Combatants and Civilians in the Jus in Bello

According to the traditional law of war, necessity, proportionality, and distinction form a trio of fundamental principles that govern the conduct of combatants in armed conflict. While the moral and legal status of these principles is uncontroversial, difficulties of application have uncovered ambiguities as to their proper formulation. Some of the most crucial unresolved questions arise at the intersection of the principle of proportionality and the principle of distinction. The principle of proportionality dictates that the amount of collateral damage should not exceed the worth of the military objective. The principle of distinction maintains that combatants may be targeted at any point during an armed conflict, but that civilians are immune to attack. Combatants are thus expected to take additional risks in order to safeguard enemy civilians, but the law of war does not quantify the magnitude of risk combatants should take.

This problem is compounded by contemporary criticism of the principle of necessity and the attempts to curtail its reach by adding a principle of “harm minimization” to the above three.  If the principle of harm minimization were applied to enemy civilians, that would suggest that soldiers should take even greater risks than what is mandated by the principle of distinction to protect civilians.  The traditional jus in bello principles are further challenged by recent developments that place pressure on the line between soldiers and civilians. In particular, terrorists who belong to non-state armed groups fall between these two categories, leading to uncertainty about when and how they can be targeted. Does the intermediate category of “unlawful combatants” provide a solution to this problem or compound it?

The weight assigned to combatants’ lives has further implications beyond the battlefield.  For example, the more risk on the battlefield soldiers are expected to bear, arguably the greater the national obligation to compensate and care for wounded warriors.  An argument for minimizing combatant exposure, on the other hand, would have implications for the technologies we should be willing to use in order to minimize combatant casualties, even if some such technologies pose an increased risk of collateral damage. CERL’s roundtable discussion will foster an interdisciplinary discussion on these and related topics, drawing together academics and practitioners to discuss the concept of combatancy and its policy implications.