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Lawful Murder: Unnecessary Killing in the Law of War

Published online by Cambridge University Press:  20 July 2015

Samuel G. Walker
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The international law of war limits the use of violence, largely through protections afforded to civilians. However, the law provides no principled limit on the taking of combatant life — soldiers may be killed even if to do so would contribute absolutely no military advantage. This permissive approach to unnecessary killing has deep historical roots in the philosophy of the law of war. Three justifications for unnecessary killing have been advanced: a robust notion of sovereignty that views the soldier as a disposable molecule of a greater being; the idea that soldiers are ‘guilty’ and deserve what befalls them in war; and a pragmatic approach holding that limits on gratuitous violence are both impossible to implement in practice as well as harmful. None of these arguments are persuasive in light of the contemporary consensus that there is a human right to life that ought to be respected at all times, even in war. A rule of “combatant proportionality” should therefore be formally incorporated into the law of war.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 25 , Issue 2 , July 2012 , pp. 417 - 446
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Copyright © Canadian Journal of Law and Jurisprudence 2012

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References

I would like to thank Dr Guglielmo Verdirame for his invaluable comments and guidance. My gratitude is also owed to Tobias Schaffner and an anonymous CJLJ reviewer for comments on earlier drafts of this article.

1. International humanitarian law (also called the ‘law of armed conflict’ or, more colloquially, the ‘law of war’) is the body of international treaties and customary law which govern the conduct of hostilities on the battlefield, and related issues. Most important for our purposes is the Protocol Additional to the Geneva Conventions of the 12 August 1949, and relating to the Protection of Victims of International Armed Conficts (Protocol 1), 8 June 1977, 1125 UNTS 3, (entered into force 7 December 1979) [API], which provides rules for what or who may be targeted and with how much force.

2. “Proportionality” is a term familiar to military lawyers, as I will shortly explain. I will not draw a distinction between necessity and proportionality—in IHL, a disproportionate attack is considered unnecessary and vice versa.

3. For the purposes of this essay, I include civilians directly participating in hostilities in the term “combatant”, because although they are subject to different rules in some aspects of IHL (such as upon capture), they are subject to the same general targeting principles.

4. It is a curious fact that nowhere in the treaties of IHL is the right to kill combatants expressly mentioned. It can only be inferred indirectly from API. Art 48 provides the “Basic rule” that military operations shall only be directed against “military objectives”. However, API conspicuously avoids defining combatants as “military objectives”, and in Art 52(2) only gives a definition of military “objects”. Of course, nevertheless, the right to kill combatants is considered long-standing customary law.

5. The jus in bello (‘law in war’) refers to IHL, i.e., the law applicable to conduct on the battlefield. The jus ad bellum (‘law of war’) is only applicable to states. It dictates the justifable causes of war and is largely found in the Charter of the United Nations (26 June 1945, Can TS 1945 No 7). It is now typically called the law on the “use of force”. See generally Gray, Christine, International Law and the Use of Force, 3d ed (New York: Oxford University Press, 2008).Google Scholar

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64. Rousseau did hint at having formulated such a theory, but apparently the essay explaining it was, tragically, destroyed. See Tuck, supra note 36 at 205-07.

65. Vattel in fact based his writings largely on Wolff, and is therefore sometimes said to have been unfairly credited as a great innovator. See Ruddy, FS, “The Acceptance of Vattel” in Alexandrowicz, CH, ed, Grotian Society Papers 1972 (The Hague, Geneva: Martinus Nijhoff, 1972) 177.Google Scholar

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73. Ibid.

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109. In the interests of concision, I have left aside a less important philosophical issue which is the now outdated notion of “assassinations.” Assassinations are ‘treacherous killings’, which are variously described in the tomes of Alberico Gentili, Grotius, Vattel and others as ‘dishonourable’ tactics which betray notions of ‘valour’ and ‘chivalry’ by using surprise or deceit to attack defenceless enemies. However, the norm against assassinations is considered completely inoperative today, given that routine feature of modern warfare: the use of ranged weapons such as airstrikes, missiles and sniper rifles to attack (often) totally defenceless combatants. However laudable sentiments of ‘valour’ may be, they do not serve as a stable foundation for preventing unnecessary death. The rules on killing must be grounded in a respect for the humanity of the victim, not the killer’s honour. The latter can admit of too many exceptions and is vulnerable to vague and ever-changing norms in warrior culture, just as the advent of airstrikes and missiles has made the norm on assassinations inoperative today.

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111. Azar Gat demonstrates that in the anarchy of pre-state societies, roughly 15 percent of adults could be expected to die at the hands of other humans. By contrast, even during WW2, only about 3 percent of both the French and German populations perished (Gat, supra note 32 at 131-32).

112. Albert de Lapradelle, for instance, admonishes Grotius for remaining “in a state of barbarism” as compared to the enlightened Vattel (“Introduction” in Vattel, supra note 66 at xlviii).

113. Supra note 76 at 641-57.

114. Ibid at 716.

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118. Another reason may be that Grotius did not want to alienate the sovereigns of Europe who were his intended audience by labeling them all as war criminals. Europe had just emerged from the Thirty Years’ War, in which Grotius saw “a lack of restraint in relation to war, such as even barbarous races should be ashamed of” (ibid at 20). Grotius conceded that they had not departed from customary practice, but advised a more just approach going forward. Grotius’ eagerness to appease authority is demonstrated somewhat uncomfortably in the flowery and absurd dedication to King Louis XIII. (Ibid at iii) On the historical context in which Grotius was writing, see also Ruddy, supra note 65 at 181.

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146. API supra note 1 at Art 87.

147. Ibid at Art 85(3)(e).

148. Ibid at Art 85(3) [emphasis added].

149. United States of America, Instructions for the Government of Armies of the United States in the Field, prepared by Lieber, Francis, (Washington, DC: Government Printing Office, 1989)Google Scholar at Art 29 [The Lieber Code].

150. Ibid at Art 15.

151. Best, supra note 51 at 10.

152. Ibid at 165.