The Principle of Non-combatant Immunity

Many of the rules developed by the just war tradition have since been codified into contemporary international laws governing armed conflict, such as The United Nations Charter and the Geneva Conventions. The framework of jus in bello, can be seen, for example, in the UN Protocol for Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1) explicitly attempts to protect the victims of armed conflicts through such law-making approaches. Specifically, Article 51, 2, makes provisions to prohibit indiscriminate attacks, based on the just war principle of discrimination, thus:

The civilian population as such, as well as individual citizens, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. [1]

The influence of these protocols is evident in statements such as the following from an Amnesty International researcher who led two fact-finding missions to Lebanon to investigate allegations of war crimes in the wake of the recent 34-day conflict between Israeli forces and Hezbolla fighters:

One of the cornerstones of international humanitarian law is the principle of discrimination and proportionality. Not everything is allowed in war. Even if you are attacking a legitimate military target, you cannot do so in circumstances where it is going to cause disproportionate harm to civilians.[2]

The constraint on war imposed by discrimination is widely acknowledged as perhaps the heart of the justified conduct of war[3]. In strict use, the principle of discrimination covers property and objects as well as people, and so subsumes the principle of noncombatant immunity, although in practice the terms are often used interchangeably. Discrimination holds that noncombatants have legal and moral immunity from direct, intentional harm. This is because noncombatants are those who themselves are doing no harm. In the just war literature these are sometime called “innocent”, meaning “currently harmless”, as opposed not to “guilty”, but to “doing harm”[4]. Combatants are thus distinguished from noncombatants on account of their immediate threat or harmfulness. As Shue remarks:

The principle of non-combatant immunity is a reaffirmation of the morally foundational ‘no harm’ principle. One ought generally not to harm other persons. Non-combatant immunity says one ought, most emphatically, not harm others who are themselves not harming anyone. This is as fundamental, and as straightforward, and as nearly non-controversial, as moral principles can get.[5]

According to just war theorists, it does not need to be justified how anyone can be a noncombatant even in the midst of war. We are all essentially noncombatants. What needs explaining is how the advent of war creates the exception to this general rule in the form of a class or role of “combatants” who lose this immunity. Walzer argues that those who bear arms lose their right not to be attacked because they pose a danger to others and prevent them from going about their peaceful purposes. Noncombatants, posing no such threat, retain their right[6]. Soldiers are only entitled to target those who are “engaged in harm”. They are not to attack an entire society. To attack civilians purposefully is to undermine the whole rationale of the ethic, because this is unlimited rather than limited war.

The distinction between combatants and noncombatants thus underlies the unity between the justified resort to war and justified conduct of war. This distinction can be grounded in a Christian charity that requires that a Christian defend his neighbour against unprovoked, unjust attack. Thus, to attack the noncombatant as a way of getting at the combatant is a violation of the very principle it is attempting to uphold[7]. Combatant / noncombatant differences can also be explained and justified as simple protection of potential victims from further unjustified harm, by harming those who are engaged in right-violating harm. This is the place where, as the apocryphal quote attributed to George Orwell attests, “rough men stand ready to do violence on our behalf”. Given the right conditions, it is actually immoral to avoid war, when war could be used to defend the innocent.

However, the place to draw the line between combatants and noncombatants is often not clear-cut[8]. Nagel draws the distinction between those contributing to the support of the survival as a human being of members of an opposition’s armed forces does not qualify them as legitimate military targets – they would be engaged in farming and supplying food, for instance, war nor no war[9]. Other occupations, for example, munitions workers, assimilate noncombatants into the ranks of the military to a greater or lesser degree. The lines between combatant and noncombatant can become increasingly blurred when realist discussions of total war are allowed to enter the picture, or considerations that reckon collective guilt on behalf of the populace of unjust regimes for failing to overthrow their oppressive overlords. Nevertheless, just war considerations are directed towards the principles of the war conventions specifying that once identified, noncombatants cannot be attacked at any time.

---

[1] United Nations Office of the Commission of Human Rights. 
Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed Conflicts (Protocol 1) 
Retrieved on November 12th 2006 from http://www.unhchr.ch/html/menu3/b/93.htm

[2] Rosamond Hutt. “Israel and Hezbolla Accused of War Crimes”, The Human Rights Defender 25 (October/November 2006), 8.

[3] Henry Shue, “War” in Hugh LaFollette (ed) The Oxford Handbook of Practical Ethics. (Oxford: Oxford University Press, 2003), 738.

[4] Thomas Nagel. “War and Massacre” in Mortal Questions. (Cambridge: Cambridge University Press, 1979), 70.

[5] Shue, War, 742.

[6] Walzer, Just and Unjust Wars, 145.

[7] Paul Ramsey, War and the Christian Conscience: How Shall Modern War Be Conducted Justly? (Durham, MC: Duke University Press, 1961), 34-39.

[8] See Daniel S. Zupan, War, Morality and Autonomy: An Investigation in Just War Theory. (Aldershot: Ashgate, 2004), 81-93 for an extended discussion of this issue.

[9] Nagel, War and Massacre, 69.