57 Pages Posted: 20 Aug 2009 Last revised: 13 Jul 2010
Date Written: August 1, 2009
Why are all soldiers fair game in war? The laws of war, under their current interpretation, divide up populations into two classes – that of civilians and that of combatants – and accord each its own set of privileges and obligations. Taken together, the legal principles of military necessity and distinction strike up a bargain by which combatants are to be sacrificed for the protection of civilians. Under this bargain, all soldiers are fair game, regardless of their role, function, or the degree of threat they pose at any particular moment. Consequently, the killing of retreating soldiers in Iraq, the attack on officials meeting in Korea or shooting soldiers playing soccer in Bosnia – are all legitimate military operations.
This paper challenges the status-based distinction of the laws of war, which has so far been widely accepted by international law scholars, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. My argument stems from a recognition of the value of all human life, including that of enemy soldiers. I argue that the changing nature of wars – the decline in the importance of any generic ‘combatant,’ the growing civilianization of the armed forces, and the advance in technology – casts doubts on the necessity of killing all enemy soldiers indiscriminately.
I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible.
I discuss the practical and normative implications of adopting these amendments, suggesting some possible legal strategies of bringing them about.
Keywords: laws of war, distinction, private military companies, miltiary necessity, asymmteric warfare
Suggested Citation: Suggested Citation
Blum, Gabriella, The Dispensable Lives of Soldiers (August 1, 2009). The Journal of Legal Analysis, Vol. 2, No. 1, 2010; Harvard Public Law Working Paper No. 09-52. Available at SSRN: https://ssrn.com/abstract=1457434 or http://dx.doi.org/10.2139/ssrn.1457434