Non-Combatant Immunity and 'Just War'

<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>

Non-Combatant Immunity and 'Just War'

<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 Stopping Power of Norms: Saturation Bombing, Civilian Immunity, and U.S. Attitudes toward the Laws of War

In “Hiroshima in Iran: What Americans Really Think about Using Nuclear Weapons and Killing Noncombatants,” a pathbreaking survey of attitudes toward the laws of war published in the summer 2017 issue of International Security, Scott Sagan and Benjamin Valentino found that Americans are relatively insensitive to the targeting of civilian populations and to international norms and taboos against the use of nuclear weapons. We replicated a key question of this study, where respondents were asked if they would support saturation bombing an Iranian city to end a war. We also introduced some variations into the experiment to directly measure any potential influence of international norms and laws. Overall, our quantitative and qualitative findings are more optimistic than those of Sagan and Valentino's study: Americans do strongly believe it is wrong to target civilians. And in a real-life scenario such as this, a majority would likely oppose such a bombing. These findings suggest, however, that much depends on how survey questions are structured in measuring those preferences and whether legal or ethical considerations are part of any national conversation about war policy.

Introduction

The debate over targeted killing in this volume begins with a joint introduction by the authors, briefly setting out the terms of discussion, and presenting a short overview of the practice—what is targeted killing, and how has it been used, in which conflicts, and by whom. Following some historical examples, mostly from Israel and the United States, the authors distinguish between contemporary signature strikes and personality strikes, and focus their forthcoming debate on the latter, i.e., named killing. While this book touches on a wide array of issues, e.g., civilian immunity, drones, violation of sovereignty, abuse of government power, etc., the authors urge the reader early on to maintain a steadfast focus on the essence of targeted killing debated throughout, namely, the targeting for death of named and identified individuals by our states and leaders.

Civilian Immunity Without the Doctrine of Double Effect

Civilian Immunity (‘Immunity’) is the legal and moral protection that civilians enjoy against the effects of hostilities under the laws of armed conflict and according to the ethics of killing in war. Immunity specifies different permissibility conditions for directly targeting civilians on the one hand, and for harming civilians incidentally on the other hand. Immunity is standardly defended by appeal to the Doctrine of Double Effect (DDE). We show that Immunity's prohibitive stance towards targeting civilians directly, and its more permissive stance towards harming them incidentally, can be defended without appealing to the DDE if agents suffer from overconfidence. Overconfidence is a cognitive bias that affects agents who are required to make decisions in the presence of significant uncertainty.