The Combatant/Noncombatant Distinction in Light of the War on Terror: An Analysis with Pragmatic Suggestions

Cadet First Class Brandon B. Cole

United States Air Force Academy

PO Box 3476 USAFA, CO. 80841



            Since the end of Operation Iraqi Freedom, U.S. and coalition forces alike have been forced to combat an informal enemy.  This enemy fails to abide by not only just war theory, but also customary and international law concerning war.  This enemy not only targets and kills innocent people (non-combatants) but is killing our coalition forces in Iraq at an alarming rate.  Coalition forces in post-war Iraq are not fighting enemy soldiers but rather terrorists.

            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 Afghanistan and Iraq--coalition forces faced a terrorist enemy.  These two conflicts are, in turn, part of a broader war (the “war on terrorism”) that has as its explicit target those whose tactics violate a fundamental tenet of jus in bello:  the principle of discrimination.  Michael Walzer said, “ The laws of war say nothing about such matters; they leave the cruelest decisions to be made by the men on the spot with reference only to their ordinary moral notions or the military traditions of the army in which they serve (Walzer p.152).  In current post-war Iraq the very men and “such matters” Walzer is referring to are the line soldiers that compose the coalition forces and the activities and situations in war that lead these very soldiers to question whether the decision they are about to make is morally justifiable.    These men and women are engaged in a double-edged sword scenario.  They are forced on a daily basis to reconcile with the possibility of dying by an indiscriminate terrorist enemy, or alternatively killing a noncombatant by erroneously engaging a potential terrorist target that happens to be a confused or otherwise misinformed noncombatant. 

            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 Iraq.  The role of coalition forces during Operation Iraqi Freedom was to engage the enemy, with the most force permissible, to derive at a quick resolution to the conflict.  Epistemically, combatants were distinguished by uniforms.  Post-war Iraq dictates a different scenario.  Coalition forces now have more complex distinctions on which to base a decision on whether or not to engage a target.  In addition, they are constantly confronted with noncombatants confused by the current post-war environment, who sometimes appear to coalition forces as combatants.  It is when you have military members ingrained in the war model fighting criminals (terrorists) in an environment where the traditional acts of war cause confusion amongst the civilian masses that yields itself to a police state.         

Police engage a threat in a precautionary manner, but as evident in post-war Iraq, military forces engage an enemy in a reactionary manner, and this is the problem we are currently seeing in Iraq that is leading to the loss in lives of military members as well as the death of innocent civilians.  Police in general engage a threat by extensively looking into the situation before acting.  For instance if there is a hostage situation, police are inclined to determine the best way to solve the problem before acting.  In post-war Iraq we have soldiers in situations where they are not permitted the necessary time to properly determine the most appropriate action for a given situation.  In a situation where there is a speeding car heading towards a checkpoint that fails to stop the only action for military forces is to react.  This argument provides a motivating reason as to why coalition forces are having such a problem concerning the epistemic combatant / noncombatant distinction in post-war Iraq.  

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 bello is being violated by modern belligerents or a terrorist enemy that coalition forces are encountering.  This violation of distinction in mind, we must first uncover the metaphysical distinction between a combatant versus a non-combatant.  The most noteworthy principle when looking at this issue is the chain of agency defined by Jeffrie Murphy. 

            Our 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 Iraq is quite problematic, such that line soldiers have to embrace the aforementioned double-edged sword scenario.  Jeffrie Murphy defines combatants as members in the chain of agency ( p.181).  A combatant must be someone who is part of the logical and causal chain of agency.  For Murphy merely being causally or logically connected is not sufficient, therefore the farmer who grows crops that feeds the soldier cannot be considered in the logical chain of agency.  Conversely the pacifist on the battlefield who is pointing a gun and shooting over the head of the enemy is part of the causally connected chain of agency, making it reasonable for the enemy on the other end of the battlefield to assume the pacifist is engaging in an attempt to destroy him and engage him accordingly.  Therefore it is safe to assume according to Murphy that combatants are those of whom it is reasonable to believe that they are engaged in an attempt to destroy you (Murphy p.181).

            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).


            In post-war Iraq, coalition forces no longer have a clear interpretation concerning this metaphysical distinction.  This distinction becomes confusing for coalition forces because there is no clear delineation for coalition forces to determine who fits the above criteria of both the logical and causal chain of agency.  For example a speeding car that fails to stop at a checkpoint could be viewed as an open threat and one that would lead coalition forces towards engaging and neutralizing the posed threat.  It is this common scenario that has changed the epistemic distinctions that must be made to determine a combatant from a noncombatant.  With this scenario, coalition forces run the risk of mistaking a confused noncombatant for a combatant and herein lies the problem that is leading to the premature deaths of coalition forces as well as the death of many innocent civilians.  Looking only at the metaphysical distinction alone is not sufficient and thus coalition forces must also look to the epistemic combatant / noncombatant distinction—this is where the theoretical rubber meets the operational road.

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.

      During 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 post-war Iraq there is a very different scenario that coalition forces are faced with.  With the traditional marker of uniform wear no longer a factor, coalition forces are having difficult times making the epistemic distinction between combatants and noncombatants.  To help better understand the troubles coalition forces are having, again I turn to Jeffrie Murphy.  Murphy who through his principle of reasonability attempts to make the epistemic dilemma much more clear.  While the standard is not fool-proof, it is an excellent starting point for analysis.

            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).

            In 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 Iraq. 

Unpacking Reasonability and “Due Care”

            To fully understand the principle of reasonability for the purposes of post-war Iraq, it is important to look at it through a common case study plaguing coalition forces in Iraq.  On March 30, 2003 at a checkpoint outside the Iraqi city of Najaf, four American soldiers were killed as a car ran a checkpoint in a suicide car bombing attack.  Immediately following this incident, American soldiers were put on alert and were told to engage any vehicle that failed to stop at a checkpoint.  From this example, American command and control determined that any vehicle that failed to stop at a checkpoint must be part of what Murphy would describe as both the logical and causal chain of agency.  In addition, command and control determined that any vehicle that failed to stop at a checkpoint must be an epistemic marker of a combatant (McCutcheon p.2).

            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.

            This current case study of post-war Iraq has set a precedent to which coalition forces are acting upon and in the process the toll of non-combatant and soldier deaths have raised dramatically.  When unpacking the reasonability principle, I have come to the conclusion that coalition forces are acting and engaging potential targets without clearly deciding one; if the potential target is part of both the logical and causal chain of agency and two; if the potential target is displaying reasonable epistemic markers worthy of being morally engaged as a combatant.  I do not draw upon this conclusion by placing blame on the line soldier, rather I say this because the soldiers themselves are not being provided with the tools necessary to take proper due care.  This in turn leaves them to make split second decisions based on empirical evidence of their fellow soldiers who have died in the very situation they might be facing.  Reasonability in terms of the war on terror must be the ability for the line soldier to make a morally informed decision as to whether or not a target is a combatant or not.   As of now, the rules of engagement that the line solider is required to follow in the theater of post-war Iraq can be and are very loosely interpreted.  In a news brief by the Commander of ground forces in Iraq, Lt. Gen Ricardo Sanchez spoke on ROE’s surrounding checkpoints.  This is what he had to say when questioned about them,

           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 France in WWII where pilots would put themselves at greater risk to insure that civilians had the greatest “due care” possible before carrying forth with their bombing raids (Walzer 157). 

            Ultimately for the coalition soldier in post-war Iraq, they first must decipher whether or not the target fits into the logical and causal chain of agency.  If that distinction cannot be clearly and quickly made then they must look to the principle of reasonability to determine if the target does in fact meet the criteria of a combatant.  Finally they must provide the most “due care” possible for any and all non-combatants.  At the end of the day once all of these principles have been thought through it is still the job of the soldier to put himself at greater risk in order to avoid taking the lives of non-combatants.  However in the war on terror, this puts the soldier at a far greater risk than need be and this is the current problem in post-war Iraq.  In essence the soldier is put at risk in this current post-war conflict because where the soldiers need to be taking greater due care they are interpreting the ROE’s in a loose manner, in part probably because the counter-measures in place for their safety (and that allow them to be more confident about their combatant/non-combatant judgments) are not sufficient. 

            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. 

            By 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 Iraq are not sufficient.  They consist of a warning sign prior to a checkpoint indicating for the vehicle to stop.  With the post-war Iraq case study previously mentioned one sign is not enough.  There are many other measures that can be put into place in order to help distinguish between a combatant and a non-combatant.  I suggest that not only is there one sign before the checkpoint but five miles prior to the checkpoint there needs to be a warning indicating the vehicle must stop ahead in all the dialects of the theater.  Then two miles prior to the checkpoint there should be another sign.  Finally there should be spikes set up a quarter of a mile from any coalition forces in case the vehicle fails to stop.  In order to completely provide safety for all parties, coalition forces should be required to set up a half mile behind the checkpoint and when a car finally stops then the forces should approach the vehicle.  By doing this if a vehicle is attempting to bomb whatever the checkpoint is protecting the spikes are set-up a quarter mile before reaching the objective which would give reasonability enough to the forces to engage the target.  Because it is the line soldier who is forced to make the tough call they should be provided the same education that the commanders who are often behind the scenes have.  Officers are taught military ethics in their formal education which provide a groundwork for them to be able to better make the tough call in an educational manner.  I think it is important that in the line soldiers’ training they are afforded the same education in the realm of military ethics that their commanders have.  When the lone soldier is not confronted with traditional markers they may tend to act in a more irrational manner as pointed out with the checkpoint case study.  By giving them the tools necessary to better identify the modern belligerent when the traditional markers are unavailable a decrease in non-combatant deaths will take place because the line soldier is now capable of determining agency and using the principle of reasonability to provide the most “due care” possible for noncombatants.

            Within this paper I have explored the combatant / noncombatant distinction in the context of the war on terrorism and more specifically post-war Iraq.  I introduced a scenario that is currently facing American and coalition forces.  The double-edged scenario I talk about is leaving our fighting forces in situations in which they face an indiscriminate enemy that is causing the death of noncombatants and killing our forces at an alarming rate.  To flesh out this scenario, I talked about the metaphysical combatant / noncombatant distinction and what is needed in way of the logical and causal chain of agency for the line soldier to engage the enemy in a morally permissible manner.  Next I discussed the epistemic combatant / noncombatant distinction and what epistemic markers need to be in place for the line soldier, using the principle of reasonability, to engage the enemy in a morally permissible manner.  To encapsulate these two discussions I revisited Walzer’s principle of due care, and what the line soldier needs to do to provide the most due care for noncombatants as possible.  Lastly I ended the paper with some pragmatic suggestions to hopefully bring to light what American and coalition forces could do to ensure that the above discussions begin to come to fruition. 



McCutcheon, Peter. “Iraqi women and children shot at US checkpoint.” ABC Online 28   

            September 2003. American Broadcasting Corporation. 28 September 2003.


Murphy, Jefferie. “The Killing of the Innocent.” Moral Dimensions Of The Military Profession.

            New York: American Heritage Custom Publishing, 1997. 179-187.

Pfaff, Tony. “Non-combatant Immunity and the War on Terrorism.” Online posting.

            3 September 2003. JSCOPE website. 3 September 2003. <http://www.usafa.


Sanchez, Ricardo. News Briefing. Online posting. 25 September 2003. FDCH Political

            Transcripts. 25 September 2003.<


Walzer, Michael. Just and Unjust Wars. New York: Harper Collins, 1992.