Preferring One's Own Civilians: May Soldiers Endanger Enemy Civilians More than They Would Endanger Their State's Civilians?

57 Pages Posted: 23 Apr 2014 Last revised: 2 Aug 2018

See all articles by Iddo Porat

Iddo Porat

College of Law and Business - Ramat Gan Law School

Ziv Bohrer

Bar-Ilan University - Faculty of Law

Date Written: April 22, 2014

Abstract

How much risk must soldiers take in order reduce civilian harm? Does it vary depending on whether the civilians are foreigners or from the soldiers’ state? These questions are passionately debated in moral discourse, as well as in international law. One strongly advocated view asserts that soldiers must shoulder most (if not all) risks, since they pose a threat to civilians and not the other way around. This Article, however, challenges that position. It focuses on the permission all have to defend themselves against threats they are not responsible for – rather than misguidedly attempting to ascertain who threatens whom. When soldiers are not culpable for placing theirs and civilians’ safety at odds (e.g., when the enemy uses the civilians as human shields), it is hard to see why they must shoulder all risks; neither they nor the civilians are responsible for the choice needed to be made between their lives. In such tragic choices, furthermore, when one’s life hangs at the balance, complete impartiality cannot be demanded. This understanding, regarding the legitimacy of partiality, also impacts the question of giving greater weight to the lives of the soldiers’ state civilians than to foreign civilian lives. Legitimate partiality is, however, limited. Accordingly, the Article concludes that soldiers must abide by the following moderately demanding standard: they must shoulder at least a non-trivial risk in order to reduce harm to civilians, even if foreigners. This, we argue, is also the proper interpretation of jus in bello proportionality in international law.

Keywords: proportionality, jus in bello, force protection

Suggested Citation

Porat, Iddo and Bohrer, Ziv, Preferring One's Own Civilians: May Soldiers Endanger Enemy Civilians More than They Would Endanger Their State's Civilians? (April 22, 2014). 97 GEORGE WASHINGTON INTERNATIONAL LAW REVIEW 99 (2015). Available at SSRN: https://ssrn.com/abstract=2427595

Iddo Porat (Contact Author)

College of Law and Business - Ramat Gan Law School ( email )

26 Ben-Gurion St.
Ramat Gan, 52275
Israel

Ziv Bohrer

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

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