Recently entering its first year of hostilities, the invasion of Ukraine has seen increasing levels of violence against civilians. The Bucha massacre sparked shock globally for the actions perpetrated by the Russian army. At the same time, what occurred in Bucha represents only one of the many instances where the Russian war machine has been accused of deliberately violating human rights and humanitarian law. Last March, air strikes against schools and hospitals in Mariupol killed dozens of civilians. As with many other violations, Mariupol has contributed to drawing renewed attention to the legal concept of ‘military objective’ and to what extent this categorisation applies to targets on the ground. Article 52(2) of the Additional Protocol I to the Geneva Conventions states that ‘military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction […] offers a definite military advantage’. The vagueness of this definition has historically left room for expansive interpretations seeking to confer an enlarged meaning to the concept of ‘military objective’. A strong push towards their validation came from moral philosophy. Recently, highly-respected voices in the academic field have advocated for including civilians as lawful targets. The main reasoning is that, because of their relevant contributions to the war effort, non-combatants become liable for defensive killing at the hands of enemy soldiers. This conception is largely rooted in the argument that civilians might have an even more important role than actual soldiers in furthering an unjust attack. While it is correct that non-combatants hold crucial relevance during a conflict, the risks posed by including them as lawful targets are overwhelming. I argue that this moral understanding of civilian liability risks justifying some expansive interpretations of the ‘military objective’ notion. According to this article, the result is a dangerous weakening of the legal and moral underpinnings of international humanitarian and human rights law governing armed conflicts, and the legitimisation of the indiscriminate and arbitrary killing of civilians.
The moral underpinnings of civilian liability
Over the years, the rationale justifying the liability of non-combatants has been popularised by various moral philosophers, notably Helen Frowe. The precondition underpinning her argument is that civilians can be harmed when they contribute to an ‘unjust war’. A war is ‘just’ when it is morally or legally justifiable, in other words when it respects certain principles regulating the resort to armed force – summarised with the jus ad bellum notion – and how war itself is conducted – known as jus in bello. For instance, it is ‘just’ if it is the right authority to decide to go to war, when it is waged as a last resort, or when its cause is just. Conversely, if these conditions are not respected, the war is considered ‘unjust’ and, according to Frowe, civilian liability emerges. Therefore, Frowe’s work rejects the idea that intentionally attacking non-combatants is ‘disproportionate to the threat they pose’, arguing instead that the proportionality principle does not concern the extent to which a person contributes to an unjust threat, but ‘the gravity of the threatened harm’. Accordingly, civilians voting for a war-mongering regime are liable for defensive killing just as the head of state launching an unjust lethal threat. Furthermore, Frowe also criticises the significance awarded in international law to the principle of necessity, which grants lawfulness only to those military actions aimed at accomplishing a ‘legitimate military purpose’. On the contrary, she claims that it is not relevant whether killing the unjust non-combatant serves a legitimate purpose, because civilians’ liability exists independently from its degree of utility to the war effort. To illustrate her opinion, she resorts to the ‘murderer’ example, where a ‘victim’ chased by a ‘murderer’ on a plane is justified to kill him even if she has a parachute at her disposal to flee the plane and save herself. This interpretation of the necessity principle seems fundamentally flawed. Indeed, in a war, very few non-combatants play the same crucial role as the ‘murderer’, who directly poses the threat to the life of the ‘victim’. By rejecting the distinction between different degrees of contribution, Frowe ultimately legitimises the killing of non-combatants who are only remotely linked to the threat, and whose elimination would be unhelpful to avert it.
The implications of an expansive rationale
The modus operandi formulated by Frowe appears deeply at odds with the proportionality and necessity principles which states must abide by under international law throughout the exercise of self-defence. In fact, this interpretation of necessity resembles the one prevalent in the past, where the principle was intended not as a restraint but as a justification to undertake all the measures functional to win the war. From this standpoint, the worrying implications of Frowe’s rationale are evident if one looks at the Russian invasion of Ukraine. Since the beginning of the invasion, the Kremlin has publicly argued to be fighting in self-defence against the Ukrainian army. Following Frowe’s reasoning, Russian soldiers – convinced of fighting a ‘just war’ against an evil opponent – would then be justified to deliberately target those Ukrainian civilians who are supporting the war effort. This example provides a somewhat daunting scenario, where thousands of Ukrainian civilians could be harmed independently of the scale of their contribution to the war. The danger posed by this reasoning is reinforced by the reality of ‘just wars’, which is pointed out by David Rodin: among the wars fought by the states, less than a half of them turn out to be actually ‘just’. This observation is supported by widespread evidence that those who wage war are usually misled by cognitive biases convincing them of the justness of their cause. Beyond these considerations, it must be acknowledged that many of the civilians involved in supporting the war effort do so under the threat of coercion. By ignoring these aspects, the moral arguments formulated by Frowe display a certain distance from reality, which is precisely what makes them so dangerous. How many politicians, international lawyers, dictators, or soldiers encountering this philosophical work would have their beliefs strengthened that, since they are fighting in a just war, they are therefore justified to kill civilians?
Challenging the ‘war-sustaining’ doctrine
The issues raised by Frowe’s expansive interpretation of military objectives appear to be extremely concrete vis-à-vis a variety of current issues in the way war is conducted in the international arena. For instance, the concept of ‘war-sustaining’ objects represents a crucial attempt to extend the scope of what a military objective is under international humanitarian law. According to this approach, objects contributing to the war effort – such as oil refineries, drug-production facilities, or even the agricultural sector as in the current war in Ukraine – are considered legitimate military objectives and can be targeted by an attack. Nevertheless, ‘war-sustaining’ objects require further analysis of the existence of a nexus between their activity and the war effort, as well as the ‘degree of remoteness’ concerning this relationship. An additional complication concerns the fact that the civilians involved in these activities are not necessarily members of a terrorist organisation. Since they are not part of the terrorist group, engineers, workers, smugglers and other non-combatants should not be considered liable to be killed because of their mere connection to these activities. From a moral viewpoint, Frowe’s reasoning completely obliterates this set of reflections. By extending the target to everyone who contributes to the unjust threat independently from the nature of their contribution, everyone working inside the factory, refinery, or poppy field will be liable to just killing. It does not take much to understand the destructive implications of this mindset, which would easily lead to the targeting of basically any war-sustaining object regardless of its degree of remoteness or the civilian casualties involved. As highlighted by Kenneth Watkin, ‘such an approach might ultimately lead to indiscriminate attacks, and the type of wide-ranging aerial assaults with extensive civilian casualties, which were so controversial during World War II’. In light of these issues, despite the attempts by the United States to validate this ‘war-sustaining’ approach, it has been widely criticised within the international debate. Nonetheless, Frowe’s interpretation of civilian liability offers a robust moral ground to the targeting of ‘war-sustaining’ objects, ultimately legitimising the doctrine and the aforementioned attacks undertaken by the US.
Why we need to safeguard civilian protection
During an episode of ‘JIB/JAB – The Laws of War Podcast’, Sarah Holewinski, Washington Director at Human Rights Watch, highlights that many of the tragic consequences of US drone strikes are only visible to the humanitarian officers working on the ground, and not to the people launching the attacks and taking decisions in Washington. She powerfully points out the complexities of war and the plethora of variables, obstacles and repercussions which states must take into account when they engage in a military attack, notwithstanding its justness. From this standpoint, moral arguments that non-combatants should be killed appear to deliberately ignore all these complexities, kneeling in front of the justifying power of the ‘just war’. Even if a war turned out to be just, as is the one fought by Ukraine, it is hard to believe that it would legitimise soldiers to slaughter the civilians on the other side. What would be the legal precedent set for all the other conflicts where non-combatants perform the same contributing role, but neither side is fighting in justness? Moreover, if the prohibition of killing non-combatants is abolished, what would it be of all the other safeguards ensured by human rights and humanitarian legal regimes? International law was built to safeguard countries and populations from the violence caused by war, with the awareness that war-mongering regimes will always claim the exceptional justness of their war to commit violence. An enlargement of the ‘military objective’ regime would ultimately result in more brutal and destructive means in the hands of biased elites who believe in being on the just side of history.
Marco Mussa is a Master’s degree student at the Geneva Graduate Institute of International and Development Studies.