Questioning Civilian Immunity
Aaron Xavier Fellmeth
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Texas International Law Journal, Vol. 43, 2008
The discrimination principle, long and widely recognized as a rule of customary international law and codified in several core humanitarian law treaties, prohibits combatants from directly attacking civilians and civilian property. However, civilian immunity as implemented in international humanitarian law is not universally acclaimed. The twenty-first century begins, much as the twentieth ended, with estimates as high as hundreds of thousands of civilians being slaughtered in international and civil wars. Reports of recent international conflicts tell of civilian deaths exceeding combatant deaths, sometimes by multiples. But even beyond the law's pragmatic failure to reduce casualties, recent discussions have attacked the very concept of civilian immunity, questioning its moral coherence, its independence from the ius ad bellum, and its impartiality toward underrepresented classes such as women or ethnic minorities seeking independence or secession. This article explores both theoretical and operational challenges to civilian immunity to determine whether the concept merits preservation, alteration, or replacement. These critiques of civilian immunity and its underlying doctrines will be considered and analyzed. Ultimately, this article concludes none are sufficiently trenchant to justify rejecting altogether civilian immunity as currently embodied in international law. But each critique makes important observations about the weak points in the implementation of civilian immunity in international humanitarian law, which in turn suggest useful avenues of reform to strengthen civilian immunity in pursuit of a more meaningful and enforceable ius in bello.
Number of Pages in PDF File: 45
Keywords: humanitarian law, civilian immunity, international lawAccepted Paper Series
Date posted: May 16, 2009
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