Introduction

Consider the following scenarios of modern warfare:

The Marines are dispatched to a Middle Eastern country to rescue the American Ambassador and his family who are trapped inside the embassy, surrounded by a crowd of protestors. It is unclear whether or not they have weapons, but they are clearly belligerent and seem on the verge of violence given the strong anti- American tone of the rhetoric.[1]

A terrorist group, associated various Islamic religious groups, has perpetrated an attack on a civilian target in New York City and has taken hostage and then killed civilians. The military is eventually called in, the mayor declares a state of martial law and the military’s mission is to isolate and root out the members of the terrorist ‘cell’ believed to be taking refuge in the one of the Arab-American neighborhoods in the city.[2]

Given an increasing tendency toward and proliferation of peacekeeping and/or humanitarian interventions (as opposed to traditional forms of warfare) can the traditional distinction between the combatant and non-combatant, with its underlying distinction between not innocent and innocent, be maintained? Are there any innocents in warfare anymore? What exactly does innocence mean? If there are, how could soldiers in the field go about ascertaining who is innocent and who is not? Is ‘non-combatant’ innocence a function of a by-gone way of thinking about war? Can it and should it still be maintained? Even if it can be maintained in war, is it appropriate to these kinds of operations that do not seem to fit the standard images and therefore, operating procedures of classical warfare?

In this paper, I take up this classical distinction of combatant versus non-combatant to see if it is still valid given the ‘new’ nature of warfare. First, I will look at its philosophical and historical origins in such thinkers as St. Ambrose, St. Augustine, St. Thomas Aquinas and Grotius to show the evolution of the distinction and how it was understood in context of their times and concerns. Second, I will examine the question of whether there has been a shift in the justification being used to support the distinction, looking at situations in contemporary warfare like Vietnam, Somalia and Kosovo. I contend that the justification has in fact shifted, but that we are still attempting to appeal to the old philosophical and historical roots to buttress new justifications of the distinction, and that such moves are problematic, as evidenced by the great controversy surrounding this issue. Finally, I will argue for a new justification based not on the innocence or guilt of the parties involved, but upon the relative power of the parties to inflict harm, and therefore, the extent to which they might be considered a threat. I believe that this approach allows us to maintain the distinction in a philosophically defensible form, and in a way that can accommodate the important concerns of those in the field who must live by the distinction.

First it is necessary to begin with thorough examination of the philosophical justifications and historical origins of the idea of a distinction between combatants and non-combatants in war. Where did this distinction originally come from? For what purpose? How did it actually work in war? In reflecting on the distinction it is immediately clear that the lynchpin of this distinction is innocence. The standard argument runs as follows: The non-combatants are not involved in the war: they do not mount the war, do not execute the campaigns and battles and therefore, are not implicated in any possible ‘crime’ of war. The government and/or rulers and their proxies (the soldiers) wage the war, largely without the consultation of the non-combatants, who do not have the knowledge of the war required for moral responsibility and are not involved in any morally relevant way. It is the rulers and the military, therefore, who bear the moral responsibility for the war; they are ‘guilty’ in any morally relevant (and possibly legal) sense.

This line of argument, common in most versions of Just War theory, is most intuitive in political systems where the rulers are few, have a great deal of power, little accountability and are free to raise an army without disturbing the populace to a large extent. Such a description brings to mind various versions of monarchy or moderate authoritarian states, but how do the two dominant political models of the 20^th century – democracy and totalitarianism – fit into the standard argument? Given the nature of these forms of state, the standard argument quickly becomes problematic. Both of these systems have a much higher level of participation by the people in the work of the state (even if they do not have actual power,) as well as higher levels of knowledge, communication and support of the actions of the state. All of these factors make it much more difficult, if not impossible, to argue that when it comes to war, the non-combatants do not have the requisite knowledge and participation for moral responsibility.

If this is true, then it is necessary to dig deeper into the historical origins and philosophical justifications of the original arguments for the combatant/non-combatant distinction to understand how this idea came about, and what might be required for a new account, in the event the original justification cannot accommodate contemporary forms of warfare. In the classical versions of Just War Theory (Augustine and Aquinas principally) this distinction turns on moral virtue or lack of it (mainly justice), but what about Grotius’ theory? Is it still a moral distinction or has it changed to being based upon roles (woman, child, old man) rather than guilt or innocence? If there is such a shift, is it a fundamental philosophical shift, or merely a change of emphasis designed to update Augustine’s and Aquinas’ account, but which maintains the original philosophical justification? And do modern understandings of the distinction represent the same kind of move or have they really abandoned the old justification without acknowledging that they have done so?

II.

With these questions and issues in mind, we turn to the historical and philosophical evolution of this distinction. While there are hints of the combatant/non-combatant distinction in antiquity (Egyptian, Greek and Roman thought all show signs of recognizing this difference), St. Ambrose begins the tradition by making the claim that soldiers have a duty to the innocent, even at the risk of their own life.[3] The rationale for this duty had to do with idea of moral equality between the soldiers, namely that the moral ‘guilt’ for the war lay with those who initiated it, as opposed to those who fought it. The soldiers presumably bear no ill will against their enemies (morally they are all in the same boat as proxies for the rulers who initiate the war) and nor against those who are not implicated in the ‘guilt’ of the war – the innocent non-combatants. Here we find the genesis of the notion that certain protections are to be accorded to those not involved in the war and that this distinction is essentially a moral one, articulated in terms of ‘guilt’ and ‘innocence.’

This language of guilt and innocence evolves into the language of justice and injustice by the time of St. Augustine, who is known for his formulation of the classical criterion for a just war – a critical component in determining who bears any ‘guilt’ for initiating the war. “A just war…is justified only by the injustice of the aggressor; and that injustice ought to be the source if grief to any good man because it is a human injustice. It would be deplorable in itself, apart from being a source of conflict.”[4] Augustine does not rule out war as automatically unjust, but says that it is simply part of the City of Man – as opposed to the City of God – and therefore will be destructive of guilty and innocent alike.[5]

But what about the distinction between the guilty and innocent, between the combatant and the non-combatant? “Peace, then is the purpose of waging war; and this is true even of men who have a passion for the exercise of military prowess as rulers and commanders.”[6] The goal of war being the restoration of peace (which presumably has been disrupted by the injustice of another) might appear to point to a prohibition against killing innocents, but Augustine does not specifically address this issue in his writings on war. Augustine’s major concern is to address the justness of waging war in the first place, in particular to justify Christendom’s waging wars against the unjust. The problem of Original Sin and the fact that war is an instrument of the City of Man further complicates matters; Augustine does not seem particularly concerned about making a distinction between the ‘innocents’ and those who wage the war. After all, if it is a just war then those waging war are innocent in terms of moral responsibility for the war and that might reduce the need to make the distinction. Augustine acknowledges the horrors of war, but seems to write them off as a result of the City of Man and its sinful nature.

This attitude seems to be borne out in the Crusades (especially in practice), but also in much of the internecine warfare that takes place in the Middle Ages. Presumably it is the destructiveness of the warfare close to home that leads to a strong revival of interest in this distinction, manifesting itself in the Peace of God and Truce of God movements in the tenth and eleventh centuries. The aim of these movements was to re-establish the peace in a time a great civil disturbance, feuding between various nobles which resulted in rape, pillage and plundering – especially of church property, but eventually the ideas come to be applied to the rhetoric of the Crusades and incorporated into Just War Theory by Thomas Aquinas and Grotius[7]

An early example from this movement is the following proclamation by the Council of Charroux issued in 989: “Our purpose is that the criminal activity, which we all know has for some time been sprouting up through evil in our districts because of our long delay in calling a council, will be rooted out and a more lawful activity implanted.”[8] Similarly a peace oath proposed by Bishop Warin of Beauvais to King Robert the Pious in 1023 read in part, “I will not invade a church for any reason…I will not assault an unarmed cleric…”[9] The oath went on to prohibit the destruction of property, the seizing of hostages for ransom, attacking merchants, pilgrims, women, children and animals unless they commit crimes; the only exceptions to these prohibitions were if crimes have been committed, when damage had been done, when besieging a town or castle or hosting the king or bishop – and in those cases there are strict requirements to take only what is needed for survival and no more. An example of this approach comes is Shakespeare’s play Henry V where the King insists that the French peasants are not to be disturbed or upbraided, churches and clergy left alone and anything taken will be paid for. The King even goes so far as to hang one of the characters for stealing from a church, both as punishment and as an example to the rest of the army.[10]

It initially seems that the prohibition against harming clergy, women and other non-combatants and their property is rooted in the fact that these groups are vulnerable and pose little or no threat, but on closer inspection the main reason appears to be that failing to protect these groups disturbs the peace (unnecessarily) and is contrary to the will of God. The only justification for violations of these protections are in the course of combat, and even then there are strict limitations on what can be done – what is required for survival or what is necessary for punishment or retribution in response to a crime. The moral justification for inflicting harm on non-combatants can be suspended only if they can be considered ‘guilty’ in some way – either having committed a crime or engaged in warfare. The proclamations in the Peace and Truce of God movements carry with them a strong moral tone and violations of them are viewed in moral and legal terms – to be punished with fines, imprisonment and/or excommunication. In these movements we find the first systematic attempts to define and protect the status of non-combatants on the grounds that those who are innocent and can do no harm themselves should not be harmed.[11] This distinction and the protection accorded under it became gradually accepted, provided that the non-combatants did not take advantage of the immunity, if they did the protection was revoked.[12]

St. Thomas Aquinas continues Augustine’s Just War tradition, reiterating Augustine’s just war criteria and further expanding the argument. In reply to an objection that war is contrary to divine will (and therefore to Natural Law), Aquinas insists that it may sometimes be necessary to act otherwise that one normally would for the sake of the common good, “…sometimes it is good for the sinful or unjust to be vanquished…”[13] This line of argument is then applied to the question of the use of deception (notably ambush) in war, and following Augustine he concurs that “…provided the war be just, it is no concern of justice whether it be carried out openly or by ambushes, ” but outright intentional deception (lying) is not permitted.[14]

Even as Aquinas is reiterating Augustine’s line of argument, it becomes clear that some of the traditional jus in bello arguments from the Peace and Truce of God movements are being integrated into his account. On the question of killing non-combatants, Aquinas questions whether it is permissible to kill innocents, supporting the contention that this distinction up to this point had been understood in terms of moral guilt and innocence. “…the life of righteous men preserves and forwards the common good, since they are the chief part of the community. Therefore, it is in no way lawful to slay the innocent.”[15] However, it is permissible to kill (righteous or not) in self-defense because of the principle of Double Effect: one is responsible for what one intends to bring about, not what happens as a result of unintended, even foreseeable actions. One should never intend to kill innocents, but if innocents die as a result of some action that one did not intend, that is morally permissible.[16]

By the time of Grotius, the major concern is no longer so much to justify the involvement of the Church in warfare, but to delineate the ‘rules’ of war between emerging nation-states of Western Europe. In On the Laws of War and Peace Grotius opens by maintaining the distinction between war and the justice of it, claiming that justice is not included in the definition of war.[17] Clearly Grotius sees the nature of war itself and the question of justice as separate issues; this may be one of the reasons that he spends more time discussing how to fight war justly that do his predecessors.

Following the Just war tradition, Grotius also picks up on the moral equality of the combatants, asserting that both sides are entitled to use the same strategies, “each side without distinction has a right to employ the same means of annoyance.”[18] He does note the tradition of killing women and children in warfare (citing the Hebrew scriptures), but refuses to use that as precedent, arguing that the commands of God are one thing and the Laws of War another. In this vein Grotius also acknowledges the need for temperance and restraint – that the right of killing enemies in war is to be tempered with moderation. Quoting Cicero, “…some duties are to be observed even towards those from whom you have received an injury. For even vengeance and punishment have due bounds.”[19] No one ought to be destroyed (as a punishment) when justice can be served equally as well without that destruction. Justice demands that the minimal punishment necessary to achieve justice be used and in order to have any punishment at all, there must be a crime. Thus, Grotius brings his account back to the central concern of Augustine and Aquinas – war as a means to pursue justice.

It is this concern for justice, both of the war and in the conduct of the war that underlies Grotius’ clear distinction between those who participate in war of their own will and those that do not.[20] With reference to the ‘calamities of war’ (the killing or injuring of innocents) this distinction serves a crucial purpose in establishing whether or not the act is morally permissible, “For a people may sometimes be engaged in a war against their will, where they cannot be justly charged with entertaining hostile intentions.”[21] Where we cannot establish a clear, hostile intention, Grotius advises that we follow Cicero in insisting that those who have not committed atrocities or cruelties in war should be spared punishment and that all war should be prosecuted on ‘principles of moderation.’ Although there may be warranted sacrifice of lives in war, Grotius strongly contends that one must be careful to maintain these important distinctions of justice, “…humanity will require that the greatest precaution should be used against involving the innocent in danger, except on case of extreme urgency and utility.”[22] This means that certain categories of persons (women, children, the old and infirm) should be spared, except in cases where they have forfeited this protection by taking up arms.

We can see that on Grotius’ view that innocents as a class are to accorded special rights, largely on the grounds that they are not participants and therefore, do not have hostile intentions. He has made it clear that the protection of innocent life, even from accidental or unintentional harm, is essential and can only be excepted for weighty and serious reasons (usually involving the safety of great numbers.) But what exactly is the source in Grotius of the distinction between the innocent and those that are not (the combatants)? On the surface, it seems that Grotius is merely following the lead of Augustine and Aquinas and making the distinction in terms of moral guilt or righteousness – that those who are innocent are those that bear no moral guilt for the crime of war. However, on closer inspection, it appears Grotius makes a subtle shift; he delineates certain categories of persons (women, children, prisoners, the infirm, the aged and clergy) that are accorded protection in terms of whether or not they fulfill certain roles, not on the basis of moral righteousness or guilt. Of course, the protections are to be revoked of one leaves or gives up one of these roles for the role of the combatant – the critical difference being what role is being filled or acted out.

But does this subtle shift in fact change the basis justification of innocence and guilt? One might argue that the categories Grotius elucidates are assumed to be connected (directly or indirectly) to innocence or guilt for waging or participating in the war. The reason why the categories/roles come to be protected is because these classes of people are not morally implicated or involved in war; it is on these grounds that they deserve protection as innocents. This line of argument could be further supported by Grotius’ concern for just conduct within war, especially his contention that mercy and temperance are necessary toward those who do not exhibit hostile intentions. If this line of argument is correct, it would seem that with Grotius the philosophical justification is the same, since the core issue – despite the new emphasis on protected categories and sanctioned actions - of who bears moral responsibility for the war remains the same. Therefore, Grotius’ account is simply a more sophisticated and updated version of Augustine’s and Aquinas’ line of thought and is vulnerable to the same criticisms and problems.

III.

Despite an initial appearance of differences between the various accounts in the classical Just War tradition, they all depend upon a critical distinction between the innocent and the combatant, rooted in who does and does not bear the moral guilt for waging and participating in the war. We turn now to several contemporary examples to see if the same philosophical justification is being applied or if an alternative view has replaced it.

Much has been made in the literature of the difficulties of maintaining this distinction in the jungle, guerilla warfare of Vietnam; there were not so much standard battle lines (although there was some ‘traditional’ warfare,) but engagements between small units – often in situations of surprise attack and/or ambush – where one could not easily identify the enemy qua enemy. Given the nature of actual warfare and the fact that there were civilian collaborators who used (or misused) their civilian status to catch troops off guard, debate quickly ensued as to whether this distinction was 1) outdated since it did not reflect the current realities of warfare and put those observing the distinction at an unfair combat disadvantage and 2) impossible from a practical point of view to enact even if one thought it should be maintained. On the other hand, complete abandonment of the distinction seemed morally repugnant and somehow 'uncivilized’ as evidenced by the controversy, ill-will and distrust in the wake of the My Lai ‘massacre’ and subsequent courts-martial trials of Lieutenant Calley, Captain Medina and others. While it is true that a great deal of consternation was coming from the home front, there was also plenty coming from in-country – even from those who participated in such actions.[23] While recognizing the inherent difficulties of applying ‘rules of war’ oriented toward ‘traditional’ battlefield tactics to guerilla warfare where the traditional models and distinctions were largely useless, there was still reluctance (in both the military and the civilian circles) in abandoning the distinction altogether.

The difficulty of applying the rules of war to non-traditional war situations and a reluctance to abandon them continued to be a problem with the humanitarian intervention in Somalia in 1992, where troops were faced with the unique challenges of urban warfare and ‘peacekeeping’/humanitarian missions carried out in situations where troops were caught between competing groups of hostile forces.[24] “It was total anarchy. Mass killing, mass looting; it was awful. The armed groups had overrun Mogadishu, and had free reign to kill, destroy and rape whom they want.” Into this chaotic situation are sent US Army Rangers with the mission of apprehending one of the Somali warlords and they come under attack, seemingly from all sides. At one point several soldiers observe the presence of children, at first glance appearing to be civilians until they notice that these children (10-12 years old) are carrying military style weapons that are larger than they are. Fighting in a chaotic urban situation such as this raises the issue of how one identifies combatants as opposed to non-combatants – especially when there are multiple hostile factions who do not wear conveniently identifiable uniforms with insignia and who may all be in the same location at the same time with innocent, uninvolved civilians.

While there was less urban warfare in the Bosnia and Kosovo conflicts, the formula of trying to enforce peace and carry out largely humanitarian missions in the context of being trapped (in some cases literally) between competing hostile forces, while trying to protect one’s own forces, was repeated time and time again.[25] This problem was compounded by the habit of using civilians as human shields in order to protect military targets from NATO bombardment and/or as hostages for the protection of military forces/actions or to forestall military attack. Once again we have the problem of being faced with multiple hostile groups – in many cases being caught between them – or attempting to protect one group from another. In addition, there is the problem, which has been thorny and perennial since Vietnam, being able to quickly and accurately distinguish the enemy combatant from the innocent civilian who is entitled to protection.

These contemporary examples and illustrations show many of the difficulties and practical challenges that are faced by forces trying to maintain the distinction, but they also reveal some of the situations and scenarios that have spawned debate over whether the distinction should be maintained at all – the philosophical debate in addition to the practical one. What can we conclude? In all of the examples discussed, the original philosophical justification of moral guilt/innocence has more or less fallen out of use. The debates and discussions over the distinction and its applications seem to revolve largely around whether a situation involves persons who belong to one or more of the protected categories under the rules of war and international law. The major reason is straightforward: the complicated and multi-layered conflicts of the contemporary world which have arisen as a result of the decline of colonialism and the rise of nationalism have made such determinations (guilt/innocence) highly ambiguous and controversial in academic or political circles, much less in the field with bullets flying and lives at risk. There does not appear to be any uniform standard (or even a couple good options) that one might use to determine the standard for justice on which the distinction was originally dependent. It would seem that it is imposing an undue burden on military personnel to try to sort out in short order and under stress what the academics, politicians and pundits (with more time and resources at their disposal) are still struggling with.

One might argue that this difficulty is hardly one confined to the modern conflicts cited above, but was equally challenging in the times of Augustine, Aquinas and Grotius. Why else would they have come up with their accounts but as a way to provide some such standard of justice? One might also insist that the United States or other powers (NATO, the UN) ought to step forward to provide moral leadership in determining what justice is in these situations and not abandon their bully pulpit simply because such determinations are difficult and complicated to make. In the end, not sorting the issues out will only make matters worse, not better. Others would argue that International Law can provide the standard of justice against which one might make such determinations about who bears the moral responsibility for initiating and waging the conflicts in question. In the case of the Gulf War, the Coalition powers appealed to various United Nations resolutions, human rights conventions and protections and the illegal status of aggressive war in order to support their claim that Saddam Hussein had illegally started the war by invading Kuwait and that, based upon International Law as well as Just War theory, they were justified (and therefore not morally guilty) in intervening on behalf of Kuwait.[26] While there may have been other long standing and complex causes and issues with some culpability on both sides, the claim was that the central issue was one of International Law and the justice prescribed by it.

On the surface, it seems that International Law might provide some basis for discussions and determinations of justice to establish moral guilt and/or innocence for a war, this confidence is rather deceptive. Aside from the obvious issue (especially in the Gulf War case) of whose standard of ‘justice’ International Law and Just War theory reflects, there is a more fundamental issue. International rights and obligations are not predicated (either practically or philosophically) upon the innocence of the parties involved, but upon 1) their common and basic humanity (which applies regardless of innocence or guilt) and 2) their belonging to a certain group or fulfilling a role which is protected. The Geneva and Hague Conventions are not articulated in terms of moral virtue or protecting the innocent qua innocents, but rather in terms of minimizing suffering and facilitating the restoration and maintenance of the peace.[27] Here there is a clear difference in philosophical justification. While just War Theory – at least in its classical formulations – is articulated in terms of moral guilt and innocence of the parties involved, the bulk of International Law and ‘rules of war’ under debate owe their present justification not to Just war Theory but to Enlightenment era political philosophies; such philosophies articulated justice, rights and their protection in terms of belonging to a social contract, which according protection on the basis of common humanity and/or membership in certain groups (political, religious, social, ethnic) entitled to certain protections. In short, we have two entirely different justifications for the combatant/non-combatant distinction, so it should not be surprising that the standard argument from maintaining the distinction are running into difficulty and yet so are calls to abandon the distinction entirely.

IV.

If this distinction is to be maintained, it will be necessary to be clearer about what the rationale and philosophical grounding would be for the distinction, as well as for its maintenance. But why keep it at all? Why bother sifting through two sets of philosophical arguments and justifications for a distinction that is as messy in practice as it is in theory? Surely it would be much simpler to abandon it entirely - as an outdated vestige of European medieval chivalry not conducive to contemporary warfare? This is a common line of argument in relation to the challenges of contemporary warfare, especially the non-traditional conflicts of the late 20^th century. In reflecting upon World War II, Adam Roberts draws two conclusions that illustrate the core difficulty with the distinction. One conclusion is the importance of the distinction between the rules that limit actual combat action and rules that concern those within one's power (prisoners and civilians).[28] To say that we ought to observe rules which limit what combatants may do to another on the field is one thing (and some of the arguments really have to do with this issue) and to say that we ought to observe rules about those that are not involved is another. The other conclusion is that the distinction between soldiers and civilians is tenuous. The crimes committed against civilians, especially in the Second World War have led some to wonder "Has the civilian, as liberal Europe used to know him, become extinct?" Despite the tension between these two conclusions, Roberts suggests that there is a very basic idea that we refuse to give up - that certain classes of people are entitled to protection. As evidence he cites the adopting of four Geneva Conventions in 1949, and to this evidence I would add the perennial debate over the protection of civilians in virtually every conflict, past and present.

But it is also interesting to note that Roberts, in his reflections on recent warfare, notes the argument for the protection of civilians – not on the traditional grounds of moral innocence, but on the implied power differential (those within one's power are to be protected.) I believe that this subtle shift is not simply an accident of language, but provides a tantalizing possibility for a different way to look at the question of combatant vs. non-combatant protection. We seem unwilling to give up the notion that, on some level, those who cause unwarranted death, carnage and suffering in war ought to be held responsible. The question is: how do we go about making this determination of responsibility in a way that is fair, but which also takes into account the difficulties and ambiguities of the actual experience and practical realties of war.

The most experientially accessible fact about warfare is that there is a marked power differential between combatant and non-combatant: some are armed and have a great deal of power (the combatants); some are not armed are vulnerable to those who are (the non-combatants.) Therefore, a plausible and straightforward way to maintain the distinction, without having to depend on assessing the moral guilt or innocence of the parties involved, would be to index the level of responsibility (on a sliding scale) to the level of power involved. Since non-combatants (mostly civilians,) even in contemporary warfare, have the least amount of power, they also have the least amount of responsibility for the war and its effects – although they may still have some, depending upon the level of their knowledge and participation, and they should be judged accordingly.

I am certainly not proposing that we entirely eliminate consideration of who is responsible for the war and who is not, but we do need some way to assess it and the moral guilt or innocence of the involved parties is, as I have shown, fraught with all kinds of philosophical as well as practical difficulties. The power approach would be effective, because it still accords well with virtually every notion of military honor by maintaining that there is a moral and practical difference between those who are actively engaged in combat and those that are not. Contemporary discussions of military honor put a great deal of emphasis on the special nature of the soldier, as set apart from civilian society and the extent to which the soldier wields power – not for herself – on behalf and for the benefit of others.[29] Where there is special power, there should be special responsibility. It also supports another core ideas for military honor, that there are serious moral problems with total, unrestrained war. Power in war ought to be restrained so that it can be used in such a way as to minimize suffering and promote the restoration and maintenance of peace.

What exactly would this sliding scale of threat look like? How might it work in the field? To begin with, this scale is designed to be a sliding scale that would have the ability to be somewhat flexible in its application. Clearly there are areas of ambiguity that the combatant/non-combatant distinction cannot accommodate, but we do not want to give up assignations of responsibility either. This scale especially helps those in the field to make a determination of the power and potential threat that is involved in a given situation and therefore give guidance, but not an exclusive and exhaustive determination in isolation from other factors. I do not believe that this scale is necessarily inconsistent with International Law, Just War theory or current military practice; I hope that it supplements them and provides a way to make the necessary determination to uphold International Law and the ‘rules of war.’

The first and highest level of power and threat on this scale would be that of the uniformed combat personnel. This would be an individual with a standardized (at least to his military context) uniform with discernable symbols and identification which announce him as such to those who might see him. This person carries a weapon openly and it is obvious from a distance that the intentions of this person are likely to be hostile, that they have the ability to carry out these intentions and therefore, they pose the highest level of threat to a possible enemy. Since this type of individual clearly has the most power and poses the largest threat on the scale, the level of responsibility they must meet should also be high.

The second level of power and threat would be an individual who is armed, but not necessarily or obviously in a standard uniform that announces her intentions. Since this person is armed, it is likely (not certain) that the intentions are hostile and since the intentions are not evident, but a weapon is, this comprises a fairly serious threat. It may turn out that this person has no hostile intention at all, but the presence of a weapon at least raises concern and potential threat. The fact that the intentions are not announced also points to the potential threat and therefore, this person should be viewed as a threat and having a great deal of power – at least until such time as they announce their intentions (which would either move them up or down the scale definitively.)

The third level of power and threat would be classified as hostile. In this level the intentions of the individual are not made clear by a uniform or other symbol which announces their intentions and it is also not clear whether or not they have a weapon. However, this individual may meet a certain description that fits potentially hostile forces, be in an area where such individuals are suspected of operating or in some other way persuade the on-looker that they are neither neutral or vulnerable (the lower levels of the sliding scale.) While this is admittedly somewhat ambiguous, it is necessary to leave this category somewhat open in order to accommodate differences between combat missions and those that are humanitarian or peacekeeping in nature. Clearly what looks ‘hostile’ in a combat situation may differ from other situations, or vice versa. Another important component in this level is the fluidity of the situation, such that events and situations are highly volatile and subject to change, which makes the ambiguity of intentions and weapon possession dangerous.

The fourth level of power and threat would be classified as one who is neutral. In this case the individual appears to announce no hostile intentions (either symbolically by dress or insignia or literally by the presence of a weapon,) but neither has she announced friendly intentions. As long as this individual maintains their neutrality, they could be considered to be a fairly minimal threat, but clearly if the neutrality appears to change then this individual’s status would move to either the third or final category. If the neutral stance is maintained then this person has little power, they are not really a threat and responsibility should be rendered accordingly. (Which is not to say that the neutral party has no responsibility, as International Law clearly notes.)

The final level of power and threat would be one who is classified as vulnerable. Any hostile intentions that may be exhibited (a prisoner in uniform) are counter-acted by a clear inability or lack of desire to act on them. This individual clearly poses a very minimal (minimal – not zero – because they might change their status and this has to be accounted for) threat and in fact, may require positive protection from other hostile forces. Clearly many of the people who are usually classified as non-combatants would fall into this category (most children, women, the old, prisoners and the infirm or injured) and should be accorded the usual protections that we think of because they clearly pose little threat and may be threatened themselves – with no recourse to defend themselves.

This sliding scale of threat and power preserves two very important commitments discussed above: 1) that there must be a way to hold those responsible who visit unwarranted, unjust, cruel or excessive pain and suffering on those who are not involved in and implicated in the war and its effects; 2) that there are certain categories or persons that are and should be protected from the effects of war – regardless of nationality, race, creed etc. The second commitment is preserved by the final and lowest level of the scale which essentially translated the historical protection accorded certain groups into a framework where their protection is no longer a function of innocence relative to the crime of war. The first commitment is preserved by acknowledging that the gray area between combatant and non-combatant is not entirely straightforward in the best of circumstances, that guilt is not helpful in clearing up this ambiguity and that there may be degrees of involvement and potential involvement in combat. Since many of the conflicts that have been recently faced, and likely will continue to be faced, have as an essential component a rather fluid nature, the scale attempts to incorporate that concern in making an assessment of power, threat and ultimately responsibility.

To illustrate how this scale might work, let us revisit the village of My Lai in 1968. As the company went into the situation it is likely that they would have assessed the ‘enemy’ at the second level since they were expecting them to be armed, but as they went into the village the intentions of the villagers was not clear. However, as the company realized that there was no fire coming from the village, the assessment of threat could have moved down to hostile which would have still justified some level of force and a great deal of alertness, but would have mitigated the force used. As they became more acclimated to the situation and gathered intelligence, it is possible that the level of power and threat would have continued to decline to the last stage, when the soldiers realized that these villager were old men, women and children with no weapons, no hostile intentions or at least no way to carry them out. Would this have averted the death and destruction that occurred at My Lai? That is difficult to say, but I do believe that using a more nuanced way to assess threat and power would have probably slowed down the action and at least mitigated the damage, or allowed time for cooler heads with intelligence information to prevail.

I offer this example not as a way to rewrite history, but as a concrete illustration of the potential that I believe such a sliding scale has to protect the people who are not involved with the war and by morality and law ought to be protected, but also to protect those who are risking their lives in combat and have to make difficult determinations with far reaching consequences in short order with bullets flying. The major benefit of this view is the flexibility built into the sliding scale. Determinations are made on the basis of what can be clearly seen and observed, these judgements could be confirmed (or disputed) by what others see and the judgements can be quickly altered as circumstances warrant. However, this scale by no means abandons the notion that the people who pose the most threat and have the most power in conflict situations should also bear the highest levels of responsibility. To give this central notion of responsibility would be unacceptable because it would seem to make total, unrestrained and indiscriminate warfare permissible and even justified.

Conclusion

In this paper I have argued that the classical conception of the combatant/non-combatant distinction, as found in the views of Augustine, Aquinas and Grotius, is based upon the moral innocence or guilt of the involved parties for the crime of war. However, as we reflect upon contemporary warfare and the debates about the status of the distinction and its application, it becomes clear that the classical philosophical justification is not what it being appealed to by those who wish to maintain the distinction. I have argued that present International Law and military practice is conflicted because the original assessment of innocence and guilt is extremely difficult to make – especially in combat – and yet we still want to maintain the idea of protection of certain groups from and according responsibility to those who fail to do this. As a way to resolve this apparent tension, I suggested a sliding scale of power and threat which will enable those in the field to determine who is entitled to protection and also enable those who assess responsibility whether the force used was justified. My hope is that this will allow us to maintain the spirit of the combatant/non-combatant distinction, but also acknowledge the challenges and realities of contemporary warfare – both traditional and non-traditional.