into a smooth space characterized by a rhizomatic assemblage of human and non-human elements (Deleuze and Guattari 1986, 1988) has spurred new technological and operational techniques, transforming the way in which international law is applied to contemporary conflicts. Although we might think that the reclassification of civilian subjects and spaces as legitimate targets of lethal violence is an exception to the norm and is carried out in order to preserve the equilibrium between the two axiomatic poles in international law, such an inference would be profoundly misleading. The increasing technological investments and epistemic operations devoted to the identification and constitution of liminal figures within theatres of war alongside the extensive legal and military analysis devoted to such figures point to the fact that liminality is rapidly being produced as part of the norm within these theatres. Moreover, the monopoly over the force of distinction provides liberal militaries the power to classify thresholds and systematically put this classification at the service of lethal violence. Indeed, liminality, as we have shown, has become a crucial legal category for liberal militaries, precisely since it allows them to carry out indiscriminate violence and do so while maintaining their selfimage of moral superiority. Therefore, the proliferation of liminal subjects and spaces in our contemporary moment necessitates a critical analysis in order to reveal how the construction of threshold categories shapes the liberal order of violence and the distinctions that legitimize it. No less striking, we believe, is the connection we strove to draw between liminality and the post-humanist production of new legal figures that are derived from “anomalies” in the relations among multiple data points. A further line of inquiry would be to examine the relationship between this transmutation of the human subject to a disposition matrix and the actual repertoires of violence that are deployed. A connection appears to exist between the “de-territorialized space of informatics, databases and the Internet” (King 2002; see also Amoore 2016) and the increasing extension of sovereign violence to geographical areas and human bodies that in the past were colonized. It is not coincidental, we think, that Gaza and a number of ex-colonies in the Middle East are the primary laboratory where the apparatus of distinction is being deployed, framing those who after decolonization acquired civilian status as liminal beings. From this point of view, following Achille Mbembe (2003:39), the apparatus of distinction should ultimately be considered to be a force facilitating the use of lethal sovereign violence, thus underscoring how the apparatus itself constitutes a form of necropower—a power of death through the evisceration of the civilian. Acknowledgements The authors would like to acknowledge equal contribution. They would like to thank the journal’s anonymous reviewers as well as Catherine Rottenberg for their helpful comments. Nicola Perugini acknowledges the support of the funding from the European Union’s Horizon 2020 research and Innovation programme-MSCA-IF-2015-703225. Neve Gordon acknowledges the support of the Leverhulme Trust. The article reflects only the authors’ views. © 2017 The Author. Antipode © 2017 Antipode Foundation Ltd. Distinction and the Ethics of Violence 1403 Endnotes 1 In this article, we follow Agamben in his interpretation of the Foucauldian notion of dispositif. However, we do not understand human shields and EKIA as homines sacri. The justification for targeting these people is not carried out by positing them as if they were outside the law or by framing them as exceptional social beings. Rather, we claim that international law itself operates to transform them into liminal subjects, civilians who are rendered killable. Indeed, civilians in contemporary conflicts are converted into liminal and killable beings through the application of the principle of distinction, which, at least ostensibly, was introduced to ensure the protection of civilians. 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