Non-combatant immunity and 'just war'

Abstract

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 Quoted from Norman, Richard, Ethics, Killing and War (Cambridge: Cambridge University Press, 1995), p.119. 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'. Sections 1-3 of Article 51 of the Geneva Protocol (additional to the Conventions of 1949) relating to the Protection of Victims of International Armed Conflicts (Protocol I, 8 June 1977). 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.' Section 2 of Article 35 of the Geneva Protocol (additional to the Conventions of 1949) relating to the Protection of Victims of International Armed Conflicts (Protocol I, 8 June 1977). What counts as 'unnecessary', and therefore illegal, suffering in the context of war is a difficult question. The standard of military necessity, which might be thought a promising candidate, is mentioned in the Conventions only as a justification for harm caused to civilians. 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: