The Combatant/Noncombatant Distinction in Light of the War on Terror: An Analysis with Pragmatic Suggestions
Cadet First Class Brandon B. Cole
PO Box 3476 USAFA, CO. 80841
Since the end of
Operation Iraqi Freedom,
Both in bello and post bellum,
American and coalition military forces have most often faced a traditional
enemy, one that followed roughly the same just war principles we do. However, in two recent conflicts--the wars in
The combatant / noncombatant distinction is more evident now, in the war on terrorism than in any other previous conflict. What obligations do we have in the way of precautions that we must take before we can engage this enemy in a morally permissible manner? In light of the principles supporting the combatant / noncombatant distinction, I will first discuss the metaphysical combatant / noncombatant distinction. For the purposes of this paper a combatant will be defined as anyone who is in the logical and causal chain of agency who engages in an attempt to destroy you (Murphy p.181). Second I will discuss the epistemic combatant / noncombatant distinction. The most noteworthy epistemic marker distinguishing a combatant is first of all a uniform but secondly the reasonable perception that an enemy combatant is engaging in an attempt to destroy you for example, by pointing a gun at you. Third I will address the “due care” principle, before formulating and discussing a set of practical guidelines for coalition forces to follow when engaging terrorists both during and after war. I conclude by briefly discussing the policy upshot of these guidelines.
Some might make the argument that the war on terror is more of the role of a police action as opposed to the role of a war. Tony Pfaff makes an interesting point when he says
The most salient difference between the two (the criminal model and the war model)
is the room they make for civilian casualties. In the criminal model, police are not
permitted to engage in the courses of action in which civilians will knowingly be
harmed, but soldiers are permitted to do this in war… Police are obligated to use
the least force possible; soldiers the most force permissible (p.2).
It is not my intention to readdress
the debate of whether or not the war on terrorism is a police action or a war
action nor is it in the scope of this paper.
I am simply saying that it is this idea that has caused the combatant
role of coalition forces to change in post-war
Police engage a
threat in a precautionary manner, but as evident in post-war
A Discussion of the Metaphysical Combatant / Noncombatant Distinction
In war, soldiers
must take into account distinctions that make someone a combatant instead of a
noncombatant. With the war on terrorism,
the principle of distinction, a fundamental tenet of jus in
line soldiers constantly have to make decisions based on their understanding of
the fundamental structure of the reality of a war or post-war environment. The most important reality that the line
soldier must come to grips with is the distinction between combatants and
noncombatants. This reality in post-war
With the idea of a combatant defined, we must now delve deeper into the metaphysical reality of current distinctions between a combatant and noncombatant concerning the line soldier. Without question, then, Iraqi fielded forces described above fall into the logical and causal chain of agency. Murphy will say combatants must belong to the causal and logical chain of agency, if not they cannot be considered a combatant (Murphy p.182). Beyond the frontline line soldier whose job it is to fight a war, there are many who can be deemed as an individual engaged in a threat to destroy you, that fit into the chain of agency. A combatant must bear not only a contingent but necessary connection to the war effort. Murphy uses the example of the farmer to draw the delineation. A farmer harvests crops that provide nourishment for soldiers, but Murphy will say this is a qua human need not a qua soldier need. A qua human need is a need that every human being needs for survival; food and water. A soldier needs food for his qua human survival. On the other hand the factory workers that produce ball bearings for civilian cars as well as military vehicles could conceivably fall into both the logical and causal chain of agency by producing things that fill the qua soldier need. Therefore the farmer should not be considered a combatant, despite the fact that his crops may be feeding soldiers. Conversely the general who is far away from the battlefield giving orders to the soldiers is providing the instructions needed for the soldiers to do their job and thus aiding the soldier qua soldier not qua human just as the ball bearing factory worker is (Murphy p. 182).
The scenario of the general provides the necessary link to assume combatantcy. Whereas the farmer is only causally connected to the soldier, the general is both causally and logically connected and therefore a combatant. Many other scenarios qualify people as combatants. For example the president of a nation or their law making government officials who are responsible for the soldiers going to war are also causally and logically connected and could be considered combatants. Murphy goes one step beyond and does an analysis of potential borderline cases. In many instances there are people who work in factories that produce products for both soldierly needs and human needs. For example Murphy talks about Dow Chemical Company which produces saran wrap for the human being and napalm for the soldier. With people who work in a factory that solely makes bombs, it is safe to call them combatants however with people who work in dual use factories, Murphy provides the following analysis.
I should hope that reasonable men would accept that the burden of proof lies on those claiming that a particular group of persons are combatants and properly vulnerable. I should hope that men would accept, along with the famous principle in the criminal law, the principle “noncombatant until proven otherwise” and would attempt to look at the particular facts of each case as carefully and disinterestedly as possible (p.182).
A Discussion of the Epistemic Combatant / Noncombatant Distinction
Epistemically speaking in past conflicts combatants were distinguished from noncombatants primarily by the wear of a uniform. The uniform served as a traditional marker in combat for forces on both sides to limit the potential for non-combatants being accidentally engaged as combatants. Therefore it was safe to assume that if an individual was wearing the uniform of the enemy and carrying a weapon openly, that the distinction was made and that individual could be engaged in a morally permissible manner. This is no longer the case in the war on terrorism.
the onset of Operation Iraqi Freedom, Iraqi forces were distinguished by this
traditional manner and it was plausible for coalition forces to deem them as a
threat towards their destruction. In
Murphy addresses the idea that for a soldier to engage a target in a morally permissible manner he must consider the principle of reasonability before taking action. This principle is also a product of the premise that a combatant is a person engaged in an attempt to destroy you. However when traditional wartime markers are not used the principle of reasonability not only becomes harder to weigh out but more important for the individual soldier to be able to use when making a decision. The line soldier must be able to reasonably assume that the person or persons they are about to engage is someone who is about to engage in an attempt to destroy them (p.181).
order to more clearly delineate the principle of reasonability I will look at
some anecdotal examples. It has been
determined that if an enemy combatant is on the battlefield in a uniform
wielding a weapon at you it is reasonable to assume that he is a combatant and
one who can be engaged in a morally permissible manner. As easy as it is to engage that enemy
combatant through the principle of reasonability it is just as easy to
determine through this principle that a baby in the middle of a battlefield is
not a combatant and cannot be engaged in a morally permissible manner. Epistemically speaking the aforementioned
examples set a clear decision as to the proper action that should be
taken. However as the line of
reasonability falls more towards the center and away from the extremes weighing
through the principle to form a morally correct action becomes difficult. For example let’s look at a child
soldier. Say you are a solider who
witnesses a child carry a package into a café and seconds later the café blows
up as you see the child running from the scene.
From that moment forward as a solider you might be inclined to engage a
child if you were to witness a similar situation. The principle of reasonability would say even
so it is reasonable to assume that most children are not combatants and thus
must not be engaged as a combatant absent clear signals of maleficent intention
otherwise. This is the difficulty
coalition forces are facing in post-war
Unpacking Reasonability and “Due Care”
understand the principle of reasonability for the purposes of post-war
Two days after the above incident took place a min-van full of women and children failed to abide by the checkpoint warnings to slow down and come to a stop, was engaged by an Army platoon where they killed seven women and children and wounded two. An embedded journalist from the Washington Post quoted an Army captain addressing his platoon leader by saying, “You just killed a family because you didn’t fire a warning shot soon enough” (McCutcheon p.2). It is from this case study that we must determine what the principle of reasonability means in the war on terror.
current case study of post-war
Yes, we have reviewed our rules of engagement for operations around checkpoints. And we have those procedures in place that allow for warning shots before we take aim and shoot deadly fire at the vehicles that we may think are either attempting to bypass our control points or are attempting to harm our soldiers. So those rules of engagement are well in place and they have been trained (p.3).
What the current ROE’s are doing to the line soldier is taking their judgment out of their hands
and putting them on a piece of paper that may not be the right course of action for a given situation. By having set ROE’s that only indicate in many cases one course of action is failing to provide the line soldier with the ability to use the principle of reasonability. The military command and control structure is in turn putting the importance of the welfare of the military member above the welfare of the non-combatant which ultimately is not providing for the “due care” of the non-combatant. Looking back at the checkpoint case study that was full of women and children, Murphy would say that although they failed to stop at the checkpoint, it was not reasonable to assume that they fit both the logical and causal chain of agency. For Murphy a mini-van full of women and children is similar to a child coming out of a café. Logically it is wrong to assume that they are combatants. Although logically Murphy would say it is wrong to assume the mini-van full of women and children are combatants, pragmatically speaking we must take into account other variables such as the type of counter-measures in place. With this particular case study it is important to draw distinctly upon the warning shot and how critical it is that they are fired before coalition forces engage a target to ensure the most due care possible.
The proposition of this very
common scenario and others like it brings into the equation the idea of “due
care”. Michael Walzer will say that
civilians have a right to “due care” that must be taken into consideration. He explains “due care” as a calculation of
relative value and urgency. For any
given situation where civilians may be harmed the relative value of military
necessity and the urgency of that necessity must be weighed before any action
can be taken. More often then not “due
care” and proportionality come into conflict.
Walzer accounts for this when he says, “Even after the highest possible
standards of care have been accepted, the probable civilian losses may still be
disproportionate to the value of the target; then the attack must be called
off” (Walzer 156). What Walzer is
leading to is the idea that if the relative value and urgency cannot be
fulfilled then it is the job of the military soldier to take the greater risk
of potentially losing his life if the possible outcome may be the death of a
noncombatant. Walzer talked about the
bombing of occupied
for the coalition soldier in post-war
When posed with the current ROE’s, and with the loss of both soldier and non-combatant lives climbing, something needs to be done to protect our soldiers while accomplishing the mission and providing for the best “due care” of non-combatants. With the line soldier acting as the judge and jury when confronting potential combatants, we must do more to provide them the best possible counter-measures for their safety and that of non-combatants. In light of the principles supporting the combatant / non-combatant distinction, I formulate a set of practical guidelines for coalition forces to follow when engaging terrorists both during war and in post-war. These guidelines will start by requiring operational units to (1) have combat linguists, (2) take adequate notification countermeasures to ensure both that noncombatants are given the chance to exercise agency and that combatants can realistically use the epistemic principle of reasonability and (3) supply educational programs to give the line soldier the tools they need to identify the modern belligerent when traditional markers such as uniform wear no longer apply.
requiring operational units to have combat linguists coalition forces are
providing greater “due care” to non-combatants by taking out any possible
language barrier that these forces may encounter in a foreign area of
operation. Currently the countermeasures
that coalition forces are taking in post-war
this paper I have explored the combatant / noncombatant distinction in the
context of the war on terrorism and more specifically post-war
McCutcheon, Peter. “Iraqi women and
children shot at
2003. American Broadcasting Corporation.
Murphy, Jefferie. “The Killing of the Innocent.” Moral Dimensions Of The Military Profession.
Pfaff, Tony. “Non-combatant Immunity and the War on Terrorism.” Online posting.
Sanchez, Ricardo. News Briefing.
Transcripts. 25 September 2003.<http://search.epnet.com/direct.asp?an=32V2444636
Walzer, Michael. Just
and Unjust Wars.