May the Well-Being of Non-Combatants
Be Directly Attacked as a Tool of War?
presented
to the
Joint
Services Conference on Professional Ethics
Robert G
Kennedy, PhD
Professor
of Management and Catholic Studies
Mail
#55-S
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e-mail:
rgkennedy@stthomas.edu
The Principle of Non-Combatant Immunity (NCI), or Discrimination, is well established in contemporary discussions of just war theory and in international law. In its most general form it prohibits direct, intentional attacks upon non-combatants.[1] Nevertheless, despite its broad acceptance, a number of questions about its meaning and application remain unresolved. The purpose of this paper is to address some of these questions and to propose resolutions for further discussion.
Who are non-combatants?
One of the characteristics of modern Western civilization is
a change in the conception of warfare. The American Civil War is sometimes
called the first modern war, and perhaps it may be just that if one focuses on
the introduction and use of new technologies (e.g., railroads, telegraph,
repeating weapons, and so on). On the other hand, the Napoleonic Wars
introduced in practice a conception that has played an important, and deeply
mischievous, role in the major wars of the 20th century. This is the idea that
war is rightly a conflict between whole peoples, in which virtually everyone
has a role to play in carrying the war forward.[2]
To be sure, there are any
number of examples in history of whole communities (cities, for instance, or
tribes) that drew nearly every member into the activities of war, but these
involved relatively small numbers of people or were occasioned by emergencies
(such as a siege). Though it would rarely have been expressed this way, one of
the characteristics that distinguished civilized peoples from barbarian tribes
for much of Western history was the fact that war for the civilized peoples was
the business of only a designated portion of the community.
In the
To be sure, non-fighters often
suffered the consequences of war, especially when war entailed the siege of
cities. The distinction of fighters from non-fighters often failed to convey to
the non-fighters any significant protection from assault, injury, or even
death. Gradually during the Middle Ages efforts were made to extend protections
to non-combatants through prohibitions enacted by the Church and enforced by
ecclesiastical penalties. These protections were first extended to clerics and
later, in principle at least, came to include those who had not actually taken
up arms in the conflict. Beginning in the 19th century the status of
non-combatants and the protections to be afforded them found expression in
international law.
It is ironic that at a time
when the status of non-combatants was being defined by treaties, the concept of
total war, of war as a conflict of peoples not armies, was also gaining
currency. This is a legacy of the Napoleonic era and of Napoleon’s mobilization
of the French nation for his imperial purposes, but its fullest expression
would be found in the 20th century, especially in the Second World War and its
aftermath. There, beginning with the German policy of unrestricted submarine
warfare in the First World War and continuing through Allied policy of strategic
bombing to the four-decade long standoff of nuclear deterrence, the distinction
between combatant and non-combatant was virtually erased. The modern era, it
was argued, was a time of “total war,” in which every member of the community
was a legitimate target since every member could somehow be considered a
combatant.
Such a claim, however, is and
has always been untenable. The Just War tradition is rooted in the claim that
the use of military force must be legitimized by, among other factors, a just
cause. Such potentially deadly force can only be used in the service of peace
and, by extension, only directly against those who act against (or who are
prepared to act against) peace in a proportionately serious way.[4] A just war necessarily
requires a just use of force, which in turn excludes direct assaults on
innocent persons.
In practice the distinction between the innocent and the guilty in the context of war is difficult, perhaps even impossible, to make. In combat, where such distinctions become actually meaningful, it is impossible to gauge the innocence or guilt of another party. Is this enemy soldier or sailor an unwilling conscript, forced to serve in a war to which he does not consent? Is the unarmed civilian an ardent supporter of the conflict even though he does not fight? Who is innocent here and who guilty?
In the late Middle Ages and
the early modern period the conviction grew incrementally that some members of
communities in conflict ought to be spared the violence of war. The customary
law of arms entailed a rationale for protecting civilians from harm in a siege,
provided they removed themselves from the beleaguered city.[5] If not strictly a matter of
justice, at least as a matter of military honor, civilians who heeded an
authoritative command to surrender were not to be harmed.
Innocence as a criterion for
determining membership in a protected class, however attractive it was for
academic moralists, proved to be an unworkable criterion for those who actually
had to make decisions about who should and should not be targeted. Similarly,
the distinction between civilian and soldier, while clear in the abstract, is
too easily blurred in practice, as the recent experiences in
A more promising criterion
(though admittedly none will be perfect in application) is the distinction
between those who directly participate in the activities of war (uniformed
members of the armed services being the most obvious examples) and those whose
activities are essentially peacetime activities. As combatants we may therefore
include workers in munitions factories, programmers of weapons systems, and
similar combat support functions, as well as the political leaders of the
society.[6] But we must exclude from
direct, intentional attack as non-combatants all those whose working activities
support the general functioning of the society, such as farmers, fire-fighters
(even though they may be called upon to extinguish fires caused by artillery
and bombs), makers of military uniforms, and so forth. Surely to be classed as
non-combatants are children, the disabled, and the elderly, among many others.[7] That members of each of these
groups might vigorously agree with the war is irrelevant to the immunity they
rightly possess.
Just War Theory and Non-Combatant Immunity
At first glance this would seem to be an unnecessary
question, since it was acknowledged at the beginning of the paper that the
Principle of NCI was broadly accepted. But is this really true? Early Just War
theorists did not include NCI as one of their qualifying principles and indeed
seemed to accept some direct, harmful consequences to non-combatants
as a just outcome of war. The strenuous defense of NCI, and not merely
defense of a prohibition of direct harm to certain classes (e.g., clergy),
seems to be relatively modern.
Well, suppose that Just War theory has developed like so many other intellectual traditions and that we are now in clear agreement on a principle that was obscure to our predecessors. Even so, we can still ask whether we mean to defend a narrow or a comprehensive understanding of the principle.
The narrow understanding of the principle would merely assert that
non-combatants are to be immune from all intentional uses of force that would,
or could, cause death or gross bodily harm. It would be immoral on this
understanding to engage in actions that, directly or indirectly, were intended
to kill or seriously harm non-combatants. We might include within the
definition of serious harm permanent injuries, rape, severe psychological
trauma, and so forth.
At the other end of a
continuum would be a comprehensive understanding of NCI, which in its widest
scope could include all personal injuries, even those minor and temporary, all
discomforts and inconveniences, as well as all damage to personal property.[8]
Before we come to a conclusion
about where on this continuum we wish to locate a reasonable understanding of
the Principle of NCI, let us consider what might be at stake.[9] That is to say, why and where
would a military command (or its political superiors) be tempted to employ
less-than-lethal force against non-combatants deliberately?
Less-than-Lethal Attacks on Non-Combatants
Consider three objectives for the use of less-than-lethal force (and others may be proposed as well).
First, someone might wish to
attack non-combatants in order to undermine their resolve, or the resolve of
the combatants, to continue the conflict. A strategy like this (though with
deadly force) was famously pursued in the Second World War, and to some degree
in Vietnam, without great success but perhaps this outcome had something to do
with the nature of the totalitarian societies against which it was employed.
Perhaps an argument could be made that it would be successful if used against a
different society, or perhaps the less-than-lethal force itself would bring
about a different result from strategic bombing.
Second, someone might attack
non-combatants in order to draw needed resources away from military operations.
If there were a way of denying food or fuel or some other commodity to a
civilian population and that commodity could be supplied by drawing on military
supplies, the effectiveness of the military could be reduced. Notwithstanding
the general tendency of populations at war to endure sacrifices in order to
keep the armed services supplied, this strategy might be effective in
circumstances where the civilian population was not fully enthusiastic about
the war in the first place, or where a high civilian standard of living would
be severely and abruptly degraded.
Third, some military theorists
argue that it is necessary that civilian populations realize that they have
been defeated if peace is to be realized after combat has ceased. This may have
been very much in the mind of General William T Sherman as he marched through
the South in 1864. That is, since the Southern population had escaped the worst
direct ravages of war, they were willing to continue the fight. Once
To round out this line of thought, we should also give some consideration to the means that might be adopted to pursue these ends. Given modern technologies and creative imaginations, we could easily develop a variety of less-than-lethal and even non-violent means of attacking non-combatants. But just what would we attack?
Well, we could attack the
health of non-combatants in relatively minor ways. For example, we might find
ways to deprive a civilian population of sleep or expose them to particularly
aggravating sounds.[10] The damage done might be
quite annoying even though it would be temporary. Interference with some food
supplies could bring similar results.
We could also attack the
economic well-being of the civilian population. War, of course, ordinarily causes
this in any event, but steps could be taken to disrupt a banking system or to
degrade a currency.[11] Private property could be
damaged, especially wealth-producing property, which would have the further
effect of putting people out of work and depriving them of an income.[12]
Information, communication,
energy, and transportation systems could be disrupted, perhaps with minimal
permanent damage.[13] This could be done not to
deny the enemy armed forces the use of dual-purpose elements of the
infrastructure but deliberately to hamper civilian populations in their
ordinary activities.
Finally (though this is not
meant to be an exhaustive list), we could assault the physical comfort and
sense of security of a civilian population. Unpredictable energy disruptions
could contribute to this as could the intermittent denial of other basic
services. Furthermore, we could pursue a campaign of disinformation calculated
to confuse and demoralize a population.
Each of these means would be
less-than-lethal, at least in intention, and many would be simply non-violent.
Yet each would constitute an attack on non-combatants if undertaken
deliberately. On what grounds can we distinguish legitimate from illegitimate
violations of NCI, or would all such attacks be unjustified violations of NCI?
How Far Does NCI Extend?
The answer we give to this question depends upon the
foundation we identify for NCI in the most obvious case, which is immunity from
lethal attack. But why should non-combatants be immune from direct, intentional
lethal attack? Or perhaps we should ask why anyone would be justly susceptible
to lethal attack.
The answer in the Just War
tradition is expressed differently by different witnesses to the tradition but
a reasonable summary explanation would be that those responsible for the
well-being of a whole community (that is, the common good of that civil
community) may use whatever force is necessary to protect the community—up to
and including deadly force. This principle, applied internally to the
community, justifies the use of deadly force to protect the community from
criminals and even to administer capital punishment. Applied externally, the
principle justifies the use of deadly force, of war, to defend the community
from foreign armies (and navies) who would attack it unjustly.[14]
Of course, an underlying
assumption is that the use of deadly force is only justified when lesser
measures are reasonably judged not likely to be effective. Since the death of a
human being is always an evil (though not always a moral evil), it must be
avoided where possible.
The authority to use deadly
force, however, is a specific case of a larger principle, which concerns the
use of force to compel behavior. To be fully respectful of human dignity and
freedom, changes in another person’s behavior should be brought about by
persuasion, not force. However, when some persons, or groups of persons, seek
to harm the common good and will not respond to persuasion, the civil authority
may rightly employ whatever level of force is necessarily to compel them to
change, or to prevent them from doing harm.
Two factors are key: the
persons subject to the use of force must be engaged in doing significant harm
and they must be resistant to persuasive efforts.
Do non-combatants fall into
this category? By the definition we adopted at the beginning of this paper they
do not. Even though they may endorse the war-making activities of their
government and be correspondingly resistant to persuasion, they are not engaged
directly in significant attacks on the common good that would warrant the use
of force against them. Certainly they are not justly susceptible to the direct
and intentional use of deadly force.
But what of lesser forms of
force? The moral foundation that justifies the use of deadly force is the same
foundation that justifies the use of force of any sort. To be justly subject to
the use of force someone must be engaged in harm-doing but if non-combatants
are engaged in harm-doing then, by definition, they are no longer
non-combatants.
Furthermore, non-combatants
are defined negatively, as those who do not belong to another particular class.
Defined in this way, the class of non-combatants includes not only potential
combatants but also those who cannot now and may never be combatants. As such, any
direct attack on members of the class who, for example, might be engaged in
encouraging a continuation of war, must entail an attack on natural
non-combatants—which cannot be morally justified.
As a consequence, regardless
of the level of force employed or the kind of harm intended, no direct,
intentional attack on the person, property, or well-being of non-combatants can
be justified.
What Are the Practical Implications of
Comprehensive NCI?
Strategies that involve direct attacks on non-combatants are
normally defended on a utilitarian basis. Such is the defense of
What we do know, however, is that each of these
actions—and many others could be adduced in the history of warfare—was a direct,
intentional attack on a specific group of people that was know to contain a
large number of non-combatants. In the case of the bombing of
But what of other strategies,
such as sieges, blockades and sanctions? Each of these practices is morally
neutral in principle, which is to say that each could be employed legitimately
against an enemy, but each would also be unjust if employed deliberately
against a non-combatant population.
Setting aside a siege as an
anachronism, we can consider blockades and sanctions. These both belong to the
category of operations intended to deny the enemy important resources. If they
are employed against groups containing non-combatant populations, they are
morally licit to the degree that they focus directly on resources of military
value and permit resources of importance to the non-combatants to reach them.
Hardships caused to non-combatants can only be permitted, not intended.
Similarly, other tactics and
strategies that have an impact on the well-being of non-combatants can be
defended to the extent that they do not directly target this well-being. None
of the practices described in the earlier section of the paper would pass this
test and therefore none would be just.
One important temptation in modern warfare is to regard war
as a conflict between peoples, partly because the tools of modern war can so
easily reach everyone in the population. This, in turn, can lead us to think
about every member of our own community and of the enemy community as a
combatant of some sort. But clearly this cannot be so. No “total war” can be a
just war. Just war theorists must defend the Principle of NCI, which entails
immunity not only from deadly harm but from all sorts of harm to the well-being
of non-combatants.
NOTES
[1] This general statement of the
Principle of NCI is well known. We need not go into a detailed discussion of
its components except perhaps to say the following: An attack may be direct or
indirect. A direct attack is one that
is designed to have an immediate effect upon the subject of the attack, while
an indirect attack produces an effect
upon the subject through one or more intermediate causes. These descriptors
tell us something about the means employed for the attack. The moral quality of
the act, however, is determined by the intention
of the attacker, which intention can concern both the means and the end, or
object, of the attack (i.e., the state of affairs that the attacker wishes to
bring about through his action). According to the principle of NCI, direct
attacks are always prohibited (because, being direct, they are always intended)
but indirect attacks may sometimes be licit (because, being indirect, they may
be unintended consequences of direct attacks).
[2] The earliest discussions of
just wars, as for example in Augustine, regarded war as a public act, which is
to say an act of the community or society. Only the sovereign is authorized to
initiate and prosecute a war, and then only to secure peace for the society.
Private persons owe a duty of obedience to public authority and therefore are
presumed to have an obligation to participate in a duly-authorized war (unless
it is overwhelmingly clear that the war is unjust). It is an exaggeration of
this idea of war as a public act that conceives of each member of a society
individually as personally “guilty” for the public acts of that society.
[3] Though in the case of the
Romans, especially in the later empire, citizenship was often not a requirement
for armed service, but its eventual reward. In the
[4] Perhaps it goes without
saying, but “peace” here should be understood not as an absence of conflict but
rather as a constituent of the common good of the human community, as a harmony
among peoples which makes possible the flourishing of all.
[5] See M H Keen, The Laws of War in the Late Middle Ages
(London: Routledge & Kegan Paul, 1965), particularly chapter 8 on sieges.
According to Keen, direct attacks on civilians following a siege (including
rape and execution) were considered just on the grounds that the defenders of a
under siege were, in principle, rebelling against the lawful authority of the
prince under whose command the siege was laid. By remaining in the city, the
civilians allied themselves in intention with the rebels and were therefore
more or less subject to the same consequences of defeat. Note that this is an
argument similar to one claiming that every member of a modern society at war
is a legitimate target, though here the criterion of intention is made somewhat
more explicit.
[6] On this account, civilian
workers in munitions factories or those providing support services on military
facilities are technically combatants and legitimate military targets—while they are on the job. While this
point may be open to further discussion, I concur with the position that such
workers cease to be combatants when they are not working. One entailment of
this, of course, is that these workers cannot rightly be directly attacked in
their homes, as was for example the strategy of British Bomber Command over
[7] We might call these groups of
people natural non-combatants, but
even here it is possible in particular circumstances for a member of any of
these groups to become an actual
combatant. A child can fire a rifle, an elderly woman can detonate a bomb.
Should any member of these groups do such a thing they would, in virtue of that
act, immediately become a combatant, and lose their natural immunity from
attack.
[8] I will assume that the
question of deliberate damage to public property must be treated differently,
which is to leave open the possibility that intentional damage to public
property might be justified where the same damage to private property would
not. I do not intend to treat this question here.
[9] An interpretation of NCI that
strips enemy non-combatants of their immunity in cases of supreme national
emergency can only do so on utilitarian grounds, permitting apparent military
necessity to trump NCI. And if this is so, it is not clear to me why military
necessity should not always be a more important consideration, which of course
vitiates NCI. Rather than adopt this specious position it seems to me better to
qualify the Principle of NCI categorically, which requires a principled
explanation for NCI in some circumstances but not in others.
[10] Any American teenager could
be a good source for this sort of weapon.
[11] That some actions in this
regard might be illegal is not itself an argument that non-combatants have a right
to be immune to such attacks.
[12] Would it be possible for a
“mild” electro-magnetic pulse to be applied to a population center in order to
damage a variety of ordinary civilian machines?
[13] “Weapons” systems that
disrupt power transmission grids without actually destroying the grid could be
an example of this capability.
[14] The question of whether the
civil authority would act justly to defend his community from a foreign power
that seeks to recover what the first community unjustly stole is a different sort
of question. Provided the foreign power is acting simply to recover what it
lost, and perhaps to punish the offending community, but not to harm the
innocent, it could be argued within the tradition that the offending community
cannot justly defend itself.