The principle of noncombatant immunity, also known as the “principle of discrimination”, emphasizes the idea that there should be a distinction between the participants in war (such as soldiers, for instance) and noncombatants - mainly, the civilian population. The principle encompasses both a permission, as well as a prohibition: the permission to attack enemy combatants and the prohibition to kill noncombatant civilians. Its roots can be traced back to various theoretical structures, such as the principle of punishment, self-defence or the survival of the collective.
Classical just war theory identifies the soldiers and the military, in general, with the combatants. On the other hand, civilians are perceived as noncombatants, as they are not directly involved in the conflict and do not represent a great danger to their opponents. This constitutes the moral perspective on the issue and it is mainly centered around the idea of threat in war. Conversely and embracing the legal point of view, combatant status is granted to those persons who satisfy a specific set of criteria, such as “distinguishing themselves visibly at a distance by some conventional sign, carrying their arms openly, subordinating themselves to a hierarchy of authority and command, and obeying the laws of war.” (McMahan, Killing in War)
With the advent of terrorism, is the integration of soldiers in the category of combatants and of civilians in that of noncombatants still accurate? Or, better said, has this classification ever been strong and clear enough as to provide a meaningful set of guidelines with respect to the proper conduct in war? Opinions are divided. While there are some that argue for the validity of the distinction in this precise connotation, others tend to be more skeptical. Their main arguments have been synthesized in the two following differentiations regarding the demarcation line between combatants and noncombatants:
1) The intentionality of the participation in war: innocence v. non-innocence v. moral culpability;
2) The justness of the cause of the war, which is applicable to civilians only.
An individual can be considered innocent if she does not represent a threat in war. A non-innocent person is one that “can be engaged in an objectively unjust proceeding while being blamelessly ignorant of its unjust character.” (Arneson, Just Warfare Theory and Noncombatant Immunity). By using “blamelessly ignorant”, negligence and recklessness are ruled out. Conversely, the morally culpable constitutes a threat both objectively, as well as subjectively. In this sense, she is performing an action for the cause of the war and, at the same time, she is also aware of the finality of her acts.
Civilians may bear responsibility for a war and be transformed into combatants not only through commission (like supporting the war through labor or propaganda), but also through omission. In the latter sense, Jeff McMahan talks about the duty to oppose unjust wars. This duty can come under two forms. We can have, on the one hand, an unjust war if the country which declares the war does not rely on a just cause. In this sense, one would have to oppose the declaration of war itself.
The second possibility refers to the situation when a state is being attacked by another state/organization that has a just cause for going to war. As both belligerents cannot have a just cause, but only one of them, it would follow that the attacked country is fighting an unjust war. In this case, should one add to the duty to oppose the unjust war the duty to oppose the action that constitutes the cause of the war? Probably yes, as failing to oppose the action that triggers the conflict may perpetuate the existing injustices and, thus, provide sufficient grounds for the future outburst of other wars.
The major problem that one can encounter with respect to the criterion of the justness of the war’s cause is that of the quantity and quality of the information received by the population on this topic. Due to possible information asymmetries between civilians and their government, it is difficult to tell whether the former have the necessary amount of information in order to form a correct judgment regarding the justness of the war’s cause. In this way, it could be possible for people to believe that they are fighting for a just cause, when, in reality, they are not. Consequently, they would fail to comply with the duty to oppose this type of war. Can they be morally blamed for this?
Even if it is hard to identify the ideal type of the combatant and the noncombatant, one irrefutable point that the principle of noncombatant immunity makes is the following: there are some individuals who should not be killed in war in virtue of their noncombatant status. The problem with terrorism is that terrorists aim at making absolutely no discrimination regarding their targets.
Terrorists consider that all their victims are morally culpable and, hence, in a position to be attacked. This can be deduced from the randomness of their targets. In this sense, they plan attacks in crowded places, such as airports, subways and the like. Although there are divergent opinions on what a combatant is, there is a general consensus that children cannot constitute legitimate targets in war under any circumstance. By setting no limits to the war theater, terrorists disregard this basic moral and military imperative. Similarly, terrorists do not discriminate between the citizens of their targeted country and foreigners. Thus, when engaged in a military conflict with another country/ countries, one should limit one’s attack to the direct opponents and avoid involving third parties. This principle is rooted in the ideas of war accountability and unnecessary harm. Yet, terrorists fail to comply with it. Interestingly enough, many terrorist acts happen in airports, which are, by definition, places of international transit that gather individuals of diverse nationalities and citizenships.
The principle of noncombatant immunity, one of the founding blocks of the just war theory, poses a great problem to the moral permissibility of terrorism as a type of warfare. In the end, I would like to finish this post with a beautiful and more relevant than ever Leo Tolstoy quote:
[There are] men who assert that the contradiction between the striving and love for peace and the necessity of war is terrible, but that such is the fate of men. These for the most part sensitive, gifted men see and comprehend the whole terror and the whole madness and cruelty of war, but by some strange turn of mind do not see and do not look for any issue from this condition.
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