Using as a starting point both feminist critiques of just war theorizing and feminist reconstructions of traditional theoretical approaches to the concept, causes and consequences of war(s), this article looks to outline a feminist approach to re-theorizing war ethics that explicitly accounts for and rejects the current gender biases it creates and reifies. It begins by suggesting that the just war tradition is conceptually and empirically inseparable from gendered notions of warfare, which are gender security and to securitize gender. Therefore, it suggests, war ethics through gender lenses need to be rebuilt from the ground up, paying attention to the heretofore gendered nature not only of war ethics, but also of war justificatory narratives, war practices and war experiences.The article suggests a dialectical hermeneutic framework for feminist war ethics as a basis for theorizing forward from the longstanding feminist recognition that the very concept of warfare is gendered, relying on Robin Schott’s (2008) work on witness as a theoretical basis. After outlining this approach generally, the article concludes by sketching out an example of the potential for a feminist approach to war ethics in action, examining the use whole-body image scanners in airport security assemblages.
In front of me in line in US customs in August after a long trans-Atlantic flight was someone whose ‘papers’ did not ‘match’ their ‘correct’ sex on their ‘ID’. The agent commented loudly that the person must be a gay man to wear a skirt. The woman, clearly tired and scared, was trying desperately to explain – showing a valid US passport, discussing gender transition, and even trying to show likeness to the picture. The account was uncompelling, apparently, though, and I heard the agent identify her as a ‘mismatch’ and a ‘behavior’ flag. As they took her away to the mythological small room for questioning, the person was shaking, and clearly about to cry. I quietly checked the ‘male’ box on my form, and approached the same agent. The agent erased my check mark and made it in the ‘female’ box. I protested that my check mark had not been an accident, and she waived me through, identifying me as ‘clearly a woman’.
The difficulties that airport security assemblages (Wilcox, 2015) pose for trans-persons are well-documented: customs checkpoints require stable and ‘correct’ identification of a biological ‘sex’, whole-body image (WBI) scanners sort bodies by biological sex and therefore identify trans- (or other irregular) bodies as anomalies, and the configuration of trans-people’s genitalia is considered acceptable subject matter for questioning and exploration in ‘traditional’ screenings (Beauchamp, 2009; Shepherd and Sjoberg, 2012). The links between the cisprivilege I experienced walking through the airport and (gendered) just war theorizing, however, are less well-documented. This article is an attempt to make a case for seeing these links.
It suggests that the gender tropes that make a particular, securitized form of the exclusion and mistreatment of trans-people possible are constituted by and constitutive of the (gendered) non-combatant immunity principle in just war theorizing. In fact, it claims that the immunity principle’s use of and reliance on gendered tropes of political actors not only makes the principle ineffective – it encourages violence towards and violation of the very people the principle claims to (and indeed is meant to) protect – the marginalized, gendered feminine constitutive ‘other’ of war(s) and those whose gender is unclear or transgressive.Footnote 1
Using as a starting point both feminist critiques of just war theorizing and feminist reconstructions of traditional theoretical approaches to the concept, causes and consequences of war(s), this article looks to outline a feminist approach to re-theorizing war ethics that explicitly accounts for and rejects the current gender biases it creates and reifies. It begins by suggesting that the just war tradition is conceptually and empirically inseparable from gendered notions of warfare, which are gender security and to securitize gender. Therefore, it suggests, war ethics through gender lensesFootnote 2 need to be rebuilt from the ground up, paying attention to the heretofore gendered nature not only of war ethics, but also of war justificatory narratives, war practices and war experiences.Footnote 3 The article suggests a dialectical hermeneutic framework for feminist war ethics as a basis for theorizing forward from the longstanding feminist recognition that the very concept of warfare is gendered, relying on Robin Schott’s (2008) work on witness as a theoretical basis. After outlining this approach generally, the article concludes by sketching out an example of the potential for a feminist approach to war ethics in action, examining the use of WBI scanners in airport security assemblages.
Gender, Bodies and Airport Security Assemblages
Two types of WBI scanners exist: Millimeter Wave and Backscatter units. According to the United States Transportation Security Administration (TSA, 2012), ‘millimeter wave technology bounces harmless electromagnetic waves off of the body to create the same generic image for all passengers’ and ‘backscatter technology projects low level x-ray beams over the body to create a reflection of the body displayed on the monitor’. Although these descriptions are not false, the description of the millimeter wave unit leaves out that the unit produces a detailed picture of the body, and software intervenes to project a generic image to the person evaluating the scans. Sample detailed images can be found below, where the image from the backscatter unit was obtained from the TSA (www.tsa.gov) and the image from the millimeter wave unit was attained from CNN (www.cnn.com) (Figure 1 and 2).
Both technologies are identified as WBI scanners because they provide an image of the whole body of the passenger (or, for those who do not make it through the screening, passenger-candidate). A number of scholars (for example, Redden and Terry, 2013) have identified the ways in which sex and gender serve as markers in airport security, particularly in WBI scanners.
First, male passengers are more likely to be profiled and/or identified as terrorists than are female passengers (Gross and Livingston, 2002; Nance, 2008), given the (false) presumption that the number of women who commit acts of terrorism are statistically insignificant (Sjoberg and Gentry, 2011). At the same time, for men and women alike, passage through airport security and WBI scanners is not as simple as the apparent association of men with risk and women with safety (Redden and Terry, 2013). That is in part because of the ways that the airport body scanner technology shows ‘nudity’ but (in theory) in a way that is ‘not very sexual’ and perhaps ‘makes women less attractive’ given the attention to shape rather than graphic detail (Nickisch, 2010).
The very mention of attractiveness, some feminist scholars suggest, leads to questions about the relationship between gender ideal-types and investigations into potential safety risks at airports (Redden and Terry, 2013). A number of other questions and concerns about WBI scanner technology have been brought up by feminists, including concerns of how women wearing sanitary napkins are treated by WBI scanner operators (Redden and Terry, 2013, citing Sharkey, 2010). As the US TSA website explains it, ‘any irregularity that appears on the screen will require inspection to determine what it is’ (TSA, 2012). These irregularities can range from change forgotten in one’s pocket and zippers on clothing to sanitary pads and ‘unexpected’ sex organs. Indeed, as the images above show, external sex organs are visible in WBI images (to the scan inspector for backscatter technology, and in the original image for millimeter wave technology).
These detailed images might be one reason why some analogize the use of full-body scanning technology in airports to ‘the strip-search as an act of state-sponsored sexual violence’ (Magnet and Rodgers, 2011, p. 5). Although there are many related issues that could and should be explored related to privacy, civil rights, human rights, disability rights, children’s nudity, and the like, in this analysis, I am interested in the question of trans- and/or genderqueer bodies and WBI technology – asking what scanners that examine people’s sex organs are looking for, how the goals of these examinations relate to the gendered accounts of civilian immunity in the just war tradition and how witness might countermand the injustices that airport security assemblages’ gaze at genderqueer bodies produces and performs.
Some might argue that the visibility of sex organs is incidental to the level of detail that the images contain of people’s bodies, where ‘the security state requires citizens to relinquish certain freedoms (such as a right to privacy) in order to obtain security from potential threats to the state’ (Redden and Terry, 2013, citing Young, 2003). Still, it appears that these scans not only are not ‘sex-neutral’ (that is, they impact ‘men’ and ‘women’ differently) but also are not ‘body-configuration-neutral’ (that is, they identify and single out, bodies that are not ‘sexed’ in ‘expected’ ways).
In fact, the instructive to be suspicious of trans-bodies in WBI scanners is often official security policy. According to the United States Department of Homeland Security (2003), ‘terrorists will employ novel methods to artfully conceal suicide devices. Male bombers may dress as females in order to discourage scrutiny’. As a result, according to the TSA (2012), ‘transgender travelers are encouraged to book reservations such that they match the gender and name data indicated on government-issued ID’.Footnote 4 Currently, Canadian law regulates that ‘an air carrier shall not transport a passenger if’ … ‘the passenger does not appear to be of the gender indicated on the identification form he or she presents’ (Minister of Justice, 2011). Although Canada’s law is one of the least tolerant in the world, it is not alone. Trans-passengers report actually being strip-searched in Israel (Jones, 2010), and testimonies concerning many troubles brought about by both sex-specific laws about flying and WBI scanners have surfaced throughout the world (National Center for Transgender Equality, 2011). This has led human rights officials and advocates to recognize that WBI scanners and other airport security practices disproportionately affect trans-people (Scheinin, 2009).
Part of this (official or unofficial) suspicion of trans-bodies might be attributed to confusion, where queer bodies bring up questions that disrupt the established practices of security professionals (who pats them down? If they are held, do they go to ‘male’ or ‘female’ holding areas?). Although this itself would be problematic (why is it acceptable to organize security practices by sex dichotomies when sex itself is not dichotomous?), there are several other ways in which the genderqueer identifies people as potential threats to airport security. First, gender deviance is associated with deviance more generally. As such, deviance from traditional sex organ configuration is read as a signifier of more general disregard for the rules – including, possibly, the rules prohibiting politically violent attacks (Beauchamp, 2009). This is one of the many ways that ‘discrete genders are part of what “humanizes” individuals within contemporary culture’ (Butler, 1988, p. 178).
Second, appearing to be a sex different from the one that is assigned on government-issued identification is read as a problem with honesty rather than as a problem with sex binaries. The idea that someone is ‘really a man’ presenting as a woman or ‘really a woman’ presenting as a man frames the trans- or genderqueer person as dishonest, begging the question of what else are they being dishonest about. Tanya Bettcher explains that the attachment of gender dimorphisms to airport scanning technology is an instance where it might be seen as impossible for a trans-person to be honest, because trans-people’s options are limited: ‘disclose “who one is” and come out as a pretender or masquerader, or refuse to disclose (be a deceiver) and run the risk of forced disclosure, the effect of which is exposure as a liar’ (Bettcher, 2007, p. 50). In this way, non-conforming bodies are seen as dishonest, and the dishonest is seen as (a harbinger of) criminality.
Third, and finally for the purposes of this analysis, nervousness is often flagged as a behavioral indicator of potential threats. As the US TSA (2012) describes, ‘Behavior Detection Officers screen travellers using non-intrusive behavior observation and analysis techniques to identify potentially high-risk passengers’. It is here that the additional screening of and insecurity of trans- and genderqueer passengers becomes a vicious cycle. Like in the account that opened this article, although cisgendered passengers have the privilege of ‘ascription of a stable gender identity’, which increases the probability that their journey through airport security will be without incident (Shepherd and Sjoberg, 2012, p. 11), trans-people in airports can anticipate a host of problems with presenting and explaining themselves to airport security officers, as well as with the embarrassments related to WBI scanning. Lacking the ‘security of conforming to binary, dimorphic gender norms’ (Shepherd and Sjoberg, 2012, p. 8), often, trans-people are nervous and uneasy in airports. As a result, many trans-people cannot identify whether it was their (apparently) deviant gender-presentations that led airport security to single them out for additional screening and/or grounding, or their behaviors that resulted from the nervousness that the experience of travelling trans generates (Bohling, 2012).
It may not be immediately obvious what this has to do with just war theorizing, or why it is related to the need to generate new thinking about war ethics. The rest of this article looks to make these links. It argues that the ‘just warrior/beautiful soul’ gender tropes of the civilian immunity principle are the current source of and justification of sex-based understandings of guilt and innocence in securitized situations, from war. Without manifestations of the ‘just warrior’/‘beautiful soul’ dichotomy, the idea that female bodies are safe and male bodies are dangerous – and that, relatedly, identifying gender is required to determine safety – would not make any sense. Gender deviance would be necessary neither to recognize nor to explain for security purposes. If the ideal-typical ‘beautiful soul’ civilian is a woman and the ideal-typical ‘just warrior’ and ‘enemy’ combatants are men, the genderqueer body does not fit. This lack of fit, situated in a narrative where fit is necessary for classification and classification is necessary for safety, is a condition of possibility for the association of deviant violence with deviant gender/sexuality. Traditional, gendered just war narratives permit the sort of oppression of the trans* described above, when they do not cause it directly.
To substantiate that argument, the remainder of this article traces the gendered nature of the non-combatant immunity principle and its implications for the justificatory logics under which wars are fought and security/insecurity statuses are determined. It then proposes an alternative to that framework for thinking about war ethics as/in witness and then a witness-based engagement with trans* bodily experiences with airport security assemblages.
The (Unintended) Tragedy of Just War Theorizing: The Gendered Immunity Principle
Just war theorizing is the product of centuries, perhaps even millennia, of careful thinking about what might be just in war-making and war-fighting. This body of literature theorizes about norms and rules that should exist during war, politically purposed to serve a limiting function on war – to make it more humane and less violent. From Plato (1961) (Republic 5.471a, b) to Michael Walzer (1977), just war theorists have been interested in reasonable limits to war violence for the purpose of making less wars (jus ad bellum), making the wars that still occur less treacherous (jus in bello) and, more recently, ensuring justice as wars conclude (jus post bellum). As Aristotle (1998, 1946) explained, ‘the object of war must be peace’ (Ethics 10.7; Politics 8.14.14), and many just war theorists agree, understanding just war theorizing as a political intervention in the unlimited violence of war(s) looking to minimize their occurrence generally and their injustices specifically.
Just war theorizing has a number of critics from a number of different perspectives, arguing that it is, among other things, a shallow ethical approach (Elshtain, 1987b), decontextualized from theorizing justice (Sjoberg, 2006a), fundamentally impracticable (Hartigan, 1982, p. 7; Brundelein, 2001), easily tied to righteousness (Partner, 1997), punitive (Vaux, 1992), and problematically similar to the idea that might-makes-right (Johnson, 1992). Still, a number of theorists’ detailed and dedicated work on what constitutes just war-making and just war-fighting looks to overcome these potential weaknesses and shores up just war theorizing as a useful limiting tool for both what wars are fought and how they are fought.Footnote 5 These tools are then used by policy makers and theorists alike to analyze the ethical implications of decisions to make war, and/or to rhetorically justify or excuse decisions to engage in political violence. Just war theorizing is taken seriously as an instrument of policy making, not only as an evaluative framework but as expressive, reiterative and citational.Footnote 6
This article argues, however, that all of the attempts to make just war theorizing limiting ad bellum and in bello are ultimately not only unsuccessful but also counterproductive and complicit in the cause of their own failure. It makes this argument through a feminist reading and critique of the non-combatant immunity principle’s incentive structure and its cornerstone place in the just war tradition. Such an argument requires several steps. First, it is important to consider the role of gender tropes in the non-combatant immunity principle and the material implications of this role. Second, the argument must establish that these gender tropes are fundamental to (rather than incidental to) the just war tradition. Finally, it needs to account for the potential implications for the future of just war theorizing.
Gender roles and the non-combatant immunity principle
Feminist work dealing with just war theorizing specifically and morality in war generally has frequently critiqued the gendered symbolic meanings that are just beneath the surface of the combatant/civilian dimorphism. This research has asked who (and what) the ideal-type of the ‘combatant’ is, and (relatedly) who (and what) the ideal-type of the ‘civilian’ is (for example, Elshtain, 1987a; Kinsella, 2006, 2011). Elshtain (1987a) identified the ideal-type of the combatant as a ‘just warrior’, a masculinized soldier who fights bravely in battle, but out of a desire to protect the innocent rather than out of an innate attraction to violence. The responsibility to provide chivalrous protection is key to the identity of the ‘just warrior’, where his masculinity is affirmed by providing protection and rewarded with honor and full citizenship, and he is emasculated when he is unwilling or unable to provide that protection (Huston, 1983; Stiehm, 1983; Goldstein, 2001; Sjoberg, 2006b).
The centrality of the responsibility to provide protection to the identity of the ‘just warrior’ as ideal-typical combatant, however, requires a foil, or constitutive other, to whom protection must be provided (Peterson, 1977). Feminist work has come to understand the ideal-typical civilian as playing this role, where this civilian is a feminized ‘beautiful soul’ (Elshtain, 1987a). As the just warrior’s constitutive other, this ‘beautiful soul’ is defined by her need for protection from the violences of wars (and men) and, by extension, by her innocence from these violences. She needs protection for a whole constellation of reasons: her (presumed) innocence of the cause of the war (given her apolitical nature), her ability to engage in (and actual engagement in) the biological and cultural reproduction of state and nation, and her (presumed) physical weakness. In other words, both her femininity generally and her (actual or potential) motherhood specifically play a role in constructing woman as ‘beautiful soul’ (see discussion in Sjoberg and Peet, 2011). Although the ‘beautiful soul’ does not make or fight wars, wars cannot be made or fought without her, because her protection is a key part of not only the motivation but also the justification for ‘just warriors’ engaging in the business of combat. In other words, a need to protect innocent women serves not only to motivate providing protection but also as a rationale for making wars (from which protection might be needed) in the first place.
This is how the civilian immunity principle comes to have ad bellum implications (Sjoberg and Peet, 2011). If the ‘beautiful soul’ must be separated and protected from conflict at all points, her protection becomes a key motivation for fighting and therefore a key cause for making and continuing wars, either explicitly (as a rallying cry) or implicitly (as an internalized metric of masculine sacrifice). Although I am not claiming that, in policy practice, wars are (consciously) made for innocent women, they are unimaginable without these innocent women (or their proxies, ‘our way of life’, or ‘our motherland’) to motivate and excuse fighting. Motivating belligerents to follow the in bellum limits of non-combatant immunity with passionate pleas about innocence and the value of ‘beautiful souls’ can bleed over into an ad bellum air of permissiveness, justifying fighting to protect. In this way, ‘the war-justificatory logic in the role of the beautiful soul is both found in and fundamental to the just war tradition’s civilian immunity principle’ (Sjoberg, 2013). It is constituted by (and constitutes) gendered ideas about the role of women in state/nation (Yuval-Davis, 1997, p. 2).
As such, ‘women’s bodies, relations, and roles become the battleground for different idealized versions of the past and constructions of the nationalist project for the future’ (Pettman, 1996, p. 193; Seifert, 1996, p. 35). A number of feminist theorists have suggested that this means that, in practice, the civilian immunity principle is complicit in violences done in the name of protecting women qua wars’ innocent others (for example, Peterson, 1999). Recently, though, the literature has expanded to see yet another implication (Sjoberg and Peet, 2011; Sjoberg, 2013). This work has argued that the gendered civilian immunity principle not only legitimates war ad bellum but also, ironically, provides incentive for the victimization of the very civilians that it was crafted to protect.
This incentivization can be traced step-by-step. First, the ‘beautiful soul’ is a key link in the chain of protection of the combatant’s loyal service to the state and the logic by which the state asks him to commit violence on its behalf. This can be called the ‘domestic’ impact of the ‘beautiful soul’ trope – how it impacts the ‘just warriors’ as foils to their ‘beautiful souls’. Second, though, this interaction does not happen in a vacuum. It is important to look not only at the effect that the gendered ‘just warrior’/‘beautiful soul dimorphism’ has on how a ‘just warrior’ treats his ‘beautiful souls’ (with the provision of protection) but also at the effect it has on how an enemy sees the relationship between this ‘just warrior’ and his beautiful souls. The relationship between ‘just warrior’ and ‘beautiful soul’ has an audience, which includes (but is not limited to) the state’s opponent(s). This can be called the ‘international’ impact of the ‘beautiful soul’ trope. The opponent observes the link between the ‘domestic’ will to fight and the protection of the ‘beautiful soul’. Third, then, the opponent acts on this information that has been obtained by observation. This can be called the ‘war consequence’ of the ‘beautiful soul’ trope. The opponent, observing the link between the ‘beautiful soul’ and the will to fight, determines that targeting the ‘beautiful soul’ is targeting a crucial link in the chain of the ‘domestic’ ability to fight the war and therefore targets the ‘beautiful soul’.Footnote 7 If a ‘beautiful soul’ is a key part in motivating a ‘just warrior’ to fight, eliminating her decreases his will to fight. If to protect a ‘beautiful soul’ is a key part of a ‘just warrior’s’ ability to self-identify as masculine, eliminating or violating her serves to emasculate him. These dynamics incentivize the opponent to attack ‘domestic’ civilians, as a proxy for the ‘beautiful soul’. As such, the gendered logic of the civilian immunity principle, ‘paradoxically but still really, carried to its logical end, makes it strategically beneficial to attack (enemy) civilians intentionally and in large numbers’ (Sjoberg and Peet, 2011).
Feminist work has long been cognizant of the effect of this dynamic on the incentives for, and communicative messages of, wartime rape (for example, Hansen, 2001). As Jan Jindy Pettman (1996, p. 191) explains, in war, ‘there is a long history of associating actual women’s rape with national, communal, and male dishonor’, where the rape of women is a weapon against men and their state. This national, communal and male dishonor would be impossible without the centrality of the responsibility for protection to the identity of both the individual just warrior and the just warrior state. As such, war rape is motivated in part by the same logic that motivates civilian protection. Recent research, though, shows that this effect is not limited to war rape but applies to civilian victimization generally, where civilians are targeted as women, as beautiful souls.
To suggest this is to argue that belligerents attack the (women) civilians seen as belonging to their enemies for the same reasons that they protect the (women) civilians that they see as their own – because the normative influence of the non-combatant immunity principle serves to legitimate (apparently protective) violence in war(s). It at once licenses states to make war(s) given the protective mandate of jus ad bellum just cause logic, and provides them with the logical path to total defeat of their enemies by depriving enemies of their casus belli, the women whose protection makes their fighting noble. This gives the gendered non-combatant immunity principle three functions in war-making and war-fighting, two of which are at cross purposes with not only its stated goals but also the stated goals of just war theorizing.
The role of gender tropes in the immunity principle
It is tempting to see these counterproductive manifestations as non-essential side-results of just war theorizing, and to make the argument that the sex biases of contemporary manifestations of the civilian immunity principle could (and should) be corrected in order to produce a sex-neutral and gender-neutral principle to effectively protect the ‘real’ civilians. After all, it does not seem as though identifying and protecting the innocent in war is either on-face morally harmful or necessarily gendered. Still, seeing the gendered dimorphism of the ‘just warrior’ protecting the ‘beautiful soul’ as incidental to the idea that there are ‘civilians’ who require ‘immunity’ from war(s) requires that identifying innocence (or illegitimate targets) be separable from these gender tropes.
I claim this is a fundamental misreading of the practice of civilian immunity if not the theory, which cannot otherwise identify those who merit immunity. Indeed, the process of identifying who is innocent of wars and who therefore needs protection has been both crucially important and very controversial among just war theorists throughout this history of just war theorizing (for example, Mavrodes, 1975, p. 121). Just war theorists have argued about whether harmlessness (Teichman, 1986, p. 66), resistance to the conflict (Hartigan, 1982), work outside of the war sector (Kalshoven, 1973, p. 55), lacking complicity (Calhoun, 2002) or innocent intent (Walzer, 1977, p. 28) best identifies the innocent in theory. Even if it were easy to choose one of these models on which to base future judgments about the categorizations of combatants and civilians (and, by extension, the innocent and the guilty), it would need to be practicable to translate these abstract categories into heuristics for recognizing as to who falls in each category. This is more difficult than it initially sounds. In fact, some just war theorists go so far as to make the argument that effectively discerning who is a combatant and who is a non-combatant is impossible in a world where uniformed troops do not meet on battlefields (O’Brien, 1969, p. 248ff; Wells, 1969, p. 827).
It is in the midst of this ambiguity that I make the claim that the ‘just warrior’/‘beautiful soul’ dichotomy is not incidental to the non-combatant immunity principle, but a practically necessary part of its continued existence and salience. Soldiers and their commanders do not identify the innocent and the guilty by uniforms, accurate calculations of dangerousness, their acts, their roles, their citizenship or their intent. Instead, they identify them by age and sex as understood-reliable proxies for innocence and guilt. Indeed, consistently in military practice, combatants have been identified as ‘military age males’, and civilians as anyone who falls outside of that group. Though this practice has been used at the strategic and tactical levels of military planning for a long time, both the George W. Bush and Barack Obama administrations in the United States have also instituted it at the policy level, remaining committed to the idea that ‘the protection of innocent life has always been a critical consideration’ but seeing ‘all military-age males in a strike zone as combatants’ (Becker and Shane, 2012, quoting Michael Hayden, CIA Director under George W. Bush).
I argue that this is because (and only because) of the gendered tropes that presume particular roles during war(s), making ‘military-aged’ men a proxy for ‘combatant’ and ‘civilian’ a category understandable as synonymous with women (and children). If this is the cause, then the gendered dimorphism between just warriors and beautiful souls is not coincidental to, incidental in or separable from, the non-combatant immunity principle. It is instead a fundamental feature of its continued existence and salience. This can be seen in its far-reaching implications, from motivating soldiering (Goldstein, 2001) to impacting citizenship (Young, 2003).
This has implications not only for the ways that wars are made and fought, but also for the discussion of airport security assemblages above. If the distinction between combatants (who are dangerous) and civilians (who are harmless) is made in practice if not in theory on gender lines, then it becomes important to identify the gender of a person to ascertain one’s level of security around them. This is how the need for settled gender gets matched to the need to secure in places like airport security assemblages, where ‘male’ or ‘female’ is the only identity that is routinely required that travelers address in a settled way.
The role of the (gendered) civilian immunity principle in just war theorizing
If this is the case, the next question to answer is whether or not the (gendered) civilian immunity principle is a fundamental (and irremovable) feature of just war theorizing. Two options exist. The first (which is tempting) is that just war theorizing could be separated from the (gendered) civilian immunity principle and therefore rescued from its own internal contradictions. After all, there are those who would dispense with the (gendered) immunity principle, and indeed with conceptions of basing legitimate targeting on the identities of the victims (for example, Fabre, 2012, focusing on the intent of the killer rather than the status of the killed). These approaches, however, continue to rely on some proxy of victim innocence or guilt to read intent.
Even if these were not the case, though, they would remain problematic. It is my argument that an ethics of targeting responsibility outside of gender tropes but inside of current gendered logics for war justification would fail to ‘sell’ to war practitioners, as gendered ad bellum logics rely on gendered in bello logics remaining intact. In other words, war in its present form would be unimaginable without the ‘feminized other’ who is a condition of possibility of war-making as well as a key link in the production of war-fighting. As I have suggested before, this forces consideration of a second possibility – that this paradox is inherent in the idea of discriminating between combatants and non-combatants, which is itself a linchpin of the just war tradition (Sjoberg, 2013). If the purpose of just war theorizing is to serve as a moderating influence in war-making and war-fighting, and, despite that intent, it functions as a permissive force in war-making and war-fighting, then part or all of it needs to be supplanted to fulfill the intent of those who see the ethical importance of moderating the making and fighting of wars.
Because of this fundamental problem, I argue that just war theorizing’s limiting and permissive functions then need to be weighed against each other, deontologically and practically. Deontologically, a principle that serves to motivate its own intentional violation is morally problematic. In practice, if the immunity principle’s gendered tropes motivate not only in bello intentional civilian victimization but also ad bellum violent choices, the scales also tip against continuing to rely on a just war approach that includes the civilian immunity principle (and its gendered performances). Some alternative must be articulated.
Rethinking Justice in/of War through Gendered Lenses
If the just war tradition serves an unintended permissive function because of inseparable, gendered elements of the civilian immunity trope, then a much more fundamental question becomes important to consider. If not with just war theory, how could we tell whether/when war-making and war-fighting decisions are just or unjust? If the distinction between combatant and civilian is ultimately untenable, what might a concept of just war be without that distinction?
One way to address these questions might be to look to pacifism for a moral compass in dealing with war, contending that the idea of a morally acceptable war is itself an oxymoron, and looking to reject war-making and war-fighting on moral terms. It seems unlikely, though, that war will end in the near future. As such, even were one to adopt a pacifist ideal, having practicable norms for dealing with war (both on deontological and consequentialist grounds) seems important. This is especially true given the potential moral repugnance of a world without any normative guidelines on how to restrain wars’ worst excesses.Footnote 8 If pacifism is infeasible, unrestricted warfare is unimaginable.
A harder answer, but one worth pursuing in my mind, is thinking about war ethics without the civilian/combatant dichotomy either to distinguish targets or to justify the cause of wars. It would need alternative justification for war than for those whom it cannot and will not be able to protect. If such an idea is workable, it would also eschew the us/them and public/private separations in war decision-making, changing the ethical subjects and objects of just war theorizing. Eschewing the us/them dichotomy in war decision-making means stopping it from being possible to see the lives of the (‘combatant’ and ‘civilian’) other as expendable purely on the basis of ‘their’ other-ness, and therefore taking into consideration ‘their’ complexities, ‘their’ humanity, and even ‘their’ war-justificatory narratives in deciding whether (and how) to fight ‘them’. It would therefore require not necessarily sympathy but certainly empathy to get a sense of the positionality, needs, wants, desires and feelings of the ‘other’ in conflict situations – using the term ‘other’ both individually (as the soldier-opponent) and collectively (as the state-opponent). Eschewing the public/private divide in war decision- making would place the responsibility for war decisions (particularly war-killing decisions) both centrally (on the state and its military apparatus) and locally (on all who play a role in the condition of the possibility of killing). This fundamentally alters the ‘us’ that might decide, ontologically, to make wars and act to fight them.
Perhaps it starts at deconstructing dichotomous understandings of us/them as a way to/result of deconstructing the combatant/civilian dichotomy, ‘we’ are inseparable from ‘them’ – linked to, relationally dependent on, relationally constructed ‘with’ ‘them’, therefore targeting is not unidirectional from ‘us’ to ‘them’ but has broader implications for ‘us’, for ‘our’ bodies, for ‘our’ lives and for how ‘we’ think about the world. Such a war ethics might start at interdependence and intersubjectivity, basing its dictates on a communicative approach to war decision-making. In this way, it might be possible to avoid or correct for the net public harm the just war performances are/have become (Alker, 2001; Habermas, 1981). Feminist ontologies provide some hints for how to begin to reconstruct war ethics in a way that is both communicative and interdependent. As Brooke Ackerly et al (2006, p. 7) explain:
Feminist ontologies that expand our notions of world politics to include the personal and previously invisible spheres, and that start from the perspective that subjects are relational (rather than autonomous) … demand self-reflexive methodologies.
This provides a potential road-map for re-visioning war ethics. It suggests breaking down the public/private dichotomy in the civilian immunity principle in a way critically self-reflexive of both the theorizing process and the implications of both the immunity principle and any replacement for just war theorizing (or even war, more broadly), while keeping relationality at the core of any theoretical deconstruction (or corresponding reconstruction).
In order to keep relationality at the core of re-visioning war ethics, it is important to understand some of the implications of a relational conception of human subjects to war behavior. If subjects are relational (and therefore relationally autonomous, for example, Hirschmann, 1989), the jus in bello content of war ethics cannot be based on which individuals and bodies can be targeted without the context of their relations and relationships with others. Instead, thinking about people as autonomous subjects (‘the soldier’ who attacks and protects ‘the civilian’ who has no agency in that protection but is entitled to it/its performance) is a counterproductive direction for theorizing or planning war-fighting. The current civilian immunity principleFootnote 9 relies on figuring out which (discrete) individuals fit in which (discrete) categories, assigning entitlements and risks to them on the basis of membership in those (discrete) categories, then assigning responsibilities to combatants on the basis of civilians’ entitlements (for example, Walzer, 1977).
Instead, a war ethics without civilians would necessarily have to base the jus in bello treatment of people (relationally rather than individually) on the basis of their relationships – both to each other and to the cause for which the war is being fought. As Robin Schott suggests, in times of war, ‘it would be better for a political community to critically examine its identity and the outsiders that its identity creates than to reassert the validity of its identity through force’ (Schott, 2008, p. 133) This suggests that the jus in bello content of a war ethics without civilians could start with critical self-examination not only of the grievance or just cause but also of the people who are responsible for the just cause, and that just war-fighting would be based on the relationship of the targets to the targeters and the cause, taking account of complexity and context. Such an approach would make many more categorizations than ‘combatant’ and ‘civilian’ imaginable, and allow both theorists and practitioners to think about degrees of relationship and degrees of separation between not only belligerents but also the people who constitute the states and/or ethnic groups ‘at war’, with their constituent similarities and differences. Because of these radical shifts in thinking about people, an account of just war without civilians would need a new mechanism for recognizing participation and suffering in the making and fighting of wars, and a new plan for accountability, accounting and re-evaluating in bello choices and results.
In her evaluation of just war theorizing, Robin May Schott (2008, p. 133) suggests such a mechanism in the idea of witness. Schott (2008, p. 124) identifies one of the key problems with contemporary just war theorizing as what she labels the ‘problem of evil’, in the Kantian species-wide sense. Identifying war as a ‘problem of evil’, Schott argues that it can be justifiable but never just. This contention removes the ‘metaphysical defense of war, takes away the rhetoric of sacrifice, and takes away the assumption that the existing social order is just (Schott, 2008, p. 132). Understanding war as always illegitimate if sometimes justifiable frames war ethics fundamentally differently, where ethical actors must ‘resist [rather than rely on] militarism as the means of salvaging political identity’ (Schott, 2008, p. 132). In Schott’s (2008, p. 132) terms, then, the mission of a war ethics framework ‘is to show why political violence is not legitimate, not to provide criterion for when and how violence should be used’.
Note that this framing of war as evil is neither a disengagement with war or a rejection of the idea of moderating the making of or use of force in war. Rather, it is a different way to, and an intervention in, the ways that we moderate war-making and war-fighting. Capitalizing on the idea of relationality, Schott suggests alternative narratives of war and alternative narratives to war as discursive and practical mechanisms to limit wartime violence (2008, p. 132). These alternative discourses to war might show how we are currently blind ‘to alternative visions and forms of action’ while alternative discourses of war ‘may well challenge dominant self-understandings of political identity’ (Schott, 2008, pp. 132–133). In other words, alternative discourses of war might change in bello practices differently (and perhaps less counterproductively) than might the existing non-combatant immunity principle.
Still, the construction of alternative discourses of war as a war ethics structure to limit the fighting of wars is anything but straight-forward. The basis for these alternative narratives, the method for constructing them and the means for disseminating them must all be both internally coherent and in service of the greater political purpose of restraining the excesses of war. Schott suggests a path to accomplish those ends, which is a radical departure from the sacralizing war in ‘just war theory’s emphasis on the life-and-death significance of its cause’ (Schott, 2008, p. 133). The path that she suggests is to ‘give weight to the role of the witness in wartime’.
Schott explains, citing Agamben, that ‘the word witness derives from the Greek word martis, the martyr, which derives itself from the verb meaning to remember’ (Schott, 2008, p. 133; citing Agamben, 1999, pp. 26–28). According to Schott (2008, 133), ‘an ethical discourse of war that gives weight to witness … – generates a discourse of war based on their experience of war, not abstracted from experience’. This is because ‘the witness – most usually a survivor of wartime violence, but also a bystander who gives testimony’ obliterates the abstraction of the injured other by highlighting pain, powerlessness, hopelessness and humiliation that are essential to, rather than incidental to, war targeting decisions (Schott, 2008, p. 133).
Feminist scholars looking at in bello targeting decisions have long been critical of the tendency for decision-makers to use the rule-like quality of just war theorizing to abstract ‘civilians’ to numbers (for example, Cohn, 1987, 1993), symbols (for example, Young, 2003; Sjoberg and Peet, 2011) and significations (for example, Sjoberg, 2013). The construction of alternative discourses of war based on the witness of the other conceptualizes (not just ‘our’ but all) victimhood in war(s) as lived experience – which forces humanization and corrects the artificial removal of emotion from ethical and strategic discussions wartime targeting. As Schott explains, ‘the discourse of witness also makes evident that there are many more complex positions in war than the position of warrior or the victim’ and ‘gives weight to the pain of individuals and communities’ (Schott, 2008, pp. 133–134). This weight is not just symbolic but operative – operative in countering the abstraction of the ‘other’, operative in inserting self into the suffering of the ‘other’, and operative in invoking individual and collective emotion in conflict decision-making.
Rather than serving (as Schott critiques along with Elshtain before her) to ‘reinstall the identity of subjects as either warriors or victims’, hearing alternative narratives of war based on the testimony of those who live it ‘can respond to evil in terms of collective harm done to human beings and human freedom through the war systems’ (Schott, 2008, p. 132, p. 136, citing Elshtain, 1992). Sylvester (2010), build off of her analysis of sense and war (p. 26) encourages us to think about ‘what security feels like and does not feel like’ as a way to understand war experiences and their consequences. She suggests that there is a ‘war sense’ and a ‘security sense’ that people experience as they make, fight, engage with and respond to war(s) (Sylvester, 2010, p. 26). Schott then suggests that people can testify to their ‘war sense’ by highlighting the felt experiences of war. Such testimony from witnesses in a multiplicity of positions (individually and collectively) – ‘soldiers’, ‘civilians’, ‘politicians’ and ‘people’ – could be collectedFootnote 10 and leveraged – not to create new rules of war but to serve as themselves rules of war. Of course, these testimonies do not literally form a set of directives to replace the civilian immunity principle in just war theorizing. Instead, they serve as a series of narrative-rules (stories with ‘morals’ or ‘punchlines’) coalesce to create a state of ‘rule’ defining the limits of acceptable behavior (for example, Onuf, 1988). Jus in bello rules, then, are socially constructed by the human experience contained in the testimonies of those who live war(s), and the empathy and identification necessary to hear them.
Advocating such an alternative is necessary, according to Schott (2008, p. 136), that ‘just war theory is misguided … in identifying philosophical reflection on war with a philosophical codification of war conventions’ not least because of the inevitability that a set of standards will serve a permissive function like the one described above. Although just war theorizing ‘both sacralizes war and assures us of the inviolability of our own identity’, an approach to war ethics that promotes witness testimony as ethical philosophy about war encourages the sort of reexamination of community identity (and the outsiders that identity creates) that Schott (2008, pp. 136–137) sees as foundational to producing ethical behavior in wars rather than simply a set of (often counterproductive) operationalizations of justice in war(s). The next section of this article illustrates the problems with the (gendered) civilian immunity principle for trans-bodies in airport security assemblages, and then shows the potential of a witness-based approach to reconstructing war ethics to correct for these shortcomings.
War, Witness and WBI Scanners
Civilian immunity, trans-bodies and airport security assemblages
The gendered story of the ‘just warrior’ as combatant and the ‘beautiful soul’ as civilian translates into a type-casting in the process of war-fighting, where combatants self-identify as brave protectors and identify civilians by their (perceived) sex/gender.Footnote 11
These shorthands translate into security practice (as well as jus in bello) in a number of ways. As discussed above, the association of masculinity with danger and femininity with harmlessness makes determining sex (and therefore gender) of people a prerequisite of identifying the level of safety one should feel around the person. As such, when the gender trope of just warrior and beautiful soul creep into security narratives and dispositions, either explicitly or implicitly, the (perceived or actual) indeterminacy of gender itself becomes a threat. In this way, the gendered civilian immunity principle within just war discourses is an underlying structure of the harassment of trans* and genderqueer bodies in airport security assemblages. The rest of this section explores the alternative to war ethics (broadly construed) suggested above as a potential path towards reversing that violence.
Witness against airport security assemblages
Witness as constructive of rules for airport security assemblages about trans-bodies might provide a way out of the trap of the gender topes of the civilian immunity principle for those who endure their everyday impacts. Hearing the testimony of genderqueer bodiesFootnote 12 about airport security could have two important impacts. First, it could be key to (emotionally and psychologically) identifying, drawing attention to and identifying with the voices of persons traumatized by the cisprivilege inherent in current airport security practices, suggesting the necessity of finding other ways to identify the ‘safety’ and ‘dangerousness’ of air passengers. Second, it could, in Schott’s (2008, p. 133) terms, serve as an outlet for survivors, where ‘giving testimony is crucial for survivors who thereby reconstitute their role as an ethical subject by refusing to be victims of their own memory’.
Certainly, the witness of people whose (perceived) failure to present in gender-traditional ways at airports resulted in inconvenience, abuse and terror is readily available (see, for example, Currah and Mulqueen, 2011). One trans-traveller describes herself as being ‘lucky’ because she is ‘post-op’ and therefore her documents ‘match’ how she ‘presents’ but still explains that ‘these scanners terrify me’ because there is always a risk her anatomy will be the subject of questions (Geen, 2010). Another traveller explains that the combination of sex rules and WBI scanners means that ‘every flight’ includes ‘stress and gender panic’ on top of ‘good old-fashioned inconvenience and exhaustion’, with ‘100% more intrusion and intimidation’ (Coyote, 2010). S/he explains that:
I made the mistake of wearing a small, soft packer in my underwear last week. This has never been a problem before now. But I was full-body scanned and it showed up, apparently in a viewing room somewhere nearby. Then I was subjected to a genital pat-down. I managed to convince her that it was the wad of $20s I had from selling books in my front left pocket (I dress left), and she radioed back that the “object had been identified” and let me go, but my hands did not stop shaking for a couple of hours. (Coyote, 2010)
A trans-man describes having been forced to part with a prosthetic sex organ, needing to put it on the table and stand 3 feet away as strangers handled and inspected it, thinking I don’t want to do this and explaining ‘it was so wrong to stand there with my cock on the table, exposed to the world and about to undergo inspection by people who, though polite, didn’t understand what it really was, what it signified to me’ (Jones, 2011). These are just a few of the thousands of narratives readily available in newspapers, from advocacy groups and generally on the internet.
A witness-based approach to reading airport security specifically and just war theorizing generally, though, transforms them from unrelated anomalies that can be hidden from visibility by cisprivilege to a key part of understanding the impacts not only of war but also of conceptions of war morality (Shepherd and Sjoberg, 2012, p. 11). Story after story of the suffering of genderqueer bodies at the hands of (inaccurate)Footnote 13 sex stereotypes about who is and who is not a danger to the security state can be found at every turn.
What these narratives mean, how they are produced and how they are consumed, however, could change in the wake of a radical change of theorizing civilian immunity in just war. If we thought of the philosophy of jus in bello through the stories of those who live in bello (in the ‘war on terror’, for example, in the webs of airport security assemblages), then these testimonies would not be reduced to survival tactics or therapeutic for their utterers or the occasional fodder of human rights advocates.
Instead, they would be reproduced and repeated as the rules of how airport security assemblages are inhumane and how their humanity could be and must be restored. Listening to these stories as the rules would tell us that, of course, it is not acceptable to separate someone from his penis because his separable penis can be read as dishonest, deviant and therefore threatening. Of course it is not acceptable to detain people for the configurations of their sex organs. Of course it is not okay to make people feel less than others because they are genderqueer. Of course there is something wrong with inspecting the ‘naked’ bodies of airport passengers for sex organ irregularities. The gut-wrenching stories of the people who feel these tortures tell us that it is not acceptable. Their stories tell us that it is important not only to ask who is ‘safe’ and who is ‘dangerous’ in airports but also to whom asking these questions is ‘safe’ and to whom asking these questions is ‘dangerous’. In this sense, ‘it’s about how falling outside of a narrow category can become dangerous’ (Bohling, 2012).
It is not that there are no counternarratives; perhaps even counternarratives are as viscerally touching as those of trans-bodies that are victimized by airport security practices. For example, perhaps they are the counternarratives of 9/11 victims and their families, some of whom are interested in preventing terrorism, whatever be the cost.Footnote 14 These counternarratives do not need to be silenced for the narratives of victims of airport security practices to be heard – suffering is neither a competition nor a zero-sum game in this understanding. Instead, it is something to be heard and understood in the ‘other’ through practices of empathy (Sylvester, 2002). In this way, foregrounding witness makes the narratives of those endangered by WBI scanners as important as the narratives of those attached to their continued deployment. It interrupts the dominant narratives that exclude the suffering of these bodies from the suffering considered unjust in war(s) by definition, and therefore serves a function of revealing their (gendered) injustices.
As Schott aspires, the potential of witness does not stop in revealing the injustices suffered or witnessed by those testifying. Instead, the repetition of, and identification with, the suffering of wars’ witnesses has the potential to serve the function of the social construction of rules (and therefore a state of rule) about how to treat people in conflicts. Certainly, in the case of both airport security assemblages and more generally, some of the rules produced by testimony will be ambiguous and even contradictory. Approached both with empathy and with a desire to publish, experience and account for multiple levels of suffering, it is possible that the state of rule that they engender will be more humane (and less counterproductive) compared with the specific rules of the civilian immunity principle that made possible the suffering to which they now have the (unfortunate) ability to testify.
Suggesting that the just war tradition is built on, reliant on and inseparable from gendered narratives of innocence and guilt in war, this article explored the consequences of the just warrior/beautiful soul dichotomy not only for war theory and practice generally but also for the specific instance of trans-bodies and WBI scanners in airport security. It argued that the gender problems with just war narratives are only addressed by rebuilding theories of morality in war from the ground up, abandoning the combatant/civilian dichotomy and its gendered origins. It laid out a preliminary sketch of a dialectical-hermeneutic ideal of witness as a basis for analyzing and understanding war targeting specifically and war ethics generally. In so doing, it hopes not only to raise more questions than it answers but also to reframe the debate about who and what constitute threats in war. An experience-based, testimony-centered approach to seeing how people live war and security might be a way forward to separate thinking about and making war from its (current) inherent sexisms and cissexisms.
Seeing war as importantly material, but a continuum rather than an event, and distinguishing the practice of war from the occurrence of wars (for example, Cuomo, 1996).
Following Spike Peterson and Anne Sisson Runyan (1999, p. 1, p. 21), lenses serve as filters, to ‘foreground some things and background others’. Therefore, according to Jill Steans (1998, p. 5), ‘to look at the world through gender lenses is to focus on gender as a particular kind of power relation, or to trace the ways in which gender is central to understanding international processes’, in order to, as Lauren Wilcox (2009) explains, ‘as what assumptions about gender (and race, class, nationality, and sexuality) are necessary to make particular statements meaningful’.
This is not to group all just war theorizing together as gendered, only to suggest that the dominant narratives and philosophical justifications for it converge on gendered distinctions.
Oddly enough, the name data is often easier to match than sex data, given the ease of legally changing your name as opposed to the (often) difficulty of legally changing your sex (which, in the United States, varies in requirement from state to state).
See Sjoberg (2013) for an in-depth discussion of each of these elements.
In Clausewitz’s terms, a ‘center of gravity’, with combined physical and psychological value.
This suggestion has been made by war theorists (particularly strategists) before. In fact, Clausewitz (1976 ) favored discarding the moral inhibitions on war-fighting that he suggested made morally minded belligerents more vulnerable to losing wars than those willing to fight wars unrestricted by morality.
As well as just war’s tenets that deal with the need to injure civilians (double effect and supreme emergency) (see, for example, Walzer, 1977).
When and only when voluntary of course.
For example, Charli Carpenter (2005) found that civilian aid organizations identify those who are civilians by female sex and motherhood. Sjoberg and Gentry (2007) noted that, often, potential terrorists are identified by their male sex. Interviews with American soldiers and private military contractors identify ‘military-age men’ as threats in combat zones and people who are not ‘military-age men’ as civilians.
And bystanders, like my story above.
While, currently, assessments of risk are (at best) based on statistical probabilities and (at worst and usually) based on crude gender, religion, race and age stereotypes, experiential assessments would look radically different, especially for trans-people. Very few if any persons actually suspected of terrorism have engaged in cross-dressing for the purposes of committing terrorism or escaping capture – a few stories exist with questions of their credibility. There are no detectable news stories of trans- or gender queer bodies being involved in crimes described as terrorist. If that is true, paradoxically, airport security is singling out people who are at a smaller risk for violence than the general population.
Others are not, and have been quite outspoken about opposition to suppression of freedom. This is more used as a strawman an accurate representation.
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Sjoberg, L. Witnessing the protection racket: Rethinking justice in/of wars through gender lenses. Int Polit 53, 361–384 (2016). https://doi.org/10.1057/ip.2016.5
- just war theory
- international security
- airport security
- queer theory