Hostname: page-component-84b7d79bbc-g5fl4 Total loading time: 0 Render date: 2024-07-30T22:28:38.606Z Has data issue: false hasContentIssue false
  • English
  • Français

Killing Naked Soldiers: Distinguishing between Combatants and Noncombatants

Published online by Cambridge University Press:  28 September 2012

Larry May
Get access Rights & Permissions [Opens in a new window]

Abstract

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.

Type
Articles
Information
Ethics & International Affairs , Volume 19 , Issue 3 , December 2005 , pp. 39 - 53
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Hugo Grotius, “Prolegomena,” sec. 25, in On the Law of War and Peace, trans. Frances W. Kelsey (Oxford: Clarendon Press, 1925), p. 18.

2 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (June 8, 1977), art. 13. The same wording occurs in Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I) (June 8, 1977), art. 51.

3 On this point, see the excellent discussion in Michael Walzer, Just and Unjust Wars (New York: Basic Books, 2000 [1977]), ch. 9.

4 1991 Operation Desert Storm, “US Rules of Engagement: Pocket Card,” reprinted in Adam Roberts and Richard Guelff, eds., Documents on the Laws of War, 3rd ed. (Oxford: Oxford University Press, 2000), p. 563.

5 Roberts and Guelff, eds., Documents on the Laws of War, p. 10. Hors de combat literally means “out of the fight.”

6 Hague Convention (IV) Respecting the Laws and Customs of War on Land, Annex to the Convention: Regulations Respecting the Laws and Customs of War on Land (1907), sec. I, ch. I, art. 1. See Roberts and Guelff, eds., Documents on the Laws of War, p. 73.

7 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (August 12, 1949), art. 13. See Roberts and Guelff, eds., Documents on the Laws of War, p. 202.

8 Ingrid Detter, The Law of War (Cambridge: Cambridge University Press, 2000), p. 26.

9 See the important discussion of this issue in Robert Holmes, On War and Morality (Princeton: Princeton University Press, 1989), ch. 6.

10 Averroes, “Jihad” [from “Al-Bidaya”] (c. 1167), para. 3, in Jihad in Classical and Modern Islam, ed. and trans. Rudolph Peters (Princeton: Markus Weiner Publishers, 1996), p. 33.

11 Francisco Suárez, “On War” (Disputation XIII, De Triplici Virtute Theologica: Charitate) (c. 1610), in Selections from Three Works, trans. Gladys L. Williams, Ammi Brown, and John Waldron (Oxford: Clarendon Press, 1944), pp. 845–46.

12 Ibid., p. 847.

13 Grotius, “Moderation with Respect to the Right of Killing in a Lawful War,” sec. 8, in On the Law of War and Peace, p. 734.

14 Ibid.

15 McMahan, Jeff and McKim, Robert , “ The Just War and the Gulf War ,” Canadian Journal of Philosophy 23, no. 4 (1993 ), pp. 501 – 41.CrossRefGoogle Scholar

16 Grotius, On the Law of War and Peace, p. 735.

17 Ibid., p. 736.

18 Ibid., p. 737.

19 Ibid., p. 739.

20 Ibid., p. 741.

21 Some might argue that it would matter whether one were fighting an unjust war or not. I attempt to defeat such arguments in another paper , “ Collective Responsibility, Honor, and the Rules of War ,” Journal of Social Philosophy 36, no. 3 (2005 ), pp. 289 – 304.CrossRefGoogle Scholar

22 The very best recent essay on this topic is by Kutz, Christopher, “ The Difference Uniforms Make: Collective Violence in Criminal Law and War ,” Philosophy & Public Affairs 33, no. 2 (2005 ), pp. 148 – 80.CrossRefGoogle Scholar

23 Walzer, Just and Unjust Wars, p. 143.

24 Robert Graves, Good-bye to All That, rev. ed. (New York: Anchor Books, 1958), p. 132, quoted in Walzer, Just and Unjust Wars, p. 140.

25 Walzer, Just and Unjust Wars, p. 140.

26 Ibid., p. 138.

27 Ibid., p. 145.

28 Ibid., p. 144, emphasis added. By “class” Walzer does not mean socioeconomic status but merely “group.”

29 Ibid., p. 142.

30 Ibid., p. 143.

31 Another possible line of argument is that a person who fights in justified self-defense can never lose the right not to be killed. If the point here is to link jus ad bellum to jus in bello considerations, then I would reject this move.

32 Walzer notes this himself in Just and Unjust Wars, p. 139: “In the course of a study of combat behavior in World War II, S.L.A. Marshall discovered that the great majority of men on the front line never fired their guns.” Walzer provides the following citation: S.L.A. Marshall, Men Against Fire (New York, 1966), chs. 5 and 6. Some scholars have called this claim into question.

33 Some might dispute the idea that the just war tradition does concern such consequentialist factors. I would respond that one need only consult the work of Suárez or Grotius, two paradigmatic just war theorists, to see that some just war theorists mixed consequentialist and deontological factors.

34 For an opposing view, see McMahan, Jeff , “ War as Self-Defense,” Symposium: War and Self-Defense, Ethics & International Affairs 18, no. 1, pp. 75 – 86.CrossRefGoogle Scholar

35 See ch. 4 of my book-length manuscript, War Crimes and Just Wars, where I explain why humaneness rather than justice is the cornerstone of the rules of war.

36 Indeed, see my books: Larry May, The Morality of Groups (Notre Dame, Ind.: University of Notre Dame Press, 1987); and Larry May, Sharing Responsibility (Chicago: University of Chicago Press, 1992).

37 Some might argue that getting soldiers to think more is not necessarily a good thing, for they may then act on their emotions, such as their feelings of revenge. I would counter that there are offsetting emotions, such as compassion, as well as other considerations that would normally make the soldier shoot less if he thought more.