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

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