Volume 43 | Number 3 Summer 2008
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II. Ethical Challenges to Civilian Immunity
War necessarily involves violence, and so long as we agree that killing people can at least sometimes be justified, the task of an ethically defensible international humanitarian law must be to identify who may be killed, under what circumstances, and how such killing should take place within a morally acceptable paradigm. Currently, international humanitarian law embodies a fairly simple model—grounded in the conviction that it is not morally acceptable to kill civilians if such killing can be avoided—that applies upon commencement of an armed conflict: Civilians and civilian property are immune from direct attack.26
Based on the same conviction, when a military objective cannot be achieved without unintended civilian casualties, the attack may only go forward if the attacker complies with the relevant rules of international humanitarian law—in this case, necessity, proportionality, and related rules codified in Additional Protocol I—to minimize unnecessary civilian casualties.
Active members of the armed forces (i.e., those who have not surrendered, become prisoners of war, or been rendered hors de combat by illness or wounds) are always subject to direct attack, apparently based on the conclusion that it is always morally acceptable to kill such combatants, even when not factually necessary.
While this is the current ethical model of international humanitarian law, it is certainly not the only one possible. As the model makes clear, the beliefs underlying civilian immunity appear to be quite simple—in moral terms, combatants’ lives have no value requiring legal protection by belligerents, while civilians’ lives have a great deal of it. Civilian immunity is supported by chivalric military values, epitomized by MacArthur’s quotation in the prolegomena attributing to combatants the role of a protector class and to civilians the role of a protected class. To those trained in the European school of human rights philosophy, with its paradoxical Kantian foundation of equal and inviolable human dignity27 and Hegelian superstructure attributing to the reified state an inherent right to claim the loyalty and even lives of its citizens,28 the concept of discrimination may seem unproblematic, or at least somehow reconcilable. Because slaughtering the unarmed is especially the repugnant to human rights values, it may seem superfluous to back confidence in the rectitude of the principle of civilian immunity29 with a careful analysis of the ethics underlying international humanitarian law. But philosophers make it their business to raise such questions, and they have done so vigorously.
Diplomats, politicians, nongovernmental organizations, the media, and other international elites commonly label civilians with adjectives like “innocent” and “defenseless”30 (in MacArthur’s terms, “weak and unarmed”), implying through these terms that killing such persons would be morally reprehensible. By definition, civilians are indeed unarmed and relatively defenseless, with only a few exceptions unimportant here. These labels are in effect assertions of objective fact—whether a specific civilian has taken up arms in pursuit of military activity can be ascertained through the production of evidence.31 The term “innocent” differs from these others; it connotes immunity to moral condemnation, an assertion of status capable of verification only pursuant to an accepted ethical theory. This difference between the kinds of terms applied to civilians is highly significant for purposes of ethical analysis. One can be defenseless, weak, and unarmed without being innocent, just as one can arm and defend oneself while maintaining moral innocence (i.e., without necessarily violating any rules of right moral conduct). Ethical critiques of civilian immunity can be divided into two overlapping classes based on this distinction. Both classes share the assumption that killing can only be justified if the target is morally culpable in the sense of intentionally directing his or her activities to the attainment of an immoral objective.
The first class of critiques focuses on the claim of “innocence” to determine the justifiable subjects of attack. In most of these views, the justice of the underlying armed conflict and each individual’s relation to it is inseparable from the question of moral innocence. Morally innocent persons are those who do not actively seek to attain an unjust end. Such persons should be immune from attack, whether they are civilians or combatants. Morally culpable persons, conversely, should be subject to attack regardless of their status as civilians or combatants.
The second class shifts the focus away from the justice of the armed conflict and evaluates instead the combatant’s decisionmaking within the conflict as a fixed, morally neutral context. These critiques may accept international law’s dichotomization of ius ad bellum and ius in bello without concluding that this classification morally justifies subjecting combatants as a class to lawful attack or civilians as a class to immunity from attack. Critiques of this kind compare the situation of the combatant choosing targets to that of an individual defending himself from an external attack and thus engage in a process of moral reasoning by analogy. The conclusion is that the justification for immunity from attack should turn neither on a person’s membership in the class of combatants or civilians nor on the person’s moral innocence or culpability respecting the armed conflict as a whole, but rather on the direct threat of harm posed by the person (civilian or combatant) to a combatant or his armed forces. In other words, this class of critique seems to correspond less to the claims that persons should be immune from attack because they are “innocent” than to claims that they should be immune because they are “unarmed” and “defenseless” (or, more accurately, offenseless). Each class of critiques will be evaluated in turn.
A. Moral Innocence and the Just War
The assertion that civilians as a class are “innocent” cannot be more than a figure of speech. Nobody could reasonably believe that mere membership in the class of civilians constitutes automatic exoneration from moral blame for the state’s wartime conduct. Civilian industrialists and politicians who have engaged in morally reprehensible conduct such as enslavement and genocide during armed conflicts have been convicted of and punished for war crimes and human rights violations by international criminal tribunals for this reason.32 In an ethical analysis, moral innocence is a question of conduct and intentions. The context in which the conduct and intentions occurs, such as membership in the class of civilians or combatants, is relevant but merely one factor in the analysis rather than the sole determinant of the conclusion. Some authors have accordingly argued that discrimination as a rule of international humanitarian law is morally indefensible because, notwithstanding the qualification of civilians as “innocent,” civilian immunity fails to correspond with any coherent conception of moral innocence. Because such arguments typically account for the justice or injustice of the underlying war effort, it is necessary to take a brief detour from the ius in bello to the ius ad bellum.
Ius ad bellum relates solely to the legality of initiating the use of armed force. That subject is, like international human rights law, peculiarly susceptible to ethical analysis. The attainment of a just world order under law presupposes constraints on organized violence between and within states. A primary function of international law is to adopt and enforce legal rules defining when the use of military coercion is legitimate and limiting its legitimacy to situations where it is morally justified. The ius ad bellum contributes to this objective by defining the circumstances under which states may resort to armed force. Ius ad bellum is located in both customary international law and the U.N. Charter, but has little place in either the Hague law or the Geneva law, which define most of the ius in bello rights and obligations of states after hostilities have commenced.33
The ius in bello governs the specific conduct of military operations. It presupposes the existence of an armed conflict, and it applies regardless of the legality (or illegality) of any belligerent’s position under the ius ad bellum. Ius in bello contains rules governing the conduct of hostilities by belligerents and their combat forces in both legal and illegal wars without distinction. Its goal, like the goal of ius ad bellum, is to limit violence to morally justifiable purposes and amounts. But the ius in bello applies in much more varied factual circumstances and must, therefore, be much more detailed and complex. Ius in bello does not merely determine the legality of a single decision of a state; it governs innumerable decisions by military commanders at multiple levels of the chain of command in every kind of pre-combat, combat, and occupation situation.
A rejection of international law’s position, in which ius ad bellum is divorced from ius in bello, underlies much criticism of civilian immunity. The temptation to reject any specific killing unless morally justified in a long view—in this case, in pursuit of a just casus belli—is understandably strong. The weighing of military advantage against the loss of civilians lives or property must be undertaken in the context of the worthiness of the objectives of the war. Professor Hurka argues:
If “military advantage” justifies killing civilians, it does so only because of the further goods such advantage will lead to, and how much it justifies depends on what those goods are. Compelling though it is, this view has the radical implication that no act by soldiers on a side without a just cause can satisfy proportionality: if their acts produce no relevant goods, they can never be just. . . . [I]f we consider the morality of war rather than its legality, the independence of its two branches cannot be maintained. Whether an act in war is in bello proportionate depends on the relevant good it does, which in turn depends on its ad bellum just causes.34
One ethical objection to civilian immunity in international law, then, is its basis in a strict division between ius ad bellum and ius in bello.
At the very least, in this view, killing a combatant who is pursuing a just objective in a just manner should be considered immoral and, therefore, illegal. This is the first step to breaking down a flat rule of civilian immunity into a more complex rule conferring immunity from attack on combatants pursuing a just war as well. Indeed, the chief British prosecutor at Nuremberg tried to make precisely this argument: “The killing of combatants in war is justifiable . . . only where the war itself is legal. But where a war is illegal . . . there is nothing to justify the killing, and these murders are not to be distinguished from those of any other lawless robber bands.”35 The corollary of this principle is that combatants recruited to fight unjustly an attacker waging a just war can defend themselves, if at all, with only minimal force. Moreover, combatants involuntarily waging an unjust war should receive greater protection than their more willing fellow combatants. As Jeff McMahan has argued, the view that the justification for self defense against Innocent Attacker (i.e., one who fights unwillingly) is the same as the justification for self defense against a Culpable Attacker (i.e., one who fights willingly) is implausible. If it were true, then, “whatever restrictions there are on the defensive use of violence against an Innocent Attacker would also apply to self-defense against a Culpable Attacker. But intuitively the restrictions on self-defense against an Innocent Attacker are considerably more stringent.”36
The second step depends on the assertion that it is more morally justifiable to attack civilians contributing to an unjust war than to attack combatants contributing to a just war. Civilians voluntarily contributing to an unjust war, either morally or materially, are not “innocent” in the ethical sense, but are rather offenders against international peace and, consequently, more appropriate targets for attack than combatants prosecuting a just war. The logic of this view can be extended still further, justifying the incidental killing of some morally innocent civilians in pursuit of the just war to the extent that such killing does not outweigh the morally justifiable goals of the armed conflict itself. In other words, unless one is a very strict Kantian, the bellum iustum may justify killing a certain number of morally innocent civilians to prevent another, more morally reprehensible result from occurring, such as the deaths of many more innocent persons, combatant, or civilian.37
The consequences of an individual combatant’s actions under the ius in bello should partly depend, then, on the moral justifiability of his or her state’s decision to use armed force under the ius ad bellum. If that decision is a just one, killing morally culpable civilians may arguably be as justifiable as killing morally culpable combatants. Conversely, intentionally killing civilians or combatants contributing to a just war cannot be morally permissible. If the state’s resort to armed force is not morally justified, no attack by that state’s combatants can be morally justified.
It does not follow from these observations that every citizen of a state waging unjust war should be subject to indiscriminate slaughter. What does follow is that some persons in a state waging unjust war may be innocent of intent to further that war, while others may have culpable intent, and innocence does not necessarily depend on one’s status as a civilian or combatant. Contrary to popular perceptions of combatants as aggressive and mercenary and of civilians as innocent and inoffensive, specific members of the military may engage in an unjust armed conflict unwillingly, while civilians may actively and intentionally support or contribute to a conflict.38 For example, an attacking combatant may have been conscripted into service against his will, just as a civilian may politically support an unjust war effort. Indeed, a civilian journalist, clergy, or celebrity may encourage or prolong the conflict by rallying public support for it and encouraging voluntary enlistment, thereby presenting a more tangible (though indirect) threat to the opposing belligerent than an individual soldier who participates involuntarily could ever pose. In this sense, some combatants may be morally innocent of any intention to commit a harmful or unethical act, while the opposite may be said of some civilians. The distinction between combatants and civilians as lawful targets of attack, in this perspective, is little better than morally arbitrary.
These critiques of civilian immunity have strong theoretical appeal. The concept of binding the ius ad bellum to just war theory has long been a project promoted by international lawyers and diplomats.39 States and their predecessors, empires, have recurrently sought to justify their resort to arms on moral grounds throughout history, beginning at least with the Roman ius fetiale and advanced most concretely through the U.N. Charter’s prohibition on the use of force for territorial aggrandizement and other aggressive purposes. Indeed, the very purpose of ius ad bellum is to deter war and sustain a just world public order under law. Whether the world public order is “just” presupposes an ethical judgment, inviting precisely the kinds of moral analysis that just war theories provide.
As for the insistence that within this just war context, the morally relevant criteria that should guide legal rules specifying appropriate targets for attack is moral innocence rather than membership in the civilian or combatant class, this theory also has its charms. It is merely tautological to observe that moral culpability and innocence are characteristics not of entire classes of persons but of the individuals within those classes. Except in a theory of collective responsibility for military organizations or states, a theory long rejected by the ius in bello,40 the treatment of individuals should correspond to their personal moral characteristics. From the perspective of a single combatant deciding whether a single “enemy” is an ethically acceptable target of attack, then, both the context in which killing occurs (just or unjust war) and the intentions of the individual target are morally relevant.
As is often the case with theoretically appealing arguments, however, this one does not work out in practice. Attempting to translate strict ethical analysis into concrete rules of international law would fail to eliminate the moral arbitrariness of the current rules and would create entirely new ethical problems. To understand why, it is first necessary to consider how the conditions under which judgments about the legality of an act under the ius ad bellum differ from similar judgments under the ius in bello.
The decision to deploy armed force is generally a one-time decision—either the potential belligerent attacks or not, invades or not, defends or abdicates. International politics often provide ample opportunity for moral deliberation before a decision is made to resort to armed force, making the grounding of ius ad bellum in just war theory not merely desirable but feasible. The decision to use armed force is, moreover, subject to accepted legal principles limiting the use of force mainly to situations of individual or collective self-defense, current or anticipatory, and to humanitarian intervention in limited circumstances. In cases of borderline legality, states often have the time and resources to research the facts that would enable a reasonably certain judgment of the proposed use of force’s compatibility with the ius ad bellum.
The arguments for integrating moral theory into the decision of a state to employ armed force apply less readily in factually rich combat situations. Combatants, whose behavior is currently governed only by ius in bello, typically lack the luxuries of careful and objective legal analysis and time to consider and weigh options when making tactical decisions. One implication or stipulation of moral innocence critiques is that they require each combatant to objectively evaluate the morality of a specific individual act of attack, including consideration of the justice of the cause for which the combatant and his target fights. Aside from the unavailability of objective information to combatants in the field, the ius in bello cannot provide a precise moral compass to combatants for judging the justice of harming individual targets. Such a project would be hopelessly utopian. First, the justice of a resort to armed conflict is rarely black and white and never uncontested. The world community lacks an impartial general arbiter of which wars are just and which unjust,41 and the states and their populations cannot always be trusted to judge objectively the merits of their own case. As Francis Bacon observed, “[t]here is that justice imprinted in the nature of men, that they enter not upon wars (whereof so many calamities do ensue) but upon some, at least specious, grounds and quarrels.”42 Political and military elites never admit when they are engaging in an unjust war, or even in a war of outright aggression and territorial aggrandizement. They invent some nontrivial argument to justify the most naked aggression, as Iraq did when invading Kuwait in 199043 and as Argentina did when invading the Falkland Islands in 1982.44 In both cases, historical and moral claims to the territory were used to justify the armed aggression. As Edmund Spenser observed four hundred years ago:
For never wight so evill did or thought,
But would some rightfull cause pretend, though rightly nought.45
Potential combatants themselves cannot reasonably be expected to possess the legal expertise, knowledge of political facts, and psychological neutrality to evaluate the justice or legality of these claims fully and impartially, particularly where the belligerent has not made full information about the conflict publicly available. International humanitarian law merely accounts for the normally subjective and subheroic human nature in refusing to punish a belligerent’s citizens for not coming to their own objective, individual assessment about the justice and legality of their state’s resort to armed attack.
Even if potential combatants could objectively identify unjust wars, it would be unrealistic to require them to resist participating when domestic law mandates their enlistment or cooperation. Armed conflicts sweep up the populations of the belligerent states regardless of the most strident individual moral objections of members of the population, even in democratic states. The threat of enforcement of domestic law—which among its penalties for refusal to register for a draft may include imprisonment or capital punishment—is far more immediate and threatening than the latent possibility of enforcement of international law at some future point. Requiring combatants facing imminent imprisonment or execution to engage in such delicate speculations defies credibility. If their activities are to be governed by regulations, the legal rules must be more definite than just war theory currently makes them.
If demanding that combatants objectively and accurately assess the justice of the decision to resort to armed conflict is unrealistic, how much more unrealistic is the expectation that they could identify which civilian and combatant adversaries are morally culpable and which are morally innocent? A soldier or bomber pilot has virtually no means to judge the intentions of his target. The principle of distinction, in contrast, can claim the advantage of simplicity and clarity. Lawful combatants by definition wear distinct uniforms and emblems and carry their arms openly regardless of their personal misgivings about the conflict in which they play a part.46 Except by surrender, they have no way of communicating clearly to the opposing combatants their moral innocence. As Professor McMahan concludes, it is impossible for pragmatic reasons to distinguish between those willingly posing a threat of harm and those doing so unwillingly.47 Similarly, a combatant may not be able to distinguish readily between a civilian intentionally contributing to an unjust war and a civilian objecting to the war. And in any case there are degrees of moral culpability (e.g., ambivalence or apathy about, or qualified support of, an unjust war), few of which can be judged at a glance, and some of which presumably should not subject one to direct military attack.
All this does not mean, however, that the ius in bello is doomed to moral arbitrariness. A flat rule of civilian immunity unquestionably results in some morally culpable civilians avoiding attack and some morally innocent combatants dying, but it creates offsetting benefits. Given the reality that combatants may find themselves agents in an armed conflict of indeterminate justice and facing opponents of uncertain innocence, the challenge is to craft rules of international law that preclude indiscriminate killing. International humanitarian law sacrifices the unattainable standard of universal individual justice in pursuit of the more feasible goal of minimizing the total number of unnecessary casualties given the realities that combatants necessarily face.48
A potent ethical argument for a blanket rule of civilian immunity and combatant nonimmunity, then, is that in the political, psychological, and sociological context in which international law must operate, the rule is both practical and progressive in serving the worthy goal of diminishing the total human suffering caused by armed conflicts.49 In the St. Petersburg Declaration of 1868, the great powers declared:
Considering:
That the progress of civilization should have the effect of alleviating as much as possible the calamities of war;
That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy;
That for this purpose it is sufficient to disable the greatest possible number of men . . . .50
In effect, the St. Petersburg Declaration set a policy, continuing to the present, designed to keep the devastation caused by armed conflicts within the bounds of weakening enemy military forces. Any system of morality that values human life and happiness and consequently seeks to minimize unnecessary suffering deplores legal norms not narrowly tailored to these ends. The discrimination, necessity, and proportionality principles are designed to serve this end by limiting de lege the objects of attack to a subset of all persons and property that are de facto susceptible to attack. The discrimination principle does so by permitting only attacks that, as a general rule, will not contribute significantly to the resolution of the conflict. Even if international law achieves that goal imperfectly, it does so through rules that are (or at least could be made to be) applicable to the battlefield.
The justification for a universal license to harm combatants, then, is that their intentions can pragmatically be judged only as a class (i.e., by the hostile intentions of the military force to which they belong). The judgment whether some individuals in a class identified as a legitimate target of attack (combatants) may not “deserve” death, while others in a different class identified as immune from attack (civilians) do “deserve” death necessarily transcends the scope and competence of the ius in bello.51 Moral desert simply does not and cannot enter into its calculations. The role of humanitarian law, given the inevitable occurrence of some armed conflicts of whatever nature, is to constrain belligerents from spreading unnecessary devastation without unduly impinging on their perceived self-interest in achieving military victory. Although this approach ignores important theoretical ethical issues, it is not itself ethically neutral or arbitrary.