Christopher Finlay: Fairness and Liability in the Just War: 1
Combatants, Non-Combatants, and Lawful Irregulars
Fairness and Liability in the Just War:
Combatants, Non-Combatants, and Lawful Irregulars
Christopher J. Finlay*
University of Birmingham
Abstract
Critics of non-uniformed ‘irregular’ warfare argue that it is unfair both to non-combatants and to enemy ‘regulars’. I contest that view by asking how the leaders of a people forced to fight a just war should distribute risks
within their own population. Insofar as all are the victims of aggression or unjust occupation, I argue, no citizens
on the just side are morally liable to attack. But to benefit from the restraining effects of the principle of discrimination, some members must be rendered legally liable. Political leaders must therefore find the most appropriate distribution of the risk of harm, first, by deciding which and how many citizens to select as ‘combatants’; and second, by specifying how far to distance combatants from civilians. I identify four normative considerations that must be taken into account: each possible arrangement must (1) fulfil basic requirements of fairness
domestically; then, between equally fair arrangements, leaders ought to determine which offers the most auspicious balance between (2) the goal of survival during the war (of the society and as many of its members as possible) and (3) the goal of winning it and, hence, eliminating the injustices that caused the war; finally (4) the
arrangement should not be unfair to enemy combatants. On this basis, I argue that in spite of the increased risks
it poses to civilians, limited ‘irregular’ warfare might be deployed legitimately against occupiers where the use
of uniforms would have rendered insurgents vulnerable to targeted assassination or arrest prior to actual combat.
1.
Recent debate about the use of non-uniformed ‘irregular’ soldiers in wars against occupying
‘regular’ forces highlights the harms this practice inflicts on civilians when it contributes to
an increase in the rate of collateral damage arising from enemy attacks (Meisels 2008: 91,
104-8; Chiu 2010: 55; Roberts 2008: 948-9; Nabulsi 1999: 175-6 and chapter 5, passim). This
concern raises an important question about the normative dimensions of war more generally,
one that has received scant attention in contemporary just war theory: namely, how should
the leaders of a warring side decide on matters that affect the distribution of the risk of harm
within their own population? Examining this question opens up a crucial political dimension
of war that falls between the moral and legal concerns that are currently the main focus of
discussion. It also provides a basis for defending a limited use of irregular forces in wars
against occupation.
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In this article, I identify the parameters of the issue by analyzing the role that wartime
leaders play in deciding how the principle of discrimination will apply to their citizens
through two decisions: first, concerning which of them and how many to designate ‘combatant’ and second (at least in some instances) when determining the degree of spatial separation
and the type of visual distinction to interpose between the resulting categories of combatants
and non-combatants. I call this issue the ‘problem of in bello justice’: it is distinct from the
jus in bello as such (the general principles governing the conduct of war), being concerned
with the question of how the jus in bello rule of discrimination ought to be specified and applied in a particular conflict by a particular side. Whereas the jus in bello is concerned with
how combatants and non-combatants ought to be treated, the problem of in bello justice is
concerned with the question of how the two categories ought to be produced, a question that
each side must find a way to answer prior to combat (cf. Kinsella, 2005; 2006). At the same
time, the problem of in bello justice raises a different question from that of the respective
(de)merits of conscription and volunteer armies, though it may turn out to be relevant to addressing that issue (which is beyond the scope of the present article; cf. Rawls 1999: 334).
Before proceeding with the argument, let me point out some simplifying assumptions
that I make in my analysis and enter a caveat about the type of theory I offer. First, I assume
that any war involves at least two fairly unified ‘sides’ and for the sake of neatness I refer to
them as ‘peoples’ (to include nations, states, or any sub-state or sub-national community
identified as a ‘party’ to war, i.e. a ‘side’) and to their individual members as ‘citizens’ (i.e.
irrespective of whether, for instance, individuals on a non-state side are legally recognized as
such). Second, by ‘wartime leaders’ I mean the government in power at the time of war in the
case of states, or, in the case of non-state sides, the political leadership of a movement of resistance, revolution or national liberation. I assume in the latter case that there is a single le-
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gitimate leadership and set aside the problem (which is often very important) of rival groups
vying to lead the same movement.1 Third, my argument builds on the broadly liberal premises shared by ‘revisionist’ just war theorists who follow Jeff McMahan in assuming that violence is morally justified (as distinct from legally permissible or impunible) only where either
the target has rendered themselves liable to attack by contributing in a significant way to a
wrongful threat of harm or, if foreseeable collateral harms are unavoidable, where considerations of the lesser evil justify a proportionate infringement of rights. But as I will indicate inter alia, the case I present for the significance of ‘in bello justice’ is also relevant to ‘traditional’ accounts of the just war. I also assume without argument that ‘just cause’ for war
arises only in the face of prior or imminent aggression, unjust occupation (including colonization), or systematic and severe violations of human rights. Some are sceptical of the very idea
of a war justified or regulated according to (broadly) liberal norms; I acknowledge without
further comment at this point that those who do not share the theoretical commitment to liberal conceptions of justice, human rights, and (liberal) fairness or do not recognize their relevance to armed conflict may find my argument unpersuasive. Having said that, my arguments
about the necessary indeterminacy of some dimensions of liberal just war theory indicate
ways in which it has to be more open than its critics sometimes assume to variations in the
normative priorities of the different peoples or cultures engaging in warfare.2
In part 2, I pursue a precise specification of the problem of in bello justice by showing
that none of the various schools of thought in contemporary just war theory offer a full account of how the principle of discrimination provides action guidance to participants in war. I
argue that for a people fighting for a just cause there is neither a natural moral basis for se1
On importance of ‘legitimacy’ for judging the ability of non-state armed resistance movements to declare war,
see Finlay (2010).
2
For a challenge to the conceptions of morality and justice at work in Walzer’s just war theory in particular, see
Kochi (2009).
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lecting ‘combatants’ from among its own citizens (since, as victims of aggression or unjust
occupation none of its citizens are morally liable to attack) nor a determinate basis in international law. But in order to benefit from the restraints imposed by the Law of Armed Conflict
(LOAC), it is necessary for its leaders to trade off the legal immunity from attack of some
citizens in order to protect others. Since (by hypothesis) the hazards of the war constitute a
moral injustice no matter which citizens face them, it is incumbent upon their leaders to find
the most just way to distribute risks and burdens among them. I argue that the same side
could legitimately consider distributing the hazards of war in a range of different ways across
its members by choosing combatants in larger or smaller numbers or, in some types of war,
by reducing or expanding the separation between combatants and civilians. In part 3, I turn to
the principles that ought to guide leaders in their choice of distribution. I argue that they must
first limit themselves to considering only arrangements that are fair domestically. Where
there is more than one such arrangement, then the choice should be guided by the question of
which offers the best available balance between two goals: first, the goal of bare peace,
meaning the survival of the society and as many of its members as possible during the course
of the war; and, second, the goal of just peace, meaning the elimination by winning the war
of those injustices that made it necessary to fight. Finally, as I discuss in more detail in part 4,
the arrangement should not impose unfair disadvantages on enemy combatants.
There is scope in any war for deliberating about policies affecting the level and type
of exposure to violence that a society and its members will experience. But in part 4, I return
to the question of irregular war in particular. According to the 1977 First Additional Protocol
to the Geneva Conventions, it is permissible to deploy non-uniformed, irregular forces in
wars directed against ‘colonial domination and alien occupation and against racist régimes in
the exercise of [the] right of self-determination…’ (Article 1(3)). The moral validity of the
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Protocol is widely contested, however, commonly on the basis that it is unfair both to noncombatants on the same side as the irregulars and to enemy regulars (Meisels 2008: 104-8; cf.
Fletcher 2002: 108; also sources quoted in Solis 2010: 132; Roberts 1985-6: 109, 129; Dinstein 2004: 46; Chiu 2010: 49, 55). I draw on the analysis offered in parts 2 and 3 to argue
that forgoing the use of uniforms might sometimes be the most just way to distribute risks for
a people forced by the injustices of others to fight a liberation war. Moreover, I argue that in
the circumstances of military occupation specifically, the use of irregulars permitted in the
First Protocol may help restore fairness between combatants on opposing sides where it is the
only means of avoiding the systematic elimination of insurgents by arrest or assassination in
advance of combat.
2. Discrimination and the Legal Liability of Just Combatants
The principle of discrimination is meant to guide the actions of soldiers in war, indicating
which individuals they may attack deliberately and directly and which they must regard as
immune. The principle cannot perform this role, however, until it is given a definite content
by the states or insurgent peoples that are parties to a given conflict. This content, I argue, is
subject to normative and ethical considerations that are distinct from both the LOAC as such
and what Jeff McMahan calls the ‘deep morality’ of war. They constitute a distinctively political dimension to the justice of war that mediates between the claims of morality and law
(and between the jus ad bellum and the jus in bello).
2.1 From a Two-Tiered to a Three-Tiered Theory
To substantiate this argument, let’s begin by asking what the just war principle of ‘discrimination’ requires of participants in war. However interpreted, it is clear that discrimination
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condenses two propositions. It is often defined with a much stronger emphasis on the first,
the one that prohibits soldiers from intentionally attacking those who are not legitimate targets; this is its restrictive force. But discrimination also expresses a permission, allowing at
least some soldiers to attack legitimate targets directly and intentionally (Hurka 2005: 36;
McMahan 2004: 718; 2009: 204; Zohar 1993: 606).
In the theory of the just war, the default position must be that everyone is immune
from attack until a valid reason can be given for harming them (Walzer 2000: 136, 145 n.).
The major burden in any account of the principle of discrimination, therefore, is to explain
the occurrence of liability rather than immunity: we have to ask, who is a ‘legitimate target’
in war and why (Walzer 2000: 137)? Scholars are deeply divided on the issue. Broadly speaking, two approaches are possible: first, an ‘asymmetric’, moral approach; and, second, the
legal view, encapsulated in the doctrine of combatant equality and defended on moral
grounds in the so-called ‘Orthodox’ theory of the just war (McMahan’s term in 2005: 10;
Walzer 2000: 34-44; cf. Benbaji 2009).
The first view arises from considerations purely of individual responsibility and liability to harm (McMahan, 2004 & 2009; see also Primoratz, 2002; Rodin, 2002; McPherson,
2004; Coady, 2008b, chapter 6; Fabre, 2009). This perspective yields a result that is both
complex and, in principle, highly determinate. Those responsible ‘for an objectively unjust
threat of harm’ are liable to be attacked when doing so is a necessary and proportionate
means of prevention or remedy (McMahan 2009: 35; cf. Fabre 2009: 37). Those not responsible for an injustice are not liable to be harmed intentionally in addressing its effects. Discrimination does not, in this perspective, distinguish between combatants and non-combatants
but, in a qualified sense, between the guilty and the innocent. As McMahan’s analysis shows,
however, this does not necessarily lead to a straightforwardly asymmetric war ethic in which
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unjust warriors are the legitimate targets of force and all others are immune (civilians on either side, neutrals and just warriors). Civilians on the unjust side are sometimes responsible to
a higher degree than the unjust warriors they send into the battlefield to fight on their behalf
(McMahan 2009, chapter 5; Primoratz 2002: 239-40; Fabre 2009: 49-50, 63). Moreover, if
unjust warriors engage in fighting as a result of such extenuating circumstances as coercion
or if they have truly been blinded by non-culpable ignorance or their leaders’ propaganda,
they might qualify as ‘innocent threats’. As such, they too could be immune or at least they
might suffer less liability than the civilians who caused the war (Zohar, 1993: 615). On the
just side, soldiers as well as civilians retain their moral immunity provided that they do not
engage in war crimes. But faced with ‘innocent’ unjust warriors, McMahan argues, just warriors might be obliged to expose themselves to higher levels of personal risk in order to
minimise even military casualties on the enemy side (McMahan 1009: 192-8; Hurka 2008:
137).
A ‘purist’ moral perspective (as Benbaji calls it, e.g. 2009) would give the principle of
discrimination a highly determinate content and it could therefore offer very specific guidance to soldiers on how they ought to fight. But it faces insurmountable practical difficulties,
not least of which is the fact that those who are morally (as distinct from legally) liable to attack are often indistinguishable amongst the wider population, whether of soldiers or of civilians (McMahan 2009: 225; Fabre 2009: 63; Zohar 1993: 615-616; Lazar 2010: 211; Waldron
2010: 93-5). While highly determinate, therefore, the moral perspective is also likely to prove
too nuanced to be useful as a source of practicable action-guiding principles.
The second (‘traditional’) approach is also the dominant one in international law: it
distinguishes between those who are and those who are not engaged in combat, irrespective
of the side for which they fight, and allocates the same privileges and liabilites to both. Not
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only is this view supported in the Orthodox view on the morality of the just war, but even
amongst theorists of moral asymmetry, many endorse it as the most suitable framework for
the law of war at the present time on grounds of moral pragmatism (McMahan 2009: 234;
McMahan 2008: 27-8; Hurka 2008: 45; Coady 2008a: 164). In the absence of a global judge
competent to make timely and authoritative pronouncements under the jus ad bellum,
McMahan, for instance, argues that the law of war cannot presently be altered in such a way
as to reflect the philosophical insights of the deeper moral view directly. The ethics of war
therefore have to be analysed on two normative levels, the purely moral and the legal
(McMahan, 2008).
Whichever approach one finds most persuasive, the same problem arises that I want to
identify here regarding discrimination as an action-guiding principle. To offer meaningful
practical guidance to soldiers engaged in war, the principle needs a determinate content, i.e.
we need to be able to specify not only that some people are and some are not legitimate targets, but also which particular individuals will be put into which category on a given sideand
for the purposes of a given conflict. Setting moral purism aside as presently impracticable,
none of the remaining approaches – McMahan’s two-level analysis, the traditional view, or
other variants of the traditional conception such as Yitzhak Benbaji’s – give a complete account of how the principle of discrimination can provide action-guidance because none reflect on the important normative dimensions of the problem of selecting and marking out a
group of individuals to put forward as legitimate targets in war.
I accept the argument that since it cannot be grounded directly in natural morality, the
principle of discrimination at the heart of the jus in bello and the LOAC must be at least
partly conventional in nature, constituting, in effect, a second level of analysis in additional to
the ‘deep’ morality of war (McMahan, 2008; Benbaji, 2009; Waldron, 2010). But I want to
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argue in addition that there is a third level occupying a space between the first two. The theory of the just war, I argue, is too abstract if it considers only the law of war and the morality
of war and is therefore incomplete. It comprehends a highly determinate moral level with little or no practical meaning and a legal level without a determinate, action-guiding content. A
third level is needed because of the abstract nature of international law. While the LOAC
specifies that those identified in a suitable way as combatants are liable (legally) to be acted
upon in a certain way, it doesn’t directly indicate which or how many individuals to select for
service in a military role and thus to identify to the enemy as ‘combatants’ and legitimate targets of armed force. It offers some guidance by regarding certain classes of person as ineligible for combatant status, children in particular (Solis 2010: 130), but isn’t otherwise specific.
So, given that on any non-purist argument (including McMahan’s) we are usually to follow
international law in practice (even where it is in tension with the level of basic morality
(McMahan 2008, section 2.6.1)), there must be a third level at which abstract, formal principles are given concrete content and, hence, made practically meaningful.
My argument is that the abstract nature of the discrimination principle therefore
leaves those who lead each party to a particular conflict with a necessary, active role to play
in giving it concrete meaning and practical significance. By deciding who will have combatant status and how the resulting class of combatants will conduct its relations with civilian
life, they indicate to soldiers on the opposing side how to apply the principle of discrimination during the fighting and thus influence a factor important in determining how risk is distributed among their own citizens.
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2.2 Just Warriors and the Loss of Immunity
I will refer to the issues arising from the need to decide in this way, who will bear the risks
and burdens of war and how they will do so as ‘the problem of in bello justice.’ Before turning to the question of how political leaders of a warring side should address the problem, it is
necessary to say something further about why the problem arises specifically for peoples with
a reasonable claim to be fighting a just war. This, in turn, helps clarify exactly what is demanded of the leadership of a just side in formulating an appropriate conception of in bello
justice.
On McMahan’s two-tiered analysis, the fact that unjust warriors lose their normal
immunities under the LOAC is relatively unproblematic since, by threatening unjust harms,
most of them simultaneously forfeit their moral right not to be attacked. However, forfeiture
cannot generally explain the same loss of rights by just warriors since the harms they threaten
are presumed to be justified and therefore do not give rise to liability. Yet, like their unjust
opponents, just warriors lose the right under the LOAC to expect their state’s usual level of
protection from harm. In fact, by putting them forward and designating them ‘legitimate targets,’ the state actively aids and abets in their killing. Moreover, because the LOAC treats
their deaths as impunible (Kutz 2005: 150), just warriors lose a second moral(perhaps natural) right, namely, the right to see their killers pursued by legitimate legal authorities and punished (usually by their own state) (Benbaji 2009: 595; Locke 1988: 273-4; Simmons 1993:
186). As Benbaji writes, ‘States equalize the legal status of soldiers by immunizing enemy
soldiers from post bellum legal prosecution’ (2009: 600). Just as importantly, non-combatants
too lose this right or it is overridden if they are killed or otherwise harmed as the permissible
side-effect of actions aimed by unjust warriors at military targets on the just side.
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If the just warriors’ liabilities under the LOAC cannot be explained in terms of rights
forfeiture on moral grounds, then we have to explain them in some other way. On Joel
Feinberg’s account, there are three different ways in which one can lose rights: ‘they can be
(a) voluntarily given away or exchanged; (b) lost involuntarily through negligence or wrongdoing or (c) taken away by some other party’ (Simmons’s synopsis in 1993: 46; Feinberg
1978: 110-14). Option (b) corresponds to forfeiture while (a) corresponds to waiving a right
or, more strongly, its ‘alienation.’ The third possibility, (c), could take a number of different
forms: rights might be taken away permanently; or they might be infringed, in which case
they are recognized as valid in principle even when they are overridden by considerations of
the lesser evil in practice; finally, they might be suspended, that is, taken away temporarily
and for certain purposes but restored once the occasion for suspending them has passed.
Where citizens are recruited by means of conscription, then many of their usual
peacetime rights may be seen as having been infringed, e.g. their rights of free movement, or
free expression, or privacy. Insofar as the LOAC requires, furthermore, that the right of the
just warrior to be protected from harm is taken away or overridden only for the duration of
the war, we might consider using the term ‘suspension.’ But the right to justice for those who
are killed or harmed as a result of legally permitted actions by unjust warriors is lifted with
permanent effect. For the sake of simplicity, I will refer below to this bundle of requirements
imposed on a just side by the LOAC as a ‘prescription’ of rights, i.e. a ‘limiting or restricting
[of] another’s right without that person’s participation’ (Simmons 1993: 46-7). With forfeiture ruled out, we are therefore left with two other possibilities to account for the loss or truncation of the just warrior’s rights, namely, alienation or prescription.
Citizens might volunteer for military service in the face of an unjust attack on their
country or an unjust occupation and thereby waive or alienate their normal rights and protec-
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tions. I assume, however, that alienation is of less present interest for three reasons: first, because if fully realized it wouldn’t pose the problem of in bello justice in its most acute form.
If a sufficient number of competent individuals were to volunteer freely to fight in a given
war, then the distribution of combatant liabilities could be regarded as legitimate on the basis
of consent alone or at least as significantly less troubling from the point of justice than the
liabilities suffered by conscripts (though leaders would still need to determine how many of
the available volunteers to put forward for combat). Notice, however, that the fact that a just
side recruited an army entirely of volunteers would not make the killing of its (just) warriors
by their enemies justified. Thomas Hurka has argued that where they freely volunteer to fight
subject to the rules of war, just warriors make it ‘not unjust’ that they are subject to being
killed by unjust warriors (Hurka 2007: 210; cf. Chiu 2010: 52). My point, by contrast, is that
it is the distribution of legal liabilities to (morally unjust) harm under the LOAC, in such
cases, that is ‘not unjust’ rather than the unjust warriors’ attempts to kill just warriors. Under
such a distributive scheme, truly voluntary just warriors would still suffer moral injustice
from their enemies, even if they suffered none from their own state or people. The problem of
in bello justice, by contrast, can be seen most clearly in circumstances where the recruitment
of a sufficient number of able volunteers is impossible.
Second, it is also very rare to find an army recruited exclusively on the basis of voluntary alienation. Since the end of the Vietnam War, for instance, the US has drawn its combatants from a professional, volunteer army, but as many critics emphasise, the success of the
American military in recruiting enough soldiers partly relies on a combination of material
inducements and the relative poverty of those to whom they are offered (Massing 2008: 3436; Simmons 2001: 44 & 57-8). It seems likely, therefore, that this case and others will pose a
similar ethical problem to that of a conscript army since the ‘volunteers’ are subject to forms
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of structural coercion that raise questions of fairness similar to those raised by conscription as
such. Third, and probably most importantly, alienation is unlikely to serve as an explanation
for the fact that the killing of civilians is impunible when it occurs as a side-effect of legally
permissible action by unjust warriors.
I will therefore concentrate primarily on the third way in which individuals might lose
their rights for the purposes of just combatancy or as permissible civilian collateral damage,
namely, through the prescription of their rights by the state or, in a war of national liberation,
by the provisional government or political leadership. A conception of in bello justice based
on prescription would see political leaders trying to decide how best to meet the demands of a
war by seeking the most just distribution of risks and responsibilities within the community
they represent and on this basis ordering individuals to enlist in a justified infringement, suspension, or more durable prescription of ordinary rights (cf. McMahan 2010: 349).
There is a second dimension to the problem of in bello justice whose relevance is specific to non-state liberation armies. If the leaders of a people considered, in addition, the use
of irregular methods of warfare, foreswearing the use of uniformed soldiers in favour of unmarked guerrillas and deploying them in close proximity to civilians, then the normative
proposition that they would have to justify is that an expanded prescription of rights can legitimately be imposed on their non-combatants too, i.e. in addition to seeing their right to
punishment for (proportionate collateral) harm overridden, non-combatants would suffer a
partial infringement of their normal right to protection from the harms of war as the decision
to use irregulars caused an increase in the rate of collateral damage. I will discuss this possibility in more detail in part 4.
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I now turn to the question of which normative principles in a liberal view ought to
guide the leaders of a particular warring side in trying to determine the most suitable distribution of liabilities and risks in a just war.
3. Just Conceptions of Discrimination
From the point of view of justice as it relates to the domestic arrangements of political communities facing war, the problem is the following: how should a people draw the line to determine which of its citizens to expose to the hazards of war (and in what ways) and which to
protect from them? I will argue that there are two dimensions to this problem: first, regarding
the justification for the particular way it decides to delineate the categories of combatant and
non-combatant, hence specifying the principle of discrimination; second, I argue that, where
it is possible, consultation with the people who will be affected by the policies proposed is
necessary for their legitimacy.
3.1 Justified Conceptions of in bello Justice
We assume, ex hypothesi, that the need to engage in any just war is a matter of grave urgency
and that doing so is the only (or at least the most proportionate) means of trying to prevent or
remedy injustice. Engagement in the war then necessarily imposes certain injustices on the
just side: it forces the just community to send citizens out to fight, sometimes coercively,
knowing that some of them will die as a result, the victims of morally unjust killings; and it
forces the community to subject itself to the LOAC which compels it to default on its obligation both to protect them and to pursue justice for their deaths and for some collateral harm to
civilians. The LOAC opens up permissions to unjust warriors and, by the same token, imposes obligations on victim communities that are morally unjust.
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My claim in part 2 was that a community forced to engage in just war had to fill out
the principles of the LOAC by delineating combatant and non-combatant groups within its
own population. I will refer to a particular way of trying to construct these categories in a fair
and effective way as a ‘conception of in bello justice’. I now want to argue that any given society might find that, faced with a particular conflict, it might consider selecting one of several different, defensible conceptions; and that these might include options that involve
higher levels of exposure to risk for non-combatants than are usual in regular, conventional
war. Indeed, it might be that options of this kind are the only ones that could justifiably be
implemented in some cases. Any of these options might be capable of realising in its own
way the abstract concept of discrimination and establishing a basis for operating within the
LOAC. A people with a reasonable claim to be engaged in a just war must decide which is
most suitable as a means of realising as best it can a set of social goals.
Leaving aside for now the question of fairness towards enemy soldiers (I turn to this
in part 4), each option, I argue, must be evaluated according to its ability to achieve a suitable
balance between three distinct considerations: 1.) fairness domestically; 2.) the value of survival (i.e. of the society and as many of its members as possible) which I will call the goal of
bare peace; and 3.) the value of justice as a goal of war, which we can call the goal of just
peace. I will outline each in turn.
The first consideration demands that those burdens of war that are deemed necessary
on reasonable grounds to win and to realise or defend the cause should be distributed within
the society as equitably as possible. The workings of a particular conception of in bello justice have, to use Allen Buchanan’s terms, ‘profound and enduring effects on individuals and
groups’ but these ‘effects are for the most part neither chosen nor consented to by those affected…’ Intuitively, therefore, if we assume that a given society will have to recruit many of
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its soldiers and take decisions affecting the risk of collateral harm to civilians on a nonvoluntary basis, it must seek to achieve ‘fairness of distributions of benefits and harms’ as far
as humanly possible (Buchanan 2004: 83). Fairness in this sense would primarily rule out selecting combatants based on arbitrary criteria that are not relevant to their ability to fight
(such as social privilege or education would usually be, as in Rawls 2001: 47; also 1999:
334).
Alternatively, if a society recruited soldiers on the basis of a truly voluntary alienation
of rights, e.g. in a professional army, this would to some extent obviate the question of fairness in the distribution of the burden of combatancy. But it would be necessary to ensure that
the use of financial inducements wasn’t taking unfair advantage of social inequalities. And
since variations in the visual and spatial separation of combatants form non-combatants will
affect the degree and kind of risk to which civilians are exposed, the question of distributing
the burdens of war fairly is also relevant to the non-combatant population too.
Fairness in this sense is not, however, the only consideration. A defensible conception
of in bello justice must fulfil requirements of equity but it also has to address important prudential considerations. As Rawls writes, ‘We cannot, in general, assess a conception of justice by its distributive role alone, however useful this role may be in identifying the concept
of justice. […O]ther things being equal, one conception of justice is preferable to another
when its broader consequences are more desirable’ (Rawls 1999: 6). This is emphatically true
of differing conceptions of in bello justice and my argument here is that a people considering
how best to distribute the risks and burdens of war has to balance two important further values.
On the one hand, what I call the ‘goal of bare peace’ (the second consideration) concerns the need to ensure that the society and as many of its members as possible survive the
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war and to achieve as much protection for them as possible. This reflects the aim of the discrimination principle as usually understood: it allows each society to protect from the conflict
as much of its population, structures and resources as it can and it does so partly by designating as many people ‘civilian’ as it can afford to. For any society to benefit from a successful
just war, it must of necessity survive the war (e.g. Walzer 2006: 4). Crucially, this means that
there must be a residuum of civilian life along with the political and administrative structures
it requires sufficient to make peace worth having. A military venture that threatened the continued possibility of civilian life after the war could hardly be justified in most circumstances
(though see Statman 2008: 665 and Meisels 2008: 108; on the levée en masse, see Walzer
2000: 185 and Nabulsi 1999: 52-5). For the purposes of applying a viable conception of the
jus in bello, this will mean that the alternative arrangements should be evaluated according to
the nature and degree of exposure to military hazards each is likely to entail for the side as a
whole.3 Wars generally entail at least some harm to civilian lives and the structures and
spaces within which they are lived. A people engaging in war can try to vary the degree of
harm both by its decisions about which civilians to enlist into the armed forces and how
many, and by those it takes about how to distance its combatants from civilians and civilian
zones during the fighting.
The third value determining the range of available conceptions of discrimination
arises from considerations of the cause justifying war. In just war theory, the presumption
that the side in question is engaged in a just war implies, ex hypothesi, that the goal it seeks to
achieve or the values it tries to protect are of sufficient value to justify the costs of a reasonable attempt to win the war (assuming some ‘reasonable’ prospect of success). Thus, the
3
Different peoples may conceptualise what I’m calling ‘bare peace’ here in different ways, for instance by prioritizing different zones of peacetime activity (familial, for instance, or cultural or religious) differently. I thank
one of the referees for this journal for pressing me on this point.
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value of the cause is itself a key variable in the formula by which political leadersshould decide how far to expose their citizens to danger. In his analysis of the contract by which he
thinks the basic principles of the jus in bello would be agreed between states, Benbaji writes
that ‘the objective of the contracting parties is minimizing the harm inflicted on morally innocent people within wars, without limiting the right states have to use force in protecting
their just claims’ (Benbaji 2009: 599). My argument is that the same considerations should
guide states in their uptake of the jus in bello as might guide them in its original construction.
The more important the cause, in this perspective, the greater the degree and type of exposure
of civilian life and lives a people might find it reasonable to contemplate.
Together, the second and third considerations present themselves to a warring side as
a gamble which it has to approach as prudently as possible, all things considered. It has to ask
itself what exactly and how much it is able or prepared to place on the table. What can it afford to lose? Are the forces at its disposal such that it can hope to avoid defeat even with only
a relatively small exposure of people and goods to the fighting? Or is a high level of exposure
for its citizens necessary to offer serious hope of victory, for instance through mass conscription? The balance of forces between different sides in the war and the tactical question of
how to meet hostile forces successfully are variables that will affect the decisions a side
needs to make as it considers how best to absorb the demands of moral, political and military
necessity.
The range of possible conceptions of in bello justice that a people and its leaders
might contemplate in the face of a particular conflict is thus limited by considerations of both
fairness and prudence regarding the rights and interests of their citizens. The rights of enemy
soldiers form a further constraint when it comes to the use of irregular combatants, which I
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will discuss in part four. But within these limits, it is possible that a given society might consider mobilizing its forces in one of a range of different ways.
The possibility that there might be more than one potentially valid approach at the
same time becomes clearer when we differentiate between three distinct ways in which a particular conception of in bello justice may be judged ‘legitimate.’
3.2 Legitimacy
A conception of in bello justice may be deemed ‘legitimate’ in one sense according to its
fairness and probable outcomes. It will have legitimacy in this sense if it is justified in terms
of the balance it achieves between the three social goals outlined in section 3.1: the distributive fairness domestically, the goal of bare peace, and the goal of just peace. Legitimacy in
this sense runs close to ‘justification’ as characterised by A. John Simmons but the usage is
compatible with that of various theorists, Buchanan in particular (Simmons, 1999; Buchanan
2004: 5 & 233). However, the first form of legitimacy does not alone complete the political
dimension of in bello justice.
The second sense in which a conception may be judged legitimate concerns the proper
basis for determining its content and for ensuring that its outputs are justified. Here I assume
that to achieve a meaningful understanding of what would count as an appropriate output,
you need consultation with those affected by the policies in question; you need to know
something about their interests and preferences. Justifying a particular conception relies on
difficult and uncertain judgements about various imponderables: first, about the likely consequences of different strategic alternatives for military recruitment and deployment both in
terms of the risks they pose to civilians and the likelihood of victory or defeat arising from
each; second, the kind of weight that should be given to the goal of protecting civilian life
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and lives from the war itself (bare peace); and third, the value that should be ascribed to the
goals to be secured through victory (just peace). The first set of issues is subject to contingencies that make any attempt at calculation highly uncertain. The second and third are likely
to have irreducibly subjective elements. All three, therefore, require consultation as widely as
possible with those who are likely to be affected by decisions that the political leadership
takes. This is true particularly if the aim of the war involves political values such as collective
self-determination: a war purely of decolonization or secession, for instance, (as distinct from
one responding to grievous human rights violation) gambles the lives of individuals against a
value that may well be regarded as less important than the right to life. On the other side of
the calculation, where the prospects of success are uncertain given a high level of exposure of
lives to danger, consultation is necessary to provide a measure of how much risk those affected will regard as an acceptable price for a given increase in the chance of success. As
Rawls puts it, in these circumstances ‘[t]here is no avoiding […] having to reach a complex
judgment weighing many imponderables, about which reasonable persons are bound to differ’ (Rawls 2007: 135). Therefore, dialogue with those on whose behalf the war is undertaken
is necessary for a proper calibration both of the goals of the war and its potential costs and a
second form of legitimacy is necessary to the success of the first. Whereas established democracies are likely to have a range of instruments and institutional channels available to
them through which to seek indications of popular concerns and preferences, non-state
groups are likely to have much more varied opportunities for consultation and will have to
rely more often on informal forms of communication.
The question of legitimacy arises in a third form where there is more than one possible conception of in bello justice and where each available conception has a contested claim
to justification (or legitimacy in the first sense). This is most apt to occur where there is
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widely felt uncertainty about the value that ought to be placed on different variables. For instance, the degree of gravity that a community ought to assign to the danger of defeat (i.e.,
the value that it assigns to the justifying cause of the war) might be calibrated in different
ways on subjective grounds, as some individuals may be happier to face the risks associated
with defeat than others. Similarly, people are likely to differ in their estimation of the chance
that a given policy will be effective (say, an increase in the numbers of civilians enlisted into
the armed forces) or to feel more or less strongly about the dangers faced by a community as
a result of using irregular rather than uniformed troops. And if there are effective channels
through which to measure, influence or negotiate with popular will, then it will be necessary
to seek indications of support for a particular policy in the wider population, especially if the
policy exposes civilian life to high levels of risk. Where there are indeterminacies of this sort,
i.e. where there isn’t simply one policy with clear advantages over all others in terms of justification, then there is a need to assess the degree to which those most affected would be likely
to consent to them. The ‘burdens of judgement’ ought to be shared, therefore, as widely as is
practicable in the circumstances (cf. Waldron 2010: 88).
There are certain arrangements that, on a liberal view, are unjust no matter how
widely they are accepted, e.g. if a community decided to conscript only the members of a certain ethnic minority or if it concentrated on the economically vulnerable in its recruitment
efforts. Even if wide support could reasonably be expected in a particular context and so they
were legitimate de facto (i.e. in sense 3), they could be challenged from the point of view of
justice (legitimacy in sense 1). So while fulfilment of the third legitimacy criterion (or at least
the absence of strong evidence of popular opposition) may be necessary (where feasible) to
validate a particular conception of justice, it is not sufficient. Equally, however, where channels are available for consultation and authorization, it will sometimes be the case that prima
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facie fulfilment of legitimacy in the first sense isn’t sufficient without fulfilment of the second and third senses as there will often be crucial areas that require inputs from the community where these are available.
4. Discrimination and the Rights of Irregular Combatants
I return now to the question of irregular warfare. The use of non-uniformed soldiers illustrates the possibility that a people engaged in just war might contemplate different ways of
narrowing the distance between its combatants and non-combatants as a means of enhancing
its chances of success in war. It also helps clarify the significance of fairness to enemy soldiers as a dimension of in bello justice.
As I indicate in 4.1, irregular war can increase the risk to civilians in a range of different ways. All but one of these methods involve a specific wrong that renders the practice
morally problematic in any case. But, as I argue in 4.2, insofar as they merely even out the
distribution of risks between combatants and non-combatants on the same side, the use of
non-uniformed soldiers simpliciter (i.e. without additional ‘perfidious’ means such as using
civilian shields or ambush by civilian disguise) might sometimes be justified and legitimate
in the terms analyzed above in part 3. In part 4.3, I turn to the question of fairness to enemy
regulars and the common claim that irregular warfare violates the rights of regulars by unfairly diminishing their ability both to pursue legitimate military advantages and to defend
their own lives.
4.1 Four Types of Irregular Tactic
There are several quite different ways in which irregular combatants can involve the civilian
population on whose behalf they fight. I will distinguish four.
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The first (tactic (1)) involves the use of civilian guise but not for the purposes of military deployment or ambush, rather to avoid elimination prior to combat. The guerrillas’ decision is simply not to take an additional step of wearing a uniform or insignia, remaining
dressed in their normal garb and carrying arms openly only during combat. The consequences
of this decision are greatest where irregulars operate in densely populated civilian areas.
The first tactic is significantly different from cases where soldiers who perhaps usually wear uniforms decide to adopt a civilian disguise in order to mislead enemy soldiers (cf.
Walzer 2000: 183). Consider as an instance of this second type of tactic (2), the French partisans discussed in Walzer’s Just and Unjust Wars (p. 176) who dressed as peasants in order to
ambush German soldiers or of those FLN guerrillas depicted in Gill Pontecorvo’s film, The
Battle of Algiers (1966) who used civilian guise to get close to targets before shooting them
when their guard was down. The difference compared with (1) is that civilian identity in (2)
is actively and deliberately deployed as a means of lowering the enemy regular’s guard, diminishing their ability to defend themselves while they adhere to the discrimination principle.
The distinction here is made explicitly in Protocol I which permits (1) but expressly prohibits
(2): non-uniformed combatancy is permitted as long as the irregulars carry their arms openly
‘(a) during each military engagement, and (b) During such time as [they are] visible to the
adversary while […] engaged in a military deployment preceding the launching of an attack
in which [they are] to participate’ (Art. 44 (3)). But the Protocol prohibits the use of civilian
disguise where it is used perfidiously: Article 37 declares that, ‘[i]t is prohibited to kill, injure
or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to
believe that he is entitled to, or is obliged to accord, protection under the rules of international
law applicable in armed conflict, with intent to betray that confidence, shall constitute per-
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fidy. The following [exemplifies] perfidy: […] (c) The feigning of civilian, non-combatant
status […]’ (cf. Steinhoff 2010: 84).4
Case (2) is different again from case (3) which was seen, for instance, in the first Iraq
War when Saddam’s soldiers placed people clearly identifiable as civilians in a visible position close to their tanks to reduce the risk to Iraqi combatants. As I intend it, tactic (3) refers
specifically to the coercive use of civilians as human shields. It is conceivable that they might
sometimes volunteer, but I leave such cases aside since I assume they raise questions about
discrimination rather than proportionality on the basis that the civilians arguably take on the
role of combatants by thus agreeing to participate directly in the war (Gross 2010: 154-62 and
Protocol 1, art. 51 (3) in Fabre 2009: 40).
Finally, a fourth possibility (4) is that a group might place non-combatants in a nonvisible position close to a visible military target to increase the chance of collateral damage
amongst civilians, contributing to their sense of grievance against the group’s enemies. This
is a form of terrorism – in the standard sense of the term – since it involves intentionally
causing the death of civilians as a military or political instrument.
I want to propose a defence of tactic (1) in particular. In some more desperate circumstances, tactic (2) might be justifiable in terms of the first three normative considerations discussed above in part 3.5 But like (3) and (4), it raises problems of fairness towards enemy
regulars under the framework of symmetrical combatancy rights codified in the LOAC. In
fact, by contrast with tactic (1), tactics (2), (3) and (4) all involve methods that are widely
4
The ‘visibility’ criterion here could be complicated by the surveillance capabilities of modern armies since it
may be possible for long-range imaging to detect the mobilization of irregulars a long time before they would
become visible to the individual soldiers whom they intend to attack. I assume that visibility to the latter would
be the most appropriate criterion in present conditions to determine when the irregulars should declare their
identity for reasons that will become clearer in part 4.3 below. Thanks to one of the referees for this journal for
drawing me on this point.
5
I leave this possibility aside for treatment elsewhere.
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seen as wrong independently of the issues I have concentrated on: tactics (2) and (3) both involve a breach of trust by exploitingthe enemy’s willingness to comply in good faith with the
principle of non-combatant immunity as a means of killing him. Tactic (4) aims directly at
the death of innocent civilians for political advantage. But tactic (1) requires no act that is
wrong in either of these ways. If it wrongs either civilians or enemy combatants, then it
would have to be on the grounds that it always has the effect of imposing unfair burdens on
non-combatants, which I challenge in 4.2, or unfair disadvantages on enemy combatants,
which I contest in 4.3.
4.2 Irregular War and the Rights of Non-Combatants
As many critics of the First Geneva Protocol argue, dispensing with uniforms in wars where
fighting takes place in close proximity to one’s own civilians is likely to increase the levels of
collateral harm arising from enemy attacks. Some argue that this wrongs civilians on the
same side as the irregulars (e.g. Meisels, 2008; Chiu, 2010).
On the account of in bello justice I offer, irregular tactic (1) can be defended from this
objection. I have argued that whether a particular arrangement of the combatant-noncombatant distinction within a society is justified is not a question of whether the people
whom it places at risk are morally liable to harm, since none are (unless and until they render
themselves liable to attack by wrongful acts of their own such as war crimes) but whether the
distribution of risks it entails is justified in terms of the balance it achieves between fairness
and the goals of just peace and fair peace. On the basis of this account of in bello justice, irregular warfare could be justified where wartimeleaders determined on the basis of due consultation with their people that the ends pursued through war were of sufficient value, that the
chances of victory using conventional methods were sufficiently slight, and that the likely
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damage to civilian life and lives resulting from the use of non-uniformed troops was likely to
be both fair and acceptable to the population generally as the price of increasing the chances
of victory (cf. McMahan 2010: 359-60).
Based on the third legitimacy criterion, a non-state movement should not initiate irregular war in the face of widely articulated popular opposition. The greater the support
among the wider population for this policy the greater the legitimacy of using a strategy by
which people agree (to whatever extent possible) to spread the risk more widely across the
population as a whole than is usual in regular war. The ability of a non-state group to conduct
an irregular war justly is therefore likely to be strongly affected by the legitimacy of the organization itself measured both in terms of the support it enjoys amongst the people it claims
to represent as well as the degree to which it succeeds in reflecting their interests and preferences, balancing their longer term aspirations with their immediate safety in its policies.
Setting aside the question of rights in the regular army against which they are fighting, the policy of narrowing the visual and spatial distance separating combatants from noncombatants by deploying non-uniformed soldiers in urban settings could be justified on the
basis that the distribution of risks and potential benefits it offers is fair overall. Insofar as the
additional harms civilians suffer as a result of their increased vulnerability are the result of
unjust war by their enemies, they are grave injustices. But where the three legitimacy conditions (in 3.2) are fulfilled, they do not constitute an unfair infringement of the civilians’ rights
by the irregulars themselves or by their political leaders.
4.3 Irregular War and the Rights of Regulars
To complete the analysis, I turn now to the argument that the use of irregulars as permitted
under the Additional Protocol 1unfairly biases the jus in bello in favour of irregular forces
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and against their regular opponents. My response to this claim is that while the tactics distinguished as (2), (3) and (4) in section 4.1 would typically aim at an unfair (dis)advantage, tactic (1) would not.
In practical terms, the decision not to wear uniforms in tactic (1) might reduce the
ability of regulars to do three things:
(i) to achieve legitimate military aims through combat.
(ii) to defend themselves individually from harm.
(iii) to assassinate or arrest enemy combatants who are not presently engaged in combat and prior to deployment.
Criticism of Protocol 1, Article 44(3) tends to focus on the first and second of these abilities
(Meisels 2008: 104-8; cf. Fletcher 2002: 108; also sources quoted in Solis 2010: 132; Roberts 1985-6: 109, 129; Dinstein 2004: 46; Chiu 2010: 49, 55). Irregular tactics reduce the ability of regular forces while enhancing that of the irregular army to achieve legitimate war
aims. Moreover, it becomes much harder for regular soldiers to defend themselves individually when trying to fight discriminately against enemy combatants whose status is not clearly
signalled. The crime of irregular warfare, on this view, therefore includes an unfair distribution of rights between the irregulars on one side and, on the other, both the opposing regular
army as a whole and its individual members.
To respond to these claims, it is necessary to specify precisely why it is that irregular
warfare might be justified in the context of wars against occupying forces specifically, when
it is not permissible in a war between states even of very different strengths. I will argue that
this is not primarily due to asymmetries of power or resources as is often assumed (on which,
see Chiu 2010: 47 & 56-60) but arises from the conditions of occupation itself.
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Wars fought against occupying armies and domestic oppressors have two important
features absent from wars between states. The first is that the enemy’s presence within and
across the whole extent of the country of the people seeking liberation makes it impossible to
define a front line dividing the two opposing sides. Front lines are very important for the
normal conduct of war: they provide a means by which one’s civilians can be kept back from
the fighting and they define the point at which combatants expose themselves directly to the
hazards of war. Behind the line, combatants can withdraw, regroup, await orders for mobilization or even retire and return to civilian life. Yitzhak Benbaji makes a similar point in arguing that when ‘warfare is removed from the cities to the battlefield […] the soldiers’ family
members are safer, released soldiers would have safer places to return to, and wounded soldiers would have protected healing places’ (Benbaji 2009: 494; cf. Roberts 2008: 950). In a
war with no front line, all such alternatives become at best problematic and at worst impossible because all combatants are continually exposed to the risk of attack or capture, at least as
long as they are easily identified visually.
In effect, therefore, irregulars might restrict themselves to tactic (1) simply to avail
themselves of the right to withdraw temporarily from fighting for purposes not inconsistent
with the laws of war, a right usually available to regulars but that insurgents cannot enjoy if
they identify themselves with uniforms in a war against occupiers. Forgoing the use of insignia or uniforms and concealing weapons when not in use or deployment will likely be necessary if soldiers are to avoid arrest or assassination while performing military-logistical and
administrative functions that are normally carried out away from the front. This is especially
the case in the era of drones and other remotely controlled weapons.
A second important consequence of occupation is that, because enemy forces are already in the country, occupying its key strategic positions, the decisions as to where they
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should be engaged in fighting are taken out of the hands of the irregular forces, leaving them
with little room for manoeuvre. Based on these decisions, the theatre of war is likely to overlap unavoidably with the spaces occupied by civilian life, whatever the insurgents might wish
to do, and all in all, as Michael Gross observes, ‘the weaker side, fighting within civilians
population centres, does not have a safer place to retreat’ (Gross 2010: 153-4).
The aim of the laws of war in their current form is to regulate conflicts fairly according to a principle of ‘legal equality’ (including those with non-state groups) and this requires
the setting of rules that are equitable between opposing sides. This is the main reason why
tactics (2) and (3) are illegitimate under the normative framework I have outlined: both seek
to make the principle of discrimination disadvantageous to one side while retaining its benefits on the other (all the while based on the assumption that the obligation to observe discrimination still applies to both). But when it is directed solely at avoiding elimination by assassination or arrest, the use of tactic (1) can be seen as an attempt to restore fairness in the
distribution of rights and duties between soldiers on opposing sides rather than to undermine
it. The option of organizing or retreating behind a front is generally available to regular soldiers. In wars with non-state parties, this is true particularly if the regulars fight for foreign
occupiers or colonial states but even in cases of domestic oppression and civil conflict, regulars are more likely to have fortified spaces into which they can withdraw. Permitting nonstate soldiers engaged in liberation wars to forgo the use of uniforms affords them to some
degree the same ability. The protection that they thereby enjoy from assassination or arrest by
regular forces is then reciprocated in the duty of irregulars to abstain from the ‘perfidious’
use of civilian disguise in ambush. This duty prevents irregulars from exploiting the discrimination rule as a means of diminishing the ability of regulars to defend themselves individually. So as long as the only consequence deliberately sought by legitimate irregulars using
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tactic (1) is the third one ((iii) to avoid elimination prior to combat) then, I argue, the use of
irregular warfare is consistent with fairness to enemy regulars as well as to civilians on the
irregular side.
5. Conclusion
In light of my analysis of in bello justice, irregular warfare against occupying forces is fair
where the following conditions are fulfilled: first, where it is justified in terms of the interests
of the people on whose behalf it is waged, all things considered. Justification requires the
careful balancing of different considerations: the goal of protecting civilians and civilian life
so they can survive the war; the goals making up the cause of the war; and the fairness by
which burdens are allocated in seeking the best possible balance between them. A second
condition is that the particular conception of in bello justice that is chosen by wartime leaders
ought to be legitimate, that is, it should be based on consultation with the interests and preferences of the people on whose behalf it will be applied and it ought to be based on their consent where this can be obtained. The use of irregulars will most likely increase the level of
collateral damage necessary for the same levels of success on the parts of enemy regulars but
I argue that where the conditions of justification and legitimacy are fulfilled, these additional
harms to civilians do not generally constitute an unfair infringement of their rights by the irregulars.
Moreover, so long as irregular war is directed primarily towards the protection of insurgent soldiers from elimination prior to combat, then its effect on the efficacy of legitimate
tactics by enemy regulars is incidental, that is, a foreseeable but unintended consequence. It
does not constitute an unfair distribution of rights between soldiers on opposing sides even if
it happens to diminish to some degree the ability of regulars to pursue legitimate military ad-
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vantage. Instead, it restores to wars against occupiers a degree of fairness as all combatants
are protected in law from perfidious attacks, whether through ambush by means of civilian
disguise, or assassination by regular forces.
*
I am grateful to the British Academy for a British Academy / Leverhulme Senior Research Fellowship (201011) which supported the work for this paper and to Yitzhak Benbaji, Luis Cabrera, Jeff McMahan, and Cian
O’Driscoll for written comments on earlier drafts.
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