Non-Combatant Immunity and 'Just War'
Moral philosophers and the international political community alike have traditionally valued the lives of civilians over those of soldiers. The first part of jus in bello, the doctrine which aims to characterise the just conduct of war, states that 'civilians, as non-combatants, must not be attacked or killed', whereas the only requirement concerning the killing of soldiers is that any attack must meet the requirement of proportionality: it must not cause so much harm that the good it does is overridden. Similarly, Article 51 of the Geneva Protocols states that 'the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations', and that 'the civilian population as such, as well as individual civilians, shall not be the object of attack'. The requirement of proportionality is mentioned only with reference to the protection of civilian life or cultural objects, except in the general statement that 'it is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.' The specific protections offered to combatants are limited to wounded, sick or shipwrecked combatants, and prisoners of war - those combatants who most closely resemble civilians. The Protocols do state that all attacks must be limited to 'military objectives', but the definition of these objectives is permissive, to say the least: 'Military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.' To kill enemy soldiers in large numbers surely offers a definite military advantage. This thesis examines the moral basis for the distinction that these laws and doctrines draw between soldiers and civilians. I explain why the distinction between combatant and non-combatant casualties is not, in a significant proportion of cases, a morally sound one. I argue that any moral justification of the principle of non-combatant immunity must be of a utilitarian nature, pointing to its ability to limit the overall carnage of warfare. The implications for jus in bello of recognising that the principle can be justified only on these grounds are wide-ranging and important. If we want to retain civilian immunity, we must accept a utilitarian simulacrum of that doctrine. I argue that applying utilitarian standards to the just conduct of war will lead us to prefer very different sorts of policies from those currently embodied by jus in bello. Thus what we think about civilian immunity may have consequences for what we think about the moral foundation of our doctrine of just war.