scholarly journals Non-Combatant Immunity and 'Just War'

2021 ◽  
Author(s):  
◽  
Amy Russell
Keyword(s):  
Just War ◽  
Significant Proportion ◽  
Prisoners Of War ◽  
Political Community ◽  
Military Operations ◽  
Civilian Life ◽  
Moral Foundation ◽  
Jus In Bello ◽  
Civilian Population ◽  
Civilian Immunity

<p>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.</p>

scholarly journals Non-Combatant Immunity and 'Just War'

2021 ◽  
Author(s):  
◽  
Amy Russell
Keyword(s):  
Just War ◽  
Significant Proportion ◽  
Prisoners Of War ◽  
Political Community ◽  
Military Operations ◽  
Civilian Life ◽  
Moral Foundation ◽  
Jus In Bello ◽  
Civilian Population ◽  
Civilian Immunity

<p>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.</p>

THE APPLICATION OF IHL IN THE GOLDSTONE REPORT: A CRITICAL COMMENTARY

2009 ◽  
Vol 12 ◽  
pp. 347-402 ◽  
Author(s):  
Laurie R. Blank
Keyword(s):  
Prisoners Of War ◽  
Humanitarian Law ◽  
Military Operations ◽  
Jus In Bello ◽  
Legal Standards ◽  
Critical Commentary ◽  
Military Commanders ◽  
The Law ◽  
Principle Of Proportionality ◽  
Modern Warfare

AbstractOperation Cast Lead, the Israeli military operation in Gaza that began on December 27, 2008, demonstrated anew the challenges international humanitarian law faces in contemporary conflict. The Goldstone Report presented an opportunity to examine critically how the law applies in complicated modern warfare and how the law might be used to solve difficult problems such conflict poses.This article analyzes the Goldstone Report's application of the law to the conduct of both parties in the conflict to examine how it applies and interprets the legal standards within the framework of the Gaza conflict. In particular, the article focuses on two main shortcomings in the Goldstone Report's application of IHL: areas in which the report could have benefitted from a greater sensitivity to the complexities of modern warfare, and areas in which its approach is questionable as a matter of law.First, the article highlights the report's flawed examination of the challenges posed by contemporary conflicts in two fundamental areas of IHL: distinction and military objectives. Both require that military commanders and soldiers understand who is a civilian and who is a fighter or combatant, and which targets are military targets and which are civilian objects. Without a thorough and sophisticated understanding of how to make these determinations, military commanders, soldiers and policy makers will face grave difficulty in planning and carrying out military operations within the bounds of the law. The challenges presented in Operation Cast Lead are emblematic of some of the most difficult dilemmas modern warfare poses.Second, the article highlights several areas in which the Goldstone Report's application of IHL is questionable, either because it uses the incorrect legal standard or because it applies the wrong law when more than one body of law applies. The report errs twice in its treatment of the principle of proportionality, first by approaching jus in bello proportionality retrospectively rather than prospectively, and second by conflating jus ad bellum proportionality with jus in bello proportionality. Additional problems arise in its analysis of the law governing precautions in attack and the treatment of prisoners of war, and its assessment of responsibility for specific crimes, including attacks on civilians, destruction of property and hostage taking.

Proportionality under Jus ad Bellum and Jus in Bello: Clarifying their Relationship

2012 ◽  
Vol 45 (1) ◽  
pp. 107-124 ◽  
Author(s):  
Raphaël van Steenberghe
Keyword(s):  
Case Law ◽  
Military Operations ◽  
Military Operation ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Legal Literature ◽  
State Practice ◽  
The Individual ◽  
The Military ◽  
The Relationship

Proportionality is a condition provided under both jus ad bellum and jus in bello. Based on a particular interpretation of state practice and international case law, recent legal literature argues that the two notions of proportionality are interrelated in that proportionality under jus in bello is included in the assessment of proportionality under jus ad bellum. This article seeks to refute such a position and, more generally, to clarify the relationship between the two notions of proportionality.The main argument of the article is in line with the traditional position regarding the relationship between jus ad bellum and jus in bello. It is argued that, although sharing common features and being somewhat interconnected, the notions of proportionality provided under these two separate branches of international law remain independent of each other, mainly because of what is referred to in this article as the ‘general versus particular’ dichotomy, which characterises their relations. Proportionality under jus ad bellum is to be measured against the military operation as a whole, whereas proportionality under jus in bello is to be assessed against individual military attacks launched in the framework of this operation.This article nonetheless emphasises the risk of overlap between the assessments of the two notions of proportionality when the use of force involves only one or a few military operations. Indeed, in such situations, the ‘general versus particular’ dichotomy, which normally enables one to make a distinct assessment between the two notions of proportionality, is no longer applicable since it becomes impossible to distinguish between the military operation as a whole and the individual military attacks undertaken during this operation.

Just and Unjust Uses of Limited Force

2021 ◽  
Author(s):  
Daniel R. Brunstetter
Keyword(s):  
Just War ◽  
Berlin Wall ◽  
Special Forces ◽  
Jus In Bello ◽  
Jus Post Bellum ◽  
Jus Ad Bellum ◽  
Use Context ◽  
Just War Tradition

Limited force—no-fly zones, limited strikes, Special Forces raids, and drones strikes outside “hot” battlefields—has been at the nexus of the moral and strategic debates about just war since the fall of the Berlin Wall but has remained largely under-theorized. The main premise of the book is that limited force is different than war in scope, strategic purpose, and ethical permissions and restraints. By revisiting the major wars animating contemporary just war scholarship (Kosovo, Afghanistan, Iraq, the drone “wars,” and Libya) and drawing insights from the just war tradition, this book teases out an ethical account of force-short-of-war. It covers the deliberation about whether to use limited force (jus ad vim), restraints that govern its use (jus in vi), when to stop (jus ex vi), and the after-use context (jus post vim). While these moral categories parallel to some extent their just war counterparts of jus ad bellum, jus in bello, jus post bellum, and jus ex bello, the book illustrates how they can be reimagined and recalibrated in a limited force context, while also introducing new specific to the dilemmas associated with escalation and risk. As the argument unfolds, the reader will be presented with a view of limited force as a moral alternative to war, exposed to a series of dilemmas that raise challenges regarding when and how limited force is used, and provided with a more precise and morally enriched vocabulary to talk about limited force and the responsibilities its use entails.

Experimental Viewing Protocols

2018 ◽  
Author(s):  
Haidee Wasson
Keyword(s):  
World War Ii ◽  
Military Operations ◽  
Civilian Life ◽  
American Military ◽  
Moving Images ◽  
Film Presentation ◽  
Wide Range ◽  
Armed Services ◽  
The Military ◽  
Film Viewing

This chapter, by Haidee Wasson, addresses the development and use of portable film projectors by the American military during World War II and after. It examines the close ties to the technological wing of the American film industry and situates the innovation and use of film projectors in the context of ongoing experiments with projectors, projection, and film viewing within the armed services. This includes a discussion of standard operating equipment that became widely integrated into military operations as well as more specialized devices: gunnery trainers, consoles, data analyzers, and dynamic projection devices that made moving images into elastic, animated performance pieces. This chapter demonstrates that the military developed an expansive, global viewing platform that normalized film presentation and viewing within a wide range of military activities. This was an unprecedented use of portable film technology, and it helped to catalyze its postwar proliferation in military and civilian life thereafter.

Proportionality and Necessity in Jus in Bello

2016 ◽  
Author(s):  
Jeff McMahan
Keyword(s):  
Moral Theory ◽  
Just War ◽  
Traditional Theory ◽  
General Notion ◽  
Jus In Bello ◽  
Work First

In this chapter, the author explores the requirement of proportionality in the killing of civilians in war. The work first examines the general notion of proportionality in defensive harming. It then explores proportionality in the resort to war and explains why the traditional theory of just war claims that proportionality in individual acts of war must be different. The author argues that the traditional theory’s claim is a mistake and that when a war lacks just aims, individual acts of harming can seldom be proportionate. Finally, the author considers proportionality as a constraint on violence in a war with just aims, claiming that, in some instances, judgments of proportionality in the conduct of war can be surprisingly precise, though much depends on assumptions about certain fundamental issues in moral theory, such as whether there is an ‘agent-relative permission’ to give some degree of priority to one’s own life.

scholarly journals Wired warfare 3.0: Protecting the civilian population during cyber operations

2019 ◽  
Vol 101 (910) ◽  
pp. 333-355
Author(s):  
Michael N. Schmitt
Keyword(s):  
Armed Conflict ◽  
Legal Framework ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Operations ◽  
Civilian Population ◽  
Degree Of Protection ◽  
Precise Degree

AbstractAs a general matter, international humanitarian law is up to the task of providing the legal framework for cyber operations during an armed conflict. However, two debates persist in this regard, the resolution of which will determine the precise degree of protection the civilian population will enjoy during cyber operations. The first revolves around the meaning of the term “attack” in various conduct of hostilities rules, while the second addresses the issue of whether data may be considered an object such that operations destroying or altering it are subject to the prohibition on attacking civilian objects and that their effects need be considered when considering proportionality and the taking of precautions in attack. Even if these debates were to be resolved, the civilian population would still face risks from the unique capabilities of cyber operations. This article proposes two policies that parties to a conflict should consider adopting in order to ameliorate such risks. They are both based on the premise that military operations must reflect a balance between military concerns and the interest of States in prevailing in the conflict.

Synopsis VI: Relief

1986 ◽  
Vol 26 (254) ◽  
pp. 268-278
Author(s):  
Jean de Preux
Keyword(s):  
Armed Conflict ◽  
Prisoners Of War ◽  
Civilian Population ◽  
Occupied Territory

In case of armed conflict, the following groups are entitled to relief:— the civilian population of an occupied territory (Fourth Conv., Art. 59; Prot. I, Art. 69);— the civilian population of a territory under the control of a party to the conflict, other than an occupied territory (Fourth Conv., Art. 23, 38; Prot. I, Art. 70);— prisoners of war and civilian internees in the territory of a Party to the conflict or in an occupied territory (Third Conv., Art. 72; Fourth Conv., Art. 108).

The American-German Conference on Prisoners of War

1919 ◽  
Vol 13 (3) ◽  
pp. 406-449
Author(s):  
Raymond Stone
Keyword(s):  
Geneva Convention ◽  
Prisoners Of War ◽  
Great War ◽  
Military Operations ◽  
The Hague ◽  
The Great War

When, in 1914, the Great War broke upon an astonished world, we rather took comfort to ourselves in the thought that no matter how swiftly and vigorously military operations might be prosecuted, the Conventions of Geneva and of The Hague would insure humane care and chivalrous treatment to the prisoners of war of both sides. Perhaps unconsciously we based our feeling of assurance in this regard upon two assumptions. The first of these was that the terms of those conventions were of themselves legally binding upon the parties to the great conflict; and the second that in this day and generation of high development in the elements of morality and humanity the belligerents would feel themselves morally if not technically constrained to abide by the principles, and to follow, in practice, the honorable provisions of the conventions.There are two particular conventions falling under consideration in this connection. These are, the Convention Respecting the Laws and Customs of War on Land, generally referred to as Hague IV of 1907; and the Convention for the Adaptation to Maritime War of the Principles of the Geneva Convention of 1906, commonly known as Hague X of 1907. Each of these agreements contains a provisional article, practically identical in the two instances, worded substantially as follows:The provisions contained … in the present convention do not apply except between contracting parties, and only if all the belligerents are parties to the convention.

Killing Naked Soldiers: Distinguishing between Combatants and Noncombatants

2005 ◽  
Vol 19 (3) ◽  
pp. 39-53 ◽  
Author(s):  
Larry May
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Just War ◽  
Geneva Convention ◽  
Social Groups ◽  
Civilian Population ◽  
Noncombatant Immunity ◽  
Or Groups ◽  
Just War Tradition ◽  
Principle Of Discrimination

Just war theorists contended that weapons are illegitimate unless they can be used in such a way so as to distinguish combatants from noncombatants. Contemporary international legal theory also draws heavily on the principle of discrimination. The Geneva Convention (IV), as interpreted in the Second Protocol of 1977, says: “The civilian population as such, as well as individual civilians, shall not be the object of attack…Indiscriminate attacks are prohibited.” In both the Just War tradition and contemporary international law, the main justification for such a principle has to do with noncombatant immunity, the idea that only those who are combatants can legitimately be attacked in war. The principle of discrimination also relies on the idea that it is possible to distinguish, in a morally significant way, those classes or groups of people who participate in wars from those who do not. The categories of “civilian” or “soldier,”“combatant” or “noncombatant,” are thought to be stable. Yet, the case of the naked soldier taking a bath challenges such stability in a way that illustrates the serious conceptual and normative problems with identifying such social groups. In this paper I argue that, because of these problems, the traditional principle of discrimination offers no clear, morally relevant, line between those who fight and those who do not. Nonetheless, I argue that a distinction of this sort should be maintained, although one that will restrict tactics in war far more than is normally recognized.

Sign in / Sign up

Export Citation Format

Share Document