2.1 The AP I Rule

As codified in Article 48 of AP I, the principle of distinction requires parties to the conflict to distinguish between the civilian population and combatants, as well as between civilian objects and military objectives.^{Footnote 6} This rule offers protection to civilians and civilian objects, while opening up combatants and military objectives to attack.^{Footnote 7} At the same time as the principle of distinction was codified, the civilian was defined in IHL for the first time.Footnote ⁸ Under Article 50, the civilian is defined in a negative manner as anyone who is not a combatant.^{Footnote 9} This residual definition treats the civilian figure as something of an afterthought.^{Footnote 10} It can be gleaned from AP I that a civilian will generally not wear a uniform, not carry a weapon and not participate in hostilities, but IHL offers no definitive visual markers or features to confirm civilian identity.^{Footnote 11} While IHL imposes clear reciprocal duties to uphold distinction on those engaged in fighting, the responsibilities of civilians in this respect are only implied.Footnote ¹²

According to the International Committee of the Red Cross (ICRC) Commentaries to the APs, the negative definition of the civilian is intentional.^{Footnote 13} This formulation is designed to expand the breadth of protection, espousing benefits of comprehensiveness, inclusiveness and clarity.^{Footnote 14} As every individual is supposed to fall into one of the two categories (and not both),^{Footnote 15} there should be no ‘undistributed middle’ between the civilian and combatant categories.^{Footnote 16} As will now be demonstrated, however, the promised clarity of the AP I definition ultimately proves to be a mirage. The notion of a bright line binary recedes from view as soon as one looks more closely at the principle of distinction and related IHL rules – never mind actual practice on the ground.

2.2 Uncovering distinction’s instability

Scholars inside and outside of the legal academy have begun to expose distinction’s contradictions. Helen Kinsella argues that the dominant narrative of the principle of distinction projects a misleading prototype onto the past: it positions the combatant and civilian in some kind of stable, inevitable and well-defined opposition to one another.Footnote ¹⁷ When observers lament the blurring of the distinction in contemporary conflict, Kinsella argues, they buy into this dominant narrative.Footnote ¹⁸ This overlooks the manner in which IHL generates and produces the subjects it claims to protect.Footnote ¹⁹ Amanda Alexander emphasizes that the civilian is a relatively recent legal invention,Footnote ²⁰ and demonstrates that civilian protections codified in the APs are not so sweeping as they first appeared.^{Footnote 21} As Frédéric Mégret shows in his excavation of the combatant category, certain fighters – today’s ‘unlawful combatant’ and yesterday’s ‘savage’ – are also placed outside of IHL’s protective framework. IHL’s protections are thus ‘… gained by denial of an “other” – an “other” that is both a figure excluded from the various categories of protection, and an elaborate metaphor of what the laws of war do not want to be’.Footnote ²² Mégret further suggests that IHL’s traditional paradigm of warfare indulges a ‘fantasy of sameness’: two opposing armies face each other on the battlefield, each in uniform and bearing arms.Footnote ²³ This notion of an IHL fantasy will be revisited in Section 3 of the article.

However provocative these perspectives might appear, what is arguably more striking are the efforts made by international lawyers and protection advocates to conceal distinction’s disorder. Nathanial Berman contends that ICRC lawyers make (futile, counterproductive) decrees about ‘the rigorous difference between combatants and civilians’ in an attempt to forestall the destabilization of the jus in bello.Footnote ²⁴ Such defences are necessary because the implementation of IHL as a body of law is routinely tied to distinction’s observance. For example, the ICRC Commentary on the APs of 1977 refers to the principle of distinction as ‘the basis for the law of armed conflict’,Footnote ²⁵ and the International Court of Justice describes this ‘intransgressible’ principle as a ‘fundamental’ component of IHL.Footnote ²⁶

Focusing on AP I now, several rules undermine the notion of a bright line civilian-combatant distinction. Some examples include: the Article 37(1) prohibition on perfidy, which shows the capacity for authentic and simulated civilians;Footnote ²⁷ Article 44(3), which relieves fighters of the obligation to distinguish themselves in specified circumstances;Footnote ²⁸ and the Article 50(1) presumption in favour of civilian status, which incorporates into the civilian category individuals whose status is open to question.Footnote ²⁹ The most destabilizing rule of all is arguably that of direct participation in hostilities, or DPH.Footnote ³⁰ Article 51(3) of AP I contains the crucial qualification that civilians who participate in fighting may lose their immunity.Footnote ³¹ The armed/unarmed marker may serve as an indicator of civilian immunity, but it is an actor’s conduct that is decisive.Footnote ³² While international lawyers expected conversations about DPH to re-invigorate IHL in the midst of the ‘Global War on Terror’,Footnote ³³ these debates have instead highlighted distinction’s contested nature.Footnote ³⁴ This has not been resolved, and the existence of the DPH concept makes a bright-line binary distinction difficult to sustain.

In light of the above, the problem is not so much that IHL sets up the civilian as a black box. It is rather that the principle of distinction rests on ambiguity, uncertainty, and contingency. Dominant narratives of IHL somehow manage to convey precisely nothing about the civilian, while at the same time establishing a nebulous and even contradictory civilian figure. This haziness continues in the treatment of international humanitarian actors in IHL doctrine.

3.1 The treatment of the humanitarian actor in international law

IHL forms part of a larger patchwork of laws that regulate humanitarian assistance in armed conflict.Footnote ³⁶ The first issue of interest is the way in which IHL positions humanitarian actors in relation to the wider civilian category. A preliminary point is that IHL contains no category of ‘humanitarian actor’ as such.^{Footnote 37} The provision of succour to certain individuals in war formed part of the first GC in 1864, and there was passing mention of the ICRC and other actors in the GCs of 1949.^{Footnote 38} However, civilian actors delivering (what would today be called) humanitarian assistance were not explicitly addressed in IHL until the APs of 1977. Typically referring to the relevant actors as ‘relief personnel’, protections under the APs are premised upon one’s ability to deliver assistance in a manner that is humanitarian, impartial, and without adverse distinction.^{Footnote 39} This emphasis on conduct and modalities of assistance helps to explain the slipperiness of the humanitarian actor category.

According to Article 71(2) of AP I, in international armed conflicts, those engaged in war fighting are required to respect and protect humanitarian actors.Footnote ⁴⁰ International lawyers and scholars have espoused differing interpretations of this provision in recent years, specifically with respect to the way in which it positions humanitarian actors vis-à-vis the general civilian population. Larissa Fast and Claudie Barrat, respectively, read Article 71(2) as grouping humanitarian actors together with other civilians in one comprehensive civilian category.Footnote ⁴¹ This gives humanitarian actors civilian status, nothing more and nothing less. Helen Durham and Phoebe Wynn-Pope propose instead that Article 71(2) sets relief personnel apart from the general civilian population, giving humanitarian actors a ‘more substantial footing and a specific status’ than they had under the GCs.Footnote ⁴² On this logic, IHL establishes a carve-out for humanitarian actors in the same legal moment it first defines the civilian – that is, in AP I.Footnote ⁴³ Durham and Wynn-Pope’s claim that AP I gives special treatment to some humanitarian actors is persuasive, though I would emphasize that this applies to only a small subset of those who self-identify as humanitarian.Footnote ⁴⁴

A point that now merits attention is the fact that humanitarian actors, as a larger group, have often been treated differently from the general civilian population in international law more broadly. Focusing on the past two decades or so, humanitarian actors have been singled out for special treatment in official UN pronouncements and international criminal law instruments. Consider the Rome Statute of the International Criminal Court of 1998.Footnote ⁴⁵ Article 8(2)(e)(ii) of the Rome Statute prohibits intentional attacks against buildings, material, medical units, and transport systems, as well as personnel using the ‘distinctive emblems of the Geneva Conventions in conformity with international law’.^{Footnote 46} Article 8(2)(e)(iii) further prohibits intentional attacks against ‘personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission’ in accordance with the UN Charter, ‘as long as they are entitled to the protection given to civilians or civilian objects’ under IHL.^{Footnote 47} Given that the Rome Statute already deems intentional attacks against the general civilian population (and individual civilians who do not DPH) to be war crimes,^{Footnote 48} these dedicated provisions appear to treat humanitarian actors exceptionally.^{Footnote 49} This special treatment is amplified in UN pronouncements since the mid-1990s that condemn attacks on humanitarian actors as especially egregious.Footnote ⁵⁰

Cutting in the other direction, the same international criminal law provisions enumerated above include the caveat that humanitarian actors might in some instances merit something less than civilian protection. Article 8(2)(e)(iii) of the Rome Statute stipulates that, to be covered by the relevant provision, a given actor must be entitled to the protection given to civilians (or civilian objects).Footnote ⁵¹ The loss of civilian protection might occur, most obviously, if a humanitarian actor were to DPH.Footnote ⁵² As a matter of everyday practice and perception, this also speaks to humanitarian actors’ fears that their own civilianness will be tainted or downgraded.Footnote ⁵³

Peering inside the humanitarian actor category now, I contend that IHL’s protections of humanitarian actors are premised upon a very specific vision of humanitarianism.

3.2 IHL’s Red Cross fantasy

As mentioned earlier, Mégret argues that IHL projects a vision of wars being fought in a particular, Western, manner.Footnote ⁵⁴ Although fighters that do not live up to the traditional image of the combatant are now allowed to participate, IHL’s exclusion of ‘other’ combatants is ongoing.Footnote ⁵⁵ The efforts that some combatants make to conform to the traditional paradigm of warfare confirm the suggestive power of the archetype, and ensure the continued privilege of conventional combat actors.Footnote ⁵⁶ I propose that IHL projects another fantasy that shapes a different area of practice in warfare: the delivery of humanitarian assistance. IHL envisions a particular kind of humanitarian actor engaging in relief tasks, and this individual works for – or successfully approximates those who work for – the Red Cross.Footnote ⁵⁷

The special status of the ICRCFootnote ⁵⁸ has its origins in the mythical account of Henri Dunant’s experience at Solferino, where Dunant envisioned a Red Cross movement that would promote and safeguard humanitarian ideals.Footnote ⁵⁹ The Red Cross actor materialized in early IHL instruments as a twinkle in Dunant’s eye, informing the 1864 GC and securing the Red Cross figure as the touchstone of humanitarian assistance.Footnote ⁶⁰ The Red Cross actor continues as the benchmark for humanitarian relief in the GCs of 1949,Footnote ⁶¹ though, as mentioned, this instrument does not engage in any depth with the actors who deliver assistance.Footnote ⁶² While the category expands somewhat in AP I, the positioning of the Red Cross as the relief provider par excellence is an unchanging feature of IHL.

Coming back to Durham and Wynn-Pope’s suggestion that AP I situates humanitarian actors differently than members of the general civilian population, I would stress that this exceptional treatment is limited to actors who reflect the Red Cross ideal.Footnote ⁶³ Those humanitarian actors who fall outside this archetype are relegated to being another of IHL’s ‘others’.Footnote ⁶⁴ This is not to say that restricting the boundaries of the humanitarian actor category is necessarily a bad thing. Indeed, there may be sound reasons for ruling out the participation of certain kinds of players or particular modalities of assistance. The claim being advanced here is simply that many non-Red Cross actors are not legible as humanitarians in IHL. It merits emphasis that these ‘other’ humanitarians, collectively, carry out the bulk of humanitarian assistance in contemporary armed conflicts.^{Footnote 65}

The special treatment of the Red Cross emblem in IHL both emerges from, and perpetuates, the Red Cross fantasy.Footnote ⁶⁶ The emblems of ‘other’ humanitarian actors do not receive the same level of legal protection,Footnote ⁶⁷ and as Kate Mackintosh observes, this generates considerable anxiety for non-Red Cross humanitarians.^{Footnote 68} This points to a curious dynamic. While ‘other’ humanitarian actors lament the extra protections and privileges afforded to the Red Cross, many of the former also espouse a commitment to Red Cross-style principlesFootnote ⁶⁹ and subscribe to a Red Cross meta-narrative.Footnote ⁷⁰ The efforts these humanitarian actors make to conform to the IHL fantasy sustain the Red Cross stereotype.

The status of ‘other’ humanitarian actors in IHL merits discussion, focusing here on NGOs and UN humanitarian agencies. Turning first to humanitarian NGOs,Footnote ⁷¹ certain humanitarian actors such as Médecins Sans Frontières (MSF) may meet the criteria for a number of protected categories contained in the APs.Footnote ⁷² Some humanitarian actors might also claim additional protection through an affiliation with the UN (e.g., as ‘associated personnel’, sub-contractors or implementers)^{Footnote 73} or with the Red Cross.^{Footnote 74} Generally speaking, however, most humanitarian NGO actors will have the same base level of IHL protection as the general civilian population. UN humanitarian actors are in a somewhat better position, as their emblems,Footnote ⁷⁵ facilities,Footnote ⁷⁶ and personnelFootnote ⁷⁷ enjoy further privileges and protections under international law. Still, UN humanitarian actors fail to match the Red Cross fantasy. What is more, their connection to the larger UN political or peacekeeping mission may generate additional (material) dangers.

A question that will be of interest for international lawyers is whether, and to what extent, the differential positioning of Red Cross and ‘other’ humanitarian actors matters in IHL. For the narrow purpose of targeting in the conduct of hostilities, one might argue from a positivist perspective that the impact of this differential treatment is negligible. Under IHL, civilian humanitarian actors will be legally, if not materially, protected from direct targeting unless and until they do something to undermine their civilian immunity – such as DPH. Such an account situates all civilian actors together in a unified civilian category, conferring additional privileges to Red Cross actors on top of basic civilian status.Footnote ⁷⁸

In my view, this doctrinal outlook is both incomplete and untenable in the face of the subjectivities of on-the-ground practice. I want to contest, in particular, the notion that a unified civilian category remains intact while extra privileges and protections are afforded to certain civilian actors. I propose instead that IHL’s special treatment of (some) humanitarian actors splinters the civilian category and sets up civilian-civilian distinctions. This undermines the notion that all civilians are equal under IHL, putting pressure on the normative ideal of a unified civilian category. It should be noted that this ideal is already under considerable strain, not only from concepts such as DPH but also from the differential treatment IHL affords to various civilians – such as children, women, and civil defence forces.

Staying with a focus on humanitarian actors, a point of great significance is that both Red Cross and ‘other’ humanitarian actors can be found claiming an especially pure kind of civilianness in everyday practice.Footnote ⁷⁹ The next part of the discussion illuminates the special civilian status that international humanitarian NGO actors operationalize on a daily basis.

4.2 Background on intervention in South Sudan

Following South Sudan’s independence referendum in 2011, UNMISS was installed in Juba with a UN Security Council Chapter VII authorization to ‘consolidate peace and security and to help establish conditions for development’ in South Sudan.Footnote ⁹⁴ The mission’s strong PoC mandate was subsequently ‘reinforced’ in a 2014 UN Security Council Resolution.Footnote ⁹⁵ South Sudan’s PoC sites were initially formed in December 2013, when UNMISS staff opened the gates of UN bases in response to the (eventually) hundreds of thousands of individuals fleeing the outbreak of violence.Footnote ⁹⁶ These were the early days of an internal conflict that engulfed newly independent South Sudan. The conflict was initially rooted in a power struggle between President Kiir and Vice President Riek Machar, cutting along ethnic lines as Dinka clashed with Nuer.Footnote ⁹⁷

The international community generally treats the displaced populations residing in South Sudan’s PoC sites as civilians.Footnote ⁹⁸ However, local players – including Government of South Sudan (GoSS) actors, Sudan People’s Liberation Army (SPLA) soldiers, and other armed groups – routinely question the legitimacy of this designation.Footnote ⁹⁹ Such moves have historical precursors. South(ern) Sudan has long been a context in which civilians are viewed as legitimate targets in armed conflict, especially where they are seen to sympathize with the opposition.Footnote ¹⁰⁰ There have also been credible allegations that UN forces are failing to fulfil their gatekeeping role at the PoC sites, allowing (ex-) combatants to flow in and out.Footnote ¹⁰¹ Displaced individuals have been caught smuggling weapons into the PoC site in Bentiu, Unity state,Footnote ¹⁰² and some civilians are known to engage in armed vigilante practices.Footnote ¹⁰³ Although South Sudan’s PoC sites are somewhat unusual in the sense that armed UN forces are tasked with guarding their perimeter, similar problems have routinely arisen in the context of many other global displacement settings.Footnote ¹⁰⁴

With these fluid civilian-combatant dynamics as the baseline, the international humanitarian actors who operate in and around South Sudan’s PoC sites face the unnerving prospect that local armed actors will think there are no real civilians. Although this empirical discussion focuses specifically on humanitarian-UNMISS interactions – and the canteens they eat in, the white SUVs they drive – it is crucial to emphasize that these encounters do not take place in a vacuum. If we were to keep humanitarian distinction as the subject of interest but zoom the lens out further, we would see a whole host of actors engaging and contending in the shared space. Some of these actors might pose a threat to the physical safety of humanitarian actors (e.g., violent non-state actors); some could revoke access and permission to operate (e.g., state authorities); and some might withhold trust if humanitarians do not project a certain image (e.g., beneficiaries).Footnote ¹⁰⁵ It is within and against this complex cast of characters that humanitarian actors fashion and perform their civilian persona on a daily basis. If, alternatively, we were to zoom the investigative lens further in to peer inside the humanitarian actor category or even inside a single agency, the rich array of local, regional, and international actors who engage in humanitarian work would come into view. It should be noted here that local humanitarian actors – a category that also needs unpacking – face a unique array of safety risks in their daily work.Footnote ¹⁰⁶ These actors might have a very different engagement with the concept of distinction, and this presents an important avenue for future inquiry.

By training the analytical lens on humanitarian-UNMISS interactions, without zooming too far in or out, the empirical discussion sheds light on an oft-overlooked site of practice in which the idea of distinction circulates. The contemporary dynamics explored in this article are part of a much larger story about humanitarian-peacekeeper tensions, which have existed for as long as these actors have operated alongside each other.Footnote ¹⁰⁷ In the former Yugoslavia in the early 1990s, for example, humanitarian actors voiced fears that they would be endangered by any potential affiliation with actors working for the peacekeeping mission, UNPROFOR.Footnote ¹⁰⁸ Similar concerns have materialized globally over the ensuing decades, and they have arguably intensified in the current era of UN ‘integration’.Footnote ¹⁰⁹ Because the neutrality and impartiality of UN peacekeeping missions is widely perceived as either constrained or non-existent,Footnote ¹¹⁰ humanitarian actors struggle to interact with UN mission actors while upholding their own traditional humanitarian principles of humanity, independence, impartiality and neutrality.Footnote ¹¹¹ Humanitarian actors often articulate anxieties about peacekeeper encroachment as concerns about the preservation of ‘humanitarian space’.Footnote ¹¹² This denotes the room that humanitarian actors have to carry out their tasks unimpeded, and in its traditional formulation the concept precludes engagement by non-humanitarian actors.Footnote ¹¹³ For those actors who are excluded from the humanitarian space as narrowly conceived, the delineation of such a space gives off more than a whiff of turf protection.

Leaving old debates on humanitarian space behind, the next part of the discussion investigates the way in which distinction is implicated in daily humanitarian-UNMISS interactions. When practice is taken as the starting point, the vision of distinction that materializes bears little resemblance to a bright line civilian-combatant binary.

4.3 Encounters in South Sudan’s PoC sites

In order to convey the significance of the encounters presented here, the respective IHL statuses of UNMISS peacekeeping forces and civilian staff must first be clarified. Starting with UNMISS forces, such as those who populate peacekeeping battalions, these UNMISS actors generally benefit from the protection afforded to civilians in IHL. This is with the exception of scenarios where the operation as a whole becomes a party to the conflict,Footnote ¹¹⁴ or the individual member of the operation engages in DPH.Footnote ¹¹⁵ The military aspects of the mission,Footnote ¹¹⁶ along with the uniforms that peacekeepers wear and the weapons some carry, do not in and of themselves amount to combatant status under IHL. As for UNMISS civilian staff, such as those engaging in political and human rights activities, these individuals will continue to benefit from the protection IHL affords to civilians even if the operation becomes a party to the conflict.Footnote ¹¹⁷ Civilian immunity is maintained so long as an individual’s conduct does not meet the threshold for DPH.Footnote ¹¹⁸

The default legal status for both sets of UNMISS actors will, thus, generally be civilian. As will be shown, however, asserting a distinction from UNMISS is a key way in which humanitarian actors affirm their civilian identity. In the first set of encounters that follows here, humanitarian NGO actors distance themselves from armed UNMISS peacekeepers. In the second set, humanitarians do the same with UNMISS civilian staff. These interactions are presented from each side in turn, so that the perspectives of humanitarian actors, UNMISS forces, and UNMISS civilian staff all receive consideration. Attending to the views of the two groups of UNMISS actors is revealing: it helps to expose the work that the idea of distinction is doing and conveys the high stakes of a splintered civilian category.

• Encounter 1(a): Humanitarian actors’ perspectives on UNMISS peacekeepers

  A humanitarian actor who resides in a PoC site in Bentiu, Unity state describes his daily efforts to maintain separation from UNMISS peacekeepers. He recounts an incident in which a Sudan People’s Liberation Army (SPLA) soldier behaved menacingly towards him near the entrance gate to the PoC site. At the time, this humanitarian actor was standing near the armed UN peacekeepers that guard the site’s perimeter. He deduces that simply standing there put ‘me and the peacekeepers in his head, as the same kind of thing’. Another humanitarian NGO actor residing in the Bentiu site reports that SPLA soldiers have called him both ‘UN’ and ‘military’. To mitigate this confusion, he spends a lot of time chatting to SPLA soldiers. ‘[If] something happened, I wanted them to know me.’ Despite these exertions, his efforts to intervene in a recent incident gave him cause for alarm. Upon observing an altercation between a group of humanitarian actors and SPLA soldiers at the entrance to the site, he elected to intervene. He asked an SPLA soldier he was personally acquainted with to tell his fellow soldiers not to threaten humanitarian actors. The soldier retorted: ‘But you’re UN.’ The humanitarian NGO actor was aghast, imploring: ‘You know me, you are my friend. Am I UN?’ The soldier replied: ‘Well, you are military as well.’ The humanitarian actor pushed on, brandishing his civilian credentials: ‘Do you ever see me carrying a gun?’ Lifting up his shirt, he asked: ‘Do I have an imaginary gun, an invisible gun?’ Finally, he reminded the soldier that his humanitarian NGO ‘has always been your friend, we always come here’. While this particular incident was resolved peacefully, the humanitarian actor is troubled by how sheer physical proximity to peacekeepers translated into a perceived affiliation. He concludes: ‘That was a point where I was feeling a little close [to UNMISS].’

• Encounter 1(b): UNMISS peacekeepers’ perspectives on humanitarian actors

  It emerges that many UNMISS forces operating in South Sudan’s PoC sites believe that, simply by residing in the sites, humanitarian actors have signalled a wish to associate with them. Because of this mindset, UNMISS peacekeepers are perplexed when humanitarian actors treat them as combatant-like figures that are best avoided. When I ask an UNMISS peacekeeper whether living alongside humanitarians in the PoC sites affects his views of the need for distinction, he responds to an imaginary humanitarian actor: ‘If you are so concerned, why do you eat in our cafeteria, why do you drink our water, why sleep in our camp, why use our toilets?’ In his view, humanitarian actors that reside in the PoC sites – like their counterparts who make direct use of military assets – have weak claims to distinction because ‘they still use us’. Notably, this peacekeeper singles out two humanitarian organizations in his remarks: MSF and the ICRC. He appreciates that these independent organizations would strive to avoid public dealings with the military in order to protect staff: ‘They don’t want to face retaliations and people on the ground need them …’ He refers to these two organizations approvingly as the ‘military of the humanitarians’, meaning that they share certain capabilities, mentalities, and efficiencies with military actors.Footnote ¹¹⁹Meanwhile, UNMISS forces can be found strategizing about how to close the distance between themselves and international humanitarian actors. This dynamic lends credence to the fears of encroachment that animate the practices of humanitarian actors. A Military Liaison Officer (MLO) who works for UNMISS proposes that the trick to fostering proximity with humanitarians is to not act too much like a soldier. ‘You really have to adapt yourself and think of people’s interests and speak to who they are. When I’m talking to humanitarians, maybe I’ll say [here he switches to a much softer and high-pitched voice, adopting a mischievous look] “Is everything ok? Do you need help?” Like, sympathetic.’ One UN peacekeeper goes further: ‘In our training, we get the impression that the humanitarians will not talk to us because we are military, but there are ways to make it happen. For example, I will wear civilian clothes to go visit MSF in the north. I won’t carry a gun to go to Pibor.’ Footnote ¹²⁰

In this first set of encounters, international humanitarian actors try to distinguish themselves from UNMISS peacekeeping forces so that local armed actors will not think humanitarians are legitimate targets. Humanitarian actors are, thus, behaving as though armed UN peacekeepers are, themselves, legitimate targets of attack in armed conflict. Despite the fact that UN peacekeeping forces will generally be afforded civilian protection under IHL,Footnote ¹²¹ humanitarian actors perceive UN peacekeepers to be tinged with qualities of what we might refer to as ‘combatantness’ – such as dangerousness, participation, and complicity. It follows that the civilianness of humanitarian actors could become tainted through any association with UNMISS peacekeeping forces, whether real or perceived. Humanitarian actors are not alone in viewing UN peacekeepers as combatant-like,Footnote ¹²² and indeed in some armed conflicts UN peacekeepers are legally categorized as combatants.Footnote ¹²³ It is apparent that UNMISS peacekeeping actors, themselves, are keenly aware of their combatant-like characteristics; some are evidently prepared to discard these attributes to foster proximity with humanitarian actors.

At the same time, UNMISS peacekeepers remain perplexed that humanitarians would wish to dissociate from them in the first place – especially given that so many humanitarian actors are visibly enmeshed with the UN mission inside the PoC sites. UNMISS peacekeepers clearly find it enervating that humanitarian actors would continue to rely upon them, while also professing to be bothered about distinction. Further, UNMISS peacekeepers do not believe some humanitarian actors possess the requisite authority to make demands about distinction. Authority here does not refer to a legal authority, so much as a practical authority that humanitarian actors are seen to undermine when they play an active role in blurring the lines themselves. The special accommodation one peacekeeper makes for the ICRC and MSF in the above encounter (‘they don’t want to face retaliations and people on the ground need them …’) is a fairly common practice amongst soldiers and peacekeepers.Footnote ¹²⁴ It might thus be said that the practices of international actors also project a Red Cross (and perhaps MSF) fantasy.

The main point to distill from this first set of encounters is that the idea of distinction is circulating amongst civilian actors. Although the relationships of interest here do not cut along a civilian-combatant divide, I propose that distinction in an IHL targeting sense is still very much in play. Certainly, as a matter of perception, humanitarians are attempting to manage who is seen to be a legitimate target. As the discussion moves on to the second set of encounters, the connection with the IHL targeting rule becomes somewhat more tenuous. Now, humanitarian NGO actors can be found dissociating from UNMISS civilian staff. Although the civilian identity of these UNMISS actors is even clearer than that of armed peacekeeping forces, humanitarian actors remain intent on asserting a distinction.

• Encounter 2(a): Humanitarian actors’ perspectives on civilian UNMISS staff

  Summing up the relationship with the UN mission across South Sudan’s various PoC sites, a humanitarian actor says: ‘I know we are not ideal, I know there are many mistakes done, but we simply need to try to stay away.’ As some humanitarian actors see it, UNMISS’ military aspects taint the entire mission: ‘UNMISS is a mission with a military component, and we can’t be seen to have anything to do with this.’ Other humanitarians accuse UNMISS civilian actors of blurring the lines through operational decision-making. These civilians work ‘with the military people, they fly with their assets, they go on patrol’. One humanitarian actor elaborates, ‘[W]e have access to places because of our neutrality. We try to distinguish ourselves, by toning down our connections.’ He stresses that the ultimate end is to help populations in need. ‘It’s not out of purity, it’s to get access.’ International humanitarian actors frame the UNMISS relationship with GoSS as both too warm and too cold. On the one hand, UNMISS is seen as overly friendly with state actors,^{Footnote 125}and too quick to ‘jump into normal relations’ in hopes of South Sudan finding peace. On the other hand, humanitarian actors fear that a strained UNMISS–GoSS relationship may lead South Sudanese state actors to block humanitarian access to war-affected populations. UNMISS civilian human rights monitors are thus faulted for ‘jumping up and down about human rights violations’. Reflecting on tensions with UNMISS, one humanitarian actor posits: ‘The real tension is actually with UN civilians, not the UN military.’ It is hinted that UNMISS civilians pose bigger distinction problems than military actors because they ‘are willing to break the rules’ and ‘they don’t follow orders; they say, “We’re not in the military”’. Humanitarian actors also accuse UNMISS civilian actors of competing with them, without having the requisite skills to deliver humanitarian services. To the chagrin of one humanitarian actor, UNMISS civilians think ‘they are all humanitarians’. Another humanitarian actor adds: ‘They don’t know how to measure arms and say “famine”.’

• Encounter 2(b): Civilian UNMISS staff’s perspectives on humanitarian actors

  The forging of a fault line within the civilian category provokes vexed responses from some UNMISS civilian actors. They fear that humanitarian actors are nudging them closer to the combatant category, disregarding their own legitimate fears about being associated with UN peacekeeping forces. One UNMISS civilian actor recalls an incident in which she and her civilian colleagues were interviewing displaced populations in South Sudan. Unexpectedly, armed UN peacekeepers came up behind her with their weapons visible. Being seen with armed actors, she explains, troubled her in the same way that humanitarian actors profess it bothers them – though she readily acknowledges, ‘We’re not exactly humanitarians’. Other UNMISS civilian actors comment on the blurring between different types of UN actors, particularly those belonging to the ‘black UN’ (the political or peacekeeping mission) and ‘blue UN’ (humanitarian and development actors).Footnote ¹²⁶Gesturing to the vehicles driving around South Sudan with black or blue UN logos, one UNMISS civilian actor says with exasperation ‘who the hell knows the difference’. Standing out as something of an outlier, one UNMISS civilian actor professes that even though he has civilian status under IHL, only ‘the humanitarians are civilian in nature’. He concedes: ‘UNMISS is never neutral, [it] tries to be impartial, but not really. Humanitarians are well aware of that perception.’ He emphasizes the fact that humanitarian actors work without a uniform, which sets them apart from all actors associated with the conflict in South Sudan. Notably, he includes UNMISS civilian staff in the latter group. He continues: ‘I am very confident about what I am. I am not humanitarian. We are clearly told that at the induction. They say “We are not humanitarian, we are the black UN.” My car is painted with black. So, that I know so well.’

Turning first to the relevance of the IHL targeting rule, it is clear that targeting issues are more remote in the interactions of humanitarian actors and UNMISS civilian staff. Nonetheless, I want to suggest that questions of who might be attacked have not slipped away from the picture entirely. Consider, for example, the humanitarian actor who worries about UNMISS civilians flying on military assets. As a matter of optics, humanitarian actors are also more likely to be confused with UNMISS civilian staff than armed actors, though, as noted, under IHL these UNMISS actors should not be targeted either.Footnote ¹²⁷

Returning to the notion of a civilianness continuum,Footnote ¹²⁸ humanitarian actors behave as though UNMISS civilian staff possess, at best, an ordinary kind of civilianness. This situates the latter somewhere in the middle of the civilianness spectrum. UNMISS civilian staff cannot claim a special kind of civilianness, but their civilianness is not thought to be so tainted that they are combatant-like. In the event that they acquire any characteristics of combatantness, however, these UNMISS civilians might slide further towards the wrong end of the continuum. Such a shift might occur where UNMISS civilian staff travel together with UN peacekeeping forces, for example, or use the assets of the latter. In all of these scenarios, humanitarian actors fear that an affiliation with UNMISS civilian staff could undermine their own civilianness.

Scrutinizing the way in which the idea of distinction circulates in this second set of encounters, I propose that something akin to a process of ‘vernacularization’ is underway.Footnote ¹²⁹ Engaging with the fluidity of distinction as it relates to targeting, humanitarian actors infuse the distinction with other cherished ideas, values, and principles such as competence, virtue, and political neutrality. In this way, the idea of distinction – and with it, the concept of civilianness – is bound up with a larger project of delineating the boundaries of humanitarian action and asserting the moral agency of humanitarian actors.

Unsurprisingly, UNMISS civilian staff take umbrage that humanitarian actors would avoid them and paint them as lesser civilians. The anxieties of these UNMISS actors convey in a visceral sense the way in which a carve-out for some civilian actors could be seen to undermine the status of those left behind. From the vantage point of the first UNMISS civilian staff speaker, who reports uneasiness about being seen with arms-bearers, humanitarian distinction practices push UNMISS civilian staff closer to peacekeeping forces. Intriguingly, this individual’s own colleague within the mission (who suggests that ‘only humanitarians are civilian in nature’) self-conceptualizes as having a lower form of civilianness. This UNMISS actor intimates that humanitarian actors might be the only civilians to be found, leaving opaque the fate of those belonging to the general civilian population in South Sudan.Footnote ¹³⁰ While this outlook is not an isolated one within the UN mission, I found it to be the exception rather than the norm.

4.4 A dynamic vision of distinction

This empirical discussion has revealed the manner in which every-day humanitarian-UNMISS interactions are shaped by struggles over distinction. As was shown, humanitarian actors are doing away with a static civilian-combatant binary in their daily practice. While individual humanitarian actors might be well-versed in IHL and articulate the principle of distinction as a bright line binary, a more fluid logic informs both their self-conceptualization and their interactions with others in the operational space. Humanitarian actors envision civilianness as a contingent concept, and they operate according to a continuum along which everything is a matter of degree and subtle gradation.

It is important to emphasize the dynamism of this vision of distinction. Although a given UNMISS actor might be allocated a default position along the civilianness continuum, this is subject to change. It is as though qualities of civilianness and combatantness can be found floating around in the air, attaching to individuals in accordance with their appearance, conduct, and the larger context in which they find themselves. As civilianness is detached from the civilian, any given actor might acquire or shed civilian-like (or combatant-like) characteristics at any moment. In order to secure a spot at the ‘more civilian’ end of the continuum, humanitarian actors are constantly striving to dissociate from any actor who poses a threat of contamination.

While the notion that humanitarian actors embody a purer form of civilianness is clearly contested, many UNMISS actors do contemplate a vision of distinction that departs from a bright line civilian-combatant binary. As a matter of daily practice, then, humanitarian actors are not the only international actors operating according to a ledger that is not theoretically meant to exist in international law. The final part of the discussion links these dynamics back to IHL’s principle of distinction, offering a theory of the humanitarian actor as a special civilian figure.