Killing Naked Soldiers: Distinguishing between Combatants and Noncombatants
May, Larry, Ethics & International Affairs
In 1625 Hugo Grotius argued, "War must be carried on with not less scrupulousness than judicial processes are wont to be." (1) Grotius's views form the basis for both modern just war theory and contemporary international legal theory. In this essay I will discuss one principle that has been a cornerstone of both of these theories, the principle of discrimination of distinction--namely, that war tactics must not be employed that fail to distinguish the group of combatants from that of noncombatants, refraining from attacking noncombatants but justifiably attacking combatants. I will offer various reasons to reject the traditional principle of discrimination, on both conceptual and moral grounds. At the end of the essay I will offer an amended principle. It is my contention that if we follow Grotius's injunction that this principle be followed with minute scrupulousness, fewer military tactics will be justified than is normally thought.
Just war theorists contend that tactics are illegitimate unless they can be used in such a way so as to distinguish combatants from noncombatants. Contemporary international legal theory also draws heavily on the principle of discrimination. The Geneva Convention (IV), as interpreted in the Second Protocol of 1977, says: "The civilian population as such, as well as individual civilians, shall not be the object of attack ... Indiscriminate attacks are prohibited." (2) The principle of discrimination also relies on the idea that it is possible to distinguish, in a morally significant way, those classes or groups of people who participate in wars from those who do not. (3) The categories of "soldier" of "civilian" "combatant" or "noncombatant," are thought to be stable. Yet there are serious conceptual and normative problems with identifying such social groups. In this essay, I argue that, because of these problems, the traditional principle of discrimination offers no clear guidance because it offers no clear, morally relevant line between those who fight and those who do not. Nonetheless, I argue that a distinction of this sort should be maintained, although one that will restrict tactics in war far more than is normally recognized.
When soldiers go into war, they are told quite explicitly not to attack civilians, but that they can kill combatants. In the Gulf War of 1990-91, for instance, all U.S. soldiers leaving for Kuwait were given the "Pocket Card on the Rules of Engagement." At the bottom of the card was the following summary of the rules governing the conduct of U.S. soldiers in this war:
1) Fight only combatants
2) Attack only military targets
3) Spare civilian persons and objects
4) Restrict destruction to what your mission requires (4)
These relatively simple rules reflect a longstanding principle of the moral and legal conduct of war, the principle of discrimination. And this principle is still interpreted traditionally. As one influential contemporary international law textbook puts it: "The principle of discrimination, about the selection and methods, weaponry, and targets ... includes the idea that non-combatants and those hors de combat should not be deliberately targeted" for attack. (5)
This essay proceeds as follows. I begin by spelling out the conceptual and normative problems with the principle of discrimination, as it is traditionally understood. I then consider the example of the naked soldier as a test case for thinking about how to draw the distinction between combatants and noncombatants. I then return to metaphysical issues, setting the stage for thinking that war should not be understood in a collectivist way. I explain why I think the principle of discrimination is nonetheless worth saving, and offer a beginning attempt to provide a new restricted principle. I address various objections to my revised principle, and end with a discussion of the very status of using collective procedures in identifying who can be killed. …