Volume 43 | Number 3 Summer 2008
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I. Introduction
The twenty-first century begins, much as the twentieth ended, with estimates as high as hundreds of thousands of civilians being slaughtered in international and civil wars.2 Reports of recent international conflicts tell of civilian deaths exceeding combatant deaths, sometimes by multiples.3 For example, During Israel’s summer 2006 conflict with Hezbollah in Lebanon the Israeli Ministry of Foreign Affairs claimed the deaths of 119 Israeli combatants4 compared to independent reports of Lebanese civilian casualties amounting to at least 700.5 Still more recently, the Iraqi Health Minister shocked the world by reporting that the U.S.-led war to overthrow the Iraqi government from 2003 to 2006 had caused approximately 150,000 civilian deaths (previously reported at less than 50,000).6 That number seems still more unsettling when compared to the estimated number of Iraqi military personnel killed in the war—approximately 12,000.7 Deaths in the coalition forces from 2003 to 2006 numbered fewer than 3000.8 Meanwhile, the civilian body count in the Sudanese civil war in Darfur reportedly continues to approach 250,000.9 These figures have raised sufficient concern with the U.N. Security Council that it has recurrently, since 1999, adopted resolutions deploring civilian casualties in armed conflicts and urging states to comply with their obligations under international humanitarian law.10
The disparities between combatant deaths and civilian deaths merely represent a long-term trend in modern armed conflicts. According to the International Committee of the Red Cross and various U.N. reports, the ratio of civilian to combatant casualties was between 5% and 10% in the First World War and then dramatically leapt to 50% during the Second World War.11 By the 1990s, 75% of all casualties resulting from armed conflicts were civilian, and in some cases the rate has allegedly reached as high as 90%.12 While the ICRC and U.N. trend figures are likely exaggerated by the inclusion of post-conflict casualties—for example, death by disease and starvation resulting from lack of access to normal food, clean water, and medical facilities—in more recent calculations not factored into older figures,13 there is little doubt that civilian casualty rates have increased dramatically.14
All this is, of course, precisely the kind of tragedy that international humanitarian law is designed to prevent. The discrimination principle, long and widely recognized as a rule of customary international law and codified in several core humanitarian law treaties, prohibits combatants from directly attacking civilians and civilian property.15 Discrimination does not, however, offer any protection from the consequences of overzealous or careless attacks on military targets that endanger civilians. To shield civilians from the worst effects of attacks on military targets, the customary norms of necessity and proportionality restrict the modalities of attack. The modern necessity doctrine permits otherwise unlawful attacks on military targets when such attacks are necessary to prevail. By the same token, however, it prohibits combatants from using force endangering civilians or their property except to the extent that such force reasonably appears essential to attaining military victory.16 The proportionality principle, first codified in 1977 in Additional Protocol I to the 1949 Geneva Conventions, prohibits attacks against civilian targets and attacks likely to cause “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”17 Attacks violating the principles of necessity and proportionality are considered to breach what the ICJ has called “intransgressible principles of international customary law”18 and may be considered grave breaches of the Geneva Conventions.19
There are many reasons to believe that discrimination and its related principles of necessity and proportionality should effectively protect civilians from the worst effects of armed conflicts. Among these are the longevity and widespread acceptance of these principles by states,20 the greater degree of detail in modern conventional law to guide the decisions of military commanders,21 and the adoption of new technologies for avoiding civilian casualties, such as GPS-guided bombs and missiles. Given these developments, one might suppose that armed conflicts have evolved to present fewer and milder dangers to civilians than in the past. But as the discussion of civilian casualty rates implies, such a supposition could hardly be more wrong. If any evidence can prove that international humanitarian law has failed to protect civilians from military operations, it is the disproportionate ratio of civilian to military casualties despite the presence of technological and operational factors that should have enabled belligerents to reduce such casualties. Consider that, at most, 18% of the deaths caused by the 2003 war in Iraq were combatant casualties in spite of the coalition forces’ technological supremacy.22 Meanwhile, states continue to trumpet their commitment to protecting civilians from intentional attacks, as the Security Council unanimously did in April 2006, when its members reaffirmed the “responsibility to protect” civilian populations from large-scale attack.23 The divergence between the professed goals of states in adopting international humanitarian law and civilian suffering during modern armed conflicts raises troubling questions about the efficacy of the legal norms protecting civilians.
Perhaps it should not then be surprising that civilian immunity as implemented in international humanitarian law is not universally acclaimed. The implementation of international humanitarian law’s civilian protections clearly leaves much to be desired. But even beyond the law’s pragmatic failure to reduce casualties, recent discussions have attacked the very concept of civilian immunity, questioning its moral coherence, its independence from the ius ad bellum, and its impartiality toward underrepresented classes such as women or ethnic minorities seeking independence or secession. In this Article, I explore both theoretical and operational challenges to civilian immunity to determine whether the concept merits preservation, alteration, or replacement.
On the theoretical score, two fundamental challenges to civilian immunity have become popular in recent years. The first posits that the distinction between civilians and combatants is morally arbitrary and that the relevant ethical standards for subjecting categories of persons to attack in the ius in bello should be some other criteria, such as moral innocence or capacity to harm the belligerent state or its combatants. Some variants of this argument also attack the dualistic nature of the laws of war (ius ad bellum versus ius in bello) and argue for their moral inseparability.
The second challenge has emerged from increasingly common feminist critiques of the ius in bello. Several scholars have criticized the principle of discrimination as reflecting an inherent gender bias. Equating men with “protector” combatant and women with “protected” civilian classes, these critiques conclude that the principle of distinction is both a product and a perpetuator of gender stereotyping. Civilian immunity is rejected by these authors as a fundamentally, and in some views unalterably, flawed concept.
Operational challenges to civilian immunity attack not the concept itself, but its implementation in the law of war. The rules codified in the 1949 Geneva Conventions and their 1977 Additional Protocols—especially those embodying the principles of necessity and proportionality—have long been derided as too vague and inefficacious to justify their inclusion in a major convention.24 Because necessity and proportionality are uncertain in application, impose only tepid duties, and are rarely enforced in any event, their inclusion in international humanitarian law could be considered counterproductive. What is especially interesting about these criticisms is that many states that initially opposed the inclusion of proportionality in Additional Protocol I to the 1949 Geneva Conventions did so not because it constrains the effectiveness of their armed forces, but rather because it does not restrain them well enough.25 This family of challenges invokes jurisprudential weaknesses of humanitarian law, as well as its de facto failure to protect civilians as a basis for questioning whether some aspects of civilian immunity actually inflict harms on civilians that outweigh the benefits provided. Operational criticisms of civilian immunity, then, contrary to theoretical ones, are based on the idea that there is too little civilian immunity rather than too much or the wrong kind. The accelerating rate of civilian casualties lends particular force and urgency to these operational critiques.
Each of these critiques of civilian immunity and its underlying doctrines will be considered and analyzed in the following pages. Ultimately, I do not find any of them sufficiently trenchant to justify rejecting altogether civilian immunity as currently embodied in international law. But each critique makes important observations about the weak points in the implementation of civilian immunity in international humanitarian law, which in turn suggest useful avenues of reform to strengthen civilian immunity in pursuit of a more meaningful and enforceable ius in bello.