Defining the Non-Combatant: Howdo we Determine Who is Worthy ofProtection in Violent Conflict?

EMILY KALAH GADEFreelance writer

ABSTRACT International law codifies the principle of non-combatant immunity, which traces itsorigins to a religiously supported moral imperative. The principle of non-combatant immunity hasevolved to become a crucial underpinning of just war theory. Western societal norms havecomplicated our understanding and application of the principle of non-combatant immunity bydepicting combatancy in terms of innocence and guilt: those viewed as innocent deserve legalprotection. Child soldiers and female suicide bombers exemplify today’s complex and expandingparameters of combat. Consequently, in practice, authorities in conflict zones cannot rely onexisting legal distinctions; instead, they are forced to make subjective judgements when decidingwhom to protect. This article calls for a critical evaluation of: existing legal definitions concerningnon-combatants; how conceptions of combatancy are applied in protective policy andhumanitarian evacuation; and the resulting consequences and policy implications.

KEY WORDS: non-combatant immunity, civilians, international law, new war, modernity,humanitarian intervention, responsibility to protect

Introduction

Modernity, in the form of new types and tactics of warfare, has blurred thedistinction between combatants and non-combatants. Protecting civilians inwarfare is an ethical issue that has long occupied theorists, from Augustine ofHippo to Kofi Annan. Historically, ethicists have relied on the principle ofnon-combatant immunity (PNCI) as part of the justification for warfare,specifically in the context of just war theory. The PNCI maintains that thoseinvolved in killing should not be protected from the horror of war becausethey are complicit in its devastation, whereas the innocent should be leftunharmed. The PNCI has been codified in international law, notably in TheHague Draft Rules of Aerial Warfare (1923), the 1977 Additional Protocolsto the Geneva Convention, and Article 8 of the Rome Statute of theInternational Criminal Court. These reflect the international community’s

Correspondence address: 81 Hartington Rd, London UK W43TU. E-mail: emily.gade@gmail.com

1502-7570 Print/1502-7589 Online/10/030219�24 # 2010 Taylor & Francis

http://www.informaworld.com

DOI: 10.1080/15027570.2010.510863

Journal of Military Ethics,Vol. 9, No. 3, 219�242, 2010

efforts to create a clear delineation between those who are ‘worthy’ ofprotection and assistance, and those who are not.

What definition of non-combatant has meaning today? Providing protec-tion, from aid to evacuation, to individuals in combat zones is dependent onthe ability to identify them as non-combatants. As codified in internationallaw, the denotation of non-combatant is simply someone who is not,currently, actively fighting. However, social constructions in popular cultureand in political discourse, exacerbated by media sound-bites, have inaccu-rately equated the term ‘non-combatant’ with the term ‘civilian’. Althoughthe denotation of civilian is non-military personnel, the popular connotationof a civilian is someone who is innocent and vulnerable and needsprotection. There are, in fact, many different classes of civilians, forinstance, those who are not ‘innocent’, that is, those engaged in theproduction of the machines of war, or spies; and then there are civilianswho are also combatants, including children acting as soldiers without will,civilian militias or insurgent groups, or the Palestinian youth throwing rocksduring the Intifadas. Nevertheless, protecting non-combatants has becomeso entrenched, and the belief in their innocence so fundamental, that wenow engage in humanitarian intervention. Fundamentally, we engage inkilling in order to protect non-combatants, rather than simply trying toleave them out of conflict (Ronzitti 1985). Clearly, the meaning of theterm ‘non-combatant’ has drifted from its original definition rooted ininternational law.

In what Mary Kaldor (1998) describes as ‘new’ wars, and what StathisKalyvas (2004) characterizes simply as civil wars, there is often no cleardistinction between combatants and non-combatants. The recent reminderfrom the United Nations (UN) Assistance Mission in Afghanistan that‘[C]ombatants are obligated to adequately distinguish themselves fromcivilians to enable non-combatants to be recognisable as such and beshielded from attack’ (UNAMA 2009) is unlikely to be heeded by theTaliban. Such grim realities of war highlight the inadequacy of applying abinary legal framework to distinguish combatants from non-combatants. Welive in an era when the Tamil Tigers use young women as suicide bombers,when the term ‘sorbles’ (soldier/rebels) is the most accurate description ofthose fighting in Sierra Leone, and when profiling of combatants leads tothe long-term detention of ‘innocent’ people in Guantanamo Bay. The now-indefinite term ‘non-combatant’ is further complicated by the changingnorms of international sovereignty. To the extent that the internationalcommunity now recognizes a responsibility to protect, civilians around theglobe are non-combatants who deserve the protection of their universalrights.

Even though humanitarian agencies and workers cannot rely on the legaldistinction between combatant and non-combatant, they still have to choosewhom to protect and evacuate. Lacking a workable legal framework, theymake subjective judgements based on conceptions and norms of who isinnocent and who is vulnerable. R. Charlie Carpenter has focused on thetendency to apply the terms ‘innocent’ and ‘vulnerable’ to women, and thus,

220 E.K. Gade

the disproportionate application of civilian or non-combatant status towomen. She states: ‘using sex and age as proxies for civilian/combatantinvolves doing precisely the opposite of what the doctrine of ‘‘distinction’’requires: that legitimate targets be identified by an objective assessment ofwho actually poses an immediate and dire military threat to a given situation’(Carpenter 2006: 3).

This article will examine the use of such norms in the Goma refugee campsand in the sex-selective protection policy employed during the Kosovoconflict. In Goma, aid workers had to make complex moral judgments, oftenbased on perception rather than fact, such as deciding whether to ‘continuefeeding women and children knowing they were also feeding killers’(Wilkinson 1997: 110). Kosovo and Goma exemplify the effects that canresult from using subjective, normative conceptions of innocence andvulnerability as a basis for applying protective policy and humanitarianevacuation.

Implementing protective policy by employing such judgements has beenwidely practised in conflict zones without being critiqued and examined. Anacknowledgement of the subjectivity inherent in deciding who is a non-combatant could seriously impact policy decisions. This article calls forfurther research on the subjective framework currently being applied and areassessment of the combatant/non-combatant distinction, as a contributionto a better enforcement of the PNCI.

Evolution of the Principle of Non-Combatant Immunity

The PNCI has been a recurrent touchstone for humanity as it has warredthroughout the centuries. Each time a new tactic or technology sweeps non-combatants into war, post-war repentance results in another iteration of thePNCI. Before examining the current legal framework incorporating thePNCI, it is important to understand its ideological background, from itsfounding in the religious writings of St. Augustine, to the sobering effect ofthe World Wars, to the modern, hopeful (even idealistic) trend towardsuniversal rights and, perhaps, even global citizenship.

Just War Theory and Non-Combatant Immunity

Referring back to Aristotle’s distinction between means and ends, Clausewitzstated that war is the ‘continuation of policy by other means’ (Clausewitz1982: 119). This characterization yields a key point: while violence is inherentin humankind and found in nature, war is not. War is a political term thatgives a certain status and connotation to violence, and is an attempt by stateactors to legitimize and formalize the violence in which they engage.

Protecting civilians during wartime is a critical aspect of how nationsjustify war. Just war thinkers such as Michael Walzer, distinguish war frommurder by emphasizing the primacy of restrictions on warfare practices andassistance for non-combatant victims of warfare. In just war theory, thejustification for a given war is achieved by examining jus ad bellum and jus in

Defining the Non-Combatant 221

bello (Walzer refers to these terms as ‘war’s ends’ vs. ‘war’s means’).Historically, in conventional state vs. state warfare, jus ad bellum referred towhether a specific war is justifiable and morally acceptable, i.e. whether it is inpursuit of a just cause, waged by a legitimate authority, with right intention.The PNCI is an important part of this discussion: often protecting ‘theinnocent’ from harm, or preventing grave injustices, make up the just causerequired to legitimate a just war.1 Jus in bello addresses the manner in whichthe war is conducted. As a part of this, it examines how individualcombatants conduct themselves. A critical part of the discussion of non-combatancy is whether combatants are acting in accordance with interna-tional law, and by extension, providing civilian protection. Because jus adbellum and jus in bello are logically distinct, it is entirely ‘possible for a justwar to be fought unjustly and for an unjust war to be fought in strictaccordance with the rules’ (Walzer 1977: 21).

Today, just war theory functions as an incarnation of civilian/internationalpressure to enact justice. Entwined with this concept of justice is the idea thatsome individuals are innocent, and as such they should be protected from thebrutality of war. The idea of ‘immunity in war’ has strong religious roots,similar to the concept of humanitarian aid itself. It ‘enshrines the moralconvictions and understanding of past generations. Its place in the theory ofjust war is central, since without it that theory loses much of its coherence’(Coates 1997: 263). St. Augustine, in a letter to Boniface, stated that ‘[p]eaceis not sought in order to provoke war, but war is waged in order to attainpeace’ (Letter 189, cited in Fortin & Kries 1994: 20). While the PNCI is notdelineated in St. Augustine’s writings, Augustine emphasized that the mannerin which a war is fought determines whether peace can be achieved. With thisideology, St. Augustine laid the foundation for non-combatant immunity as adivinely supported (Christian) moral imperative, and a courageous action tobe undertaken by the civilized.

The PNCI continued to evolve in Western political thought long before itwas codified in international law. St. Thomas Aquinas in qu. 40 of the SummaTheologiae, II-II, provides three conditions for a just war: proper authority,just cause, and right intention (Aquinas 1916), and all three are still usedtoday in the discussion of jus ad bellum. Aquinas (cited in Johnson 2000: 428)states that there can be no just use of force against the innocent, a moraljudgement which takes a critical step towards codified non-combatantprotection. Emer de Vattel, writing in the mid-eighteenth century, commentedthat ‘it is with good reason that [non-combatant immunity] . . . has grown intoa custom with the nations of Europe, at least with those that keep up standingarmies or bodies of militia. The troops alone carry on war, while the rest of thenation remains at peace’ (cited in McKeogh 2002: 102). James Turner Johnson(2000) points out that these early philosophers, from Vitoria and Grotius toBonet, discriminate between those fighting and those not fighting � andindicate the need for protection of the latter. These thinkers further advancethe PNCI’s central place in just war theory, tying it to the heart of both jus adbellum and jus in bello, and the practice of limiting the scope and magnitude ofwarfare.

222 E.K. Gade

In just war theory, combatants are characterized as (predominantly) willingparticipants in warfare, able to defend themselves, engaged within a formalstructure governed by rules of warfare � for example, rights as prisoners ofwar under the Third Geneva Convention � and, thus, do not requireadditional legal protection. As van Creveld (1991: 41) states:

Soldiers were defined as personnel licensed to engage in armed violence on behalf of thestates . . . to obtain and maintain their license, soldiers had to be artfully registered,marked and controlled to the exclusion of privateering. They were supposed to fightonly when in uniform, carrying their arms ‘openly’ and obeying a commander who couldbe held responsible for their actions. They were not supposed to resort to ‘dastardly’methods such as violating truces, taking up arms again after they had been takenprisoner, and the like. The civilian population was supposed to be left alone, ‘militarynecessity’ permitting.

Non-combatants and civilians, however, are not parties to the conflict, areconsidered innocent, and are unable or unwilling to defend themselves. Theycan be placed in danger simply by proximity to conflict, as happened with theLaconia, or can be directly targeted, as today’s situation in the Congo shows.As a result, a body of law has evolved specifically addressing their protection.In short, the killing of civilians and those judged to be innocent is consideredworse than the killing of soldiers (Walzer 1977: 135�159). It has becomepolitically important for powerful states to endorse this paradigm and upholdnon-combatant immunity.

Twentieth-century writers, such as Woodrow Wilson, Bertrand Russell andMichael Walzer, condensed previous generations’ thinking about the ‘just-ness’ of warfare and presented a relatively simple paradigm: ‘combatantscould be clearly distinguished [in theory at least] from non-combatants andthe latter could be granted immunity with little impact on the conduct of war.Emerging ideas about humanitarianism [have] reinforced this existing practiceof limited war’ (McKeogh 2002: 119). Nevertheless, limited war gave way tothe era of total war. Mutating conceptions of sovereignty ensued thereafter toinclude individual freedoms and rights. Sovereignty as human security haseven begun to place the rights of the individual over the needs of the state.This evolution has huge impacts for the norm of non-combatant immunity,and is discussed further below. First though, this article examines the legalframework that has evolved to define non-combatancy and constrain warfarefor the protection of non-combatants.

International Law � The Codification of the PNCI

Early Laws (1860�1945)

Codifying the norm of non-combatant immunity has followed a long course.Since its inclusion in the Lieber Code (1863) in the American Civil War, thePNCI has been carried forward and continues to be a cornerstone principle ofinternational laws of war, most recently adopted in the 1998 Rome Statute ofthe International Criminal Court (ICC). The Lieber Code, prepared asguidelines in 1863 for US armies in the field, lays out succinctly the ideology

Defining the Non-Combatant 223

behind non-combatant immunity: ‘22. . . . the unarmed citizen is to bespared in person, property, and honor as much as . . . the commander of thehostile troops can afford to grant in the overruling demands of a vigorouswar.’

Thereafter, the non-combatant immunity norm appeared in Article 7 ofThe Laws of War on Land, from 9 September 1880, which states that ‘it isforbidden to maltreat inoffensive populations’. The 1907 Hague Conventiongives a third clear example of the codification of protection of non-combatants in Article 25, which states that ‘the attack or bombardment, bywhatever means, of towns, villages, dwellings or buildings which areundefended is prohibited’.

World War I had a profound impact on the concept of civilian immunity inwarfare, because civilians suddenly became a primary target. Thus, WorldWar I marked the start of Mary Kaldor’s era of ‘total war’ (1998). Despiteprevious codifications, protections for non-combatants at the start of WorldWar I were minimal. The new weapons and tactics, including airplanes,increased civilian targeting in warfare. In response, The Hague Draft Rules ofAerial Warfare (1923) prohibited terrorizing the civilian population by aerialbombardment and provided the first clear delineation between civilians andmilitary personnel. These provisions indicate the recurrent and pervasivenature of the non-combatant immunity norm in international consciousness.

World War II to Present

The tactics used in World War II shocked the world. Indiscriminate aerialbombings in London, Dresden, Hiroshima and Nagasaki claimed manythousands of civilian lives. The Nazi state-sponsored genocide culminating inthe Holocaust brought forth demands for legal redress and the institutionaliza-tion of legal protocols to ensure the protection of the non-combatant andcivilian population. The resulting Nuremberg Principles (1950) were particu-larly important, Principle VI (c) especially so, as it defined a crime againsthumanity: ‘murder, extermination, enslavement, deportation and otherinhumane acts done against any civilian population’. This is an expression ofthe evolving norm of civilian protection, expressly prohibiting inhumane actsperpetrated against a civilian population. It suggests that these crimes areamong the worst of all crimes, and that killing civilians/non-combatants isuniquely abhorrent and among the few punishable offences in internationallaw. James Turner Johnson (2000: 432) emphasizes that concern for the non-combatant is found in many different types of international law, including‘limitation of certain means of war (e.g. bombardment and pillage) andweapons of war (restrictions or prohibitions aimed at chemical, biological andnuclear weapons and at conventional weapons with indiscriminate effects), theprevention of genocide, and the protection of cultural property’.

The 1948 Universal Declaration of Human Rights (UDHR) embodies thesame ideological principles as those underlying the norm of non-combatantimmunity. The UDHR includes the principle that individuals should not beunjustly subjected to hardship and conflict not of their making. The UDHR is

224 E.K. Gade

also a major step away from Westphalian conceptions of sovereignty because itemphasizes the rights of the individual and their primacy over state interests.

A Fourth Geneva Convention, specific to the protection of civilians andnon-combatants, was convened in 1949. Article 3, Section 1 defines civilians(listed in the next section) and states that these individuals ‘shall in allcircumstances be treated humanely’. This is supported by Article 2, Section 4of the UN Charter, which bans the use of (aggressive) force, and Articles 6and 7, which allow for the use of peacekeeping troops in defence of humanrights violations by states.

In the following decades the Cold War represented an aberration from thesteady advance of laws designed to protect the non-combatant. Deterrencethrough the threat of mutual mass destruction of the entire civilian populationof each country was an unprecedented idea. The Cold War and the UDHRrepresent, in short, opposing conceptions of sovereignty and global power �one emphasizes the pre-eminence of the state to the point of total annihilation,and the other upholds protection of the individual over the goals of the state.

These dual trends represented a world that was both more utopian andmore nihilistic, and one of the results of increasing optimism was thereaffirmation of the PNCI. The most extensive definition of non-combatancy,and the codification of the PNCI and civilian protection, occurred in the 1977First Additional Protocol (AP1) to the 1949 Geneva Convention. Article 48adopts the basic rule of protection and Article 51 states in part that ‘thecivilian population and individual civilians shall enjoy general protectionagainst dangers arising from military operations.’ AP1 was of seminalimportance to the establishment of non-combatant immunity, and itrecognized ‘the revival of Just War Theory in the context of wars of self-determination’ and self-defence (Gardam 1993: 8), which had fallen out offavour in preceding decades.

AP1’s origins date back to the 1956 Draft Rules of the InternationalCommittee for the Red Cross (ICRC), which called for a single body of law(international and internal) designed to protect civilians in situations ofarmed conflict.2 The ICRC’s goal was to ‘persuade States to adopt treatyrules to protect civilian populations from the effects of bombardment, takinginto account the rapid development of new methods and means of warfare’(ICRC 1956). These draft rules were eventually codified, with someexceptions, as Additional Protocols 1 and 2. Colm McKeogh (2002: 140)sums up the importance of AP1:

AP1 removed the gap that existed since the Hague Regulations between the categories ofcombatant and civilian . . . [I]rregular combatants . . . could move from the category ofcombatant to the category of civilian (and back again) depending on their activities atany given time . . . It is no longer the role of combatant, but the act of combatancy,which matters. The role of combatant need no longer be formally occupied and theactivity of combatancy becomes an indicator of combatant status.

Article 8(2) (b) (i) of the 1998 Rome Statute of the International CriminalCourt defines a war crime as one that involves ‘intentionally directing attacksagainst civilian objects, that is, objects which are not military objectives’, and

Defining the Non-Combatant 225

further defines a crime against humanity as ‘any of the following acts whencommitted as part of a widespread or systematic attack directed againstany civilian population’. This is a powerful advancement of the PNCI,because it criminalizes harm to civilians on an international level andprovides enforcement mechanisms for crimes committed in wartime.

While these legal precedents and definitions of non-combatant have beencodified, challenged and reinstated in national and international laws, theyrepresent an idealistic, even utopian, view of war. The internationalcommunity uses the PNCI not only to justify war, but also as a way toredress failures to protect non-combatants in whatever war has just passed.In reality, however, the non-combatant immunity norm is used, in manyways, solely to suit the political interests of certain powerful states. We needlook no further than the United States’ selective involvement in the varioushumanitarian crises of the 1990s (from Mogadishu, to Rwanda, to theBalkan conflicts) under the Clinton administration to see that while statescan use the plight of non-combatants to justify intervention, they can just aseasily ignore it.

Existing Definitions � Derived from History and Now Codified in International Law

International Law

The Fourth Geneva Convention, and its 1977 Additional Protocol 1, are thetwo documents providing the clearest definition of non-combatants, whichare denoted as ‘protected persons’. Article 3, Part 1, of the Fourth GenevaConvention mandates the protection of non-combatants, stating that ‘personstaking no active part in the hostilities, including members of armed forceswho have laid down their arms and those placed hors de combat . . . shall in allcircumstances be treated humanely.’ In Article 15, it provides for safe zonesfor ‘(a) wounded and sick combatants or non-combatants; (b) civilianpersons who take no part in hostilities, and who, while they reside in thezones, perform no work of a military character’. Part III of Section II dealsentirely with the appropriate treatment of ‘protected persons’.

As Bothe et al. point out, AP1 embraces a uniquely broad definition ofcivilian. They state that, under the new rules presented by AP1, the term‘civilian’ can be applied to

persons directly linked to the armed forces, including those who accompany the armedforces without being members thereof, such as civilian members of military aircraftcrews . . . [r]eleased prisoners of war . . . [c]ivilians employed in production, distributionand storage of munitions of war, and . . . [c]ivilians who are taking, or have taken part inhostilities without combatant status. (Bothe et al. 1982: 294)

Bothe et al. also state that this last group have their protected status removed bySection 1 Part IV, but only during periods when they are actively engaged infighting. In theory, this definition is simple: protect anyone who is not, at themoment you see them, actively fighting. In practice, however, difficulties abound.

The breadth of the definition of non-combatant in AP1 is at onceprotective and un-protective. Its broad scope means that it can be applied

226 E.K. Gade

to almost anyone, and, intentionally, this prevents individuals needingprotection from being excluded. It also allows authorities on the ground totake the local context into consideration in making appropriate distinctionsbetween who is a combatant and who is a non-combatant. Importantly, thedefinition of non-combatant is not legally linked to innocence and guilt.3

Nevertheless, when actually standing at the gate of a refugee camp,attempting to make judgments about who is ‘worthy’ of entering a campand who is not, the lack of clarity in the definition means that decisions arehighly subjective, and in this way, the definition is un-protective. JeffrieMurphy (1973: 529) aptly illustrates the importance and the difficulty ofdefining combatancy:

Frontline soldiers are clearly combatants; babes in arms clearly are not. And we knowthis without judging their respective moral and legal guilt or innocence. And thus theworry, then, is the following: Under what circumstances is an individual truly acombatant?

Additionally, what is the difference between a non-combatant and a civilian?

Non-Combatant vs. Civilian

Two primary terms employed in these definitions have, over time, driftedcloser together. Certain protections are afforded to non-combatants, as inThe Hague Draft Rules of Aerial Warfare, while others are awarded tocivilians, as in The Fourth Geneva Convention and Additional Protocols 1and 2. While the terms non-combatant and civilian are certainly related, thereare notable distinctions. When delineating these differences, it is important toremember that they are often used as though they mean the same thing, andare frequently used interchangeably in the literature and in law. The denoteddefinition of a non-combatant is ‘a person who is not directly involved incombat’ (American Heritage Dictionary). However, political discourse,international aid organizations and the media tend to equate the term non-combatant � simply someone who is not fighting at the time of definition � tocivilian. A civilian is defined as ‘a person following the pursuits of civil life,especially one who is not an active member of the military, the police, or abelligerent group’ (American Heritage Dictionary). Civilians, however, whoare not members of any of these groups, can be directly involved in thefighting. For example, in the Rwandan genocide in 1994, an estimated200,000 people took part in the actual killing (Straus 2006), and both sideswere civilians. Civilians can also be involved in the ‘war machine’, which isnecessary for conflict to occur, as demonstrated by the US workforce duringWorld War II. Opinions differ as to whether this implicates them morally asperpetrators of warfare.

Amanda Alexander argues that the term ‘civilian’, and its connotation today,originated in the aftermath of World War I. Before World War I, she contends,there was a culturally and legally defined distinction between ‘citizens’ (ratherthan civilians) and ‘combatants’. A citizen ‘was potentially and probablyaggressive, bound to the fate of his or her state, and, therefore, granted only

Defining the Non-Combatant 227

minimal protection by law’ (Alexander 2007: 359). After the mass destructionresulting from the new technology in the Great War, and resulting propaganda,civilians were ‘feminized, described as vulnerable and deserving of protection’(Alexander 2007: 359). Alexander (ibid.: 368) contends that promoting a socialconstruction of civilians as weak and vulnerable helped to vilify the ‘Germanactions [as] unnecessary, excessive, and illegal’.

Michael Walzer gives an example from the poet Wilfred Owen, of aGerman soldier approaching a regiment and, in his haste to hide, strikes anamusing pose. As a result, none of the soldiers want to shoot him, because, asWalzer (1977: 139) states, ‘a soldier who looks funny is not at that moment amilitary threat; he is not a fighting man but simply a man, and one does notkill men’. This anecdote illustrates both the fundamental, deep-seated natureof non-combatant immunity, as well as the importance of innocence to thehuman psyche.

Even though characterized as weak and vulnerable, the civilian often plays acentral role in war efforts. In World War II, America’s ubiquitous ‘We can doit!’ posters, depicting a woman with her raised fist, epitomizes thisdichotomous role. Civilians are directly involved in their governments,especially in democracies. As John Fuller (1923) argues, civilians’ complicitacceptance of government wars makes them accomplices, indeed participants,in warfare, and, as a result, they must own up to the consequences. In otherwords, they deserve no additional protection. This argument, which iscontroversial, presents a stark challenge to non-combatant immunity: iftrue, it further complicates the distinction between combatants and non-combatants. Article 15 of the Fourth Geneva Convention (referenced above)provides that civilians are those who ‘perform no work of a military character’.

James Turner Johnson (2000: 445; emphasis in original) discusses the termscivilian and non-combatant, saying that they are

not interchangeable . . . [T]o admit such variations is not to say that the concept of non-combatancy is meaningless or irrelevant today but that it needs to be understood andapplied with care and precision in every war in any age, both by combatants and byothers � for example, the media and moral analysts � who comment on particular wars.The point of the distinction, after all, is to require active moral effort to identify who arenon-combatants so as to spare them from direct, intentional harm.

This moral imperative to protect those not directly involved in conflict leadsus to the idea of innocence.

Understanding Innocence

The concept of innocence is central to any discussion of conflict andprotection. The international community tries to protect non-combatantsbecause they are innocent. It creates independent war tribunals and criminalcourts to provide justice to those innocent people who were harmed duringconflict. The international community even uses the idea of innocence tojustify offensive military action, with NATO’s ‘humanitarian bombing’campaigns in the Bosnian and Kosovo conflicts being prime examples.

228 E.K. Gade

Innocence has become a political buzz-word, ubiquitously applied bymajor diplomats the world over. For example, former US president, BillClinton, when ordering the military campaign in Kosovo in 1999, stated that‘we act to protect thousands of innocent people’ (cited in Weil 2001: 79).Sadako Ogata, former head of United Nations High Commissioner forRefugees (UNHCR), stated, in reference to the situation in Goma, Congo, inthe late 1990s, that ‘there were also innocent refugees in the camps; more thanhalf were women and children. Should we have said: ‘‘you are related tomurderers, so you are guilty, too?’’ My mandate � unlike those of private aidagencies � obliges me to help’ (cited in Wilkinson 1997: 110). Ogatacharacterizes refugees as ‘innocent’, an adjective that should be distinguishedfrom the identification of individuals as non-combatants, civilians, orrefugees. Ogata’s classification, added to her statement that many were‘women and children’, is indicative of the entrenched conflation of denotatedlegal definitions of non-combatancy and the subjective, emotional construc-tions of innocence and vulnerability.

Michael Brough (2004: 179) contends that guilt and innocence do notcorrelate directly with the ‘combatant-non-combatant distinction, [which]after all, makes no reference to guilt or innocence; the question of guilt is alogically separate one from the question of combatancy’. Brough highlights acommon concern among both legal theorists and philosophers in the contextof just war theory. Linking guilt with either participation or the likelihood ofbeing killed in an unjust war runs counter to a fundamental principle of justwar theory: the moral equality of combatants.4 The theoretical implicationsof guilt in relation to an individual’s participation in war are beyond the scopeof this article.

This is the crux of the issue: the discussion of guilt should be distinct fromthe denotation of combatancy (a contention supported by most modern justwar theorists). However, when aid workers and military personnel decidewhom to protect and whom to abandon, guilt, innocence and combatancy areall tied together. When authorities on the ground have to decide whom toallow into a camp or whom to evacuate from a conflict zone, it is verydifficult to determine the individual’s level of involvement in the conflict. Asfew combatants seeking aid would wear uniforms and announce themselvesas such, the choice comes down to the decision-maker’s perception ofinnocence and guilt, rather than what we would prefer to believe: that hisdecision is based on distinctions that are clear, logical and amoral. This isprecisely why it is so important to conduct a critical examination of thesedistinctions in practice, because they do not directly correlate with guilt andinnocence, even though individuals and, crucially, the media latch onto, andportray, combatants and combatancy in terms of guilt and innocence.

What is ‘Protection’?

This article highlights the under-acknowledgement of the importance of definingthe term ‘non-combatant’, and applying that definition in situations of violence.This, however, is closely related to protection. Thus, defining ‘protection’ is also

Defining the Non-Combatant 229

critical to the successful understanding of the PNCI. Protection is defined as‘preservation from injury or harm’ (www.dictionary.com). For the purposes ofthis article, protection means safeguarding non-combatants from the brutalityand violence of armed conflict. This includes but is not limited to humanitarianintervention, humanitarian evacuation, provisioning of humanitarian aid andassistance, including food aid, access to asylum, and admittance to refugee/internally displaced persons (IDPs) camps.

Effects of the Changing Nature of Conflict and Sovereignty

Modern Conflict

In his famous work, On War, von Clausewitz defined warfare as ‘an act ofviolence intended to compel our opponent to fulfil our will’ ([1873] 1982:101). War, however, is more than simply violence between two or morepeople. As Rousseau (1968: 56) said: ‘war, then is not a relation between men,but between states; in war, individuals are enemies wholly by chance, not asmen, not even as citizens, but only as soldiers’.

War is a political act. The justification for war, including the use of theterm itself, is still crucial within the international forum. This was recentlyexemplified by George W. Bush’s campaign to convince the internationalcommunity to go to war with Saddam Hussein, by arguing that Iraqpossessed weapons of mass destruction. Walzer (1977: 15) states that ‘themoral reality of war is not fixed by the actual activities of soldiers but by theopinions of mankind’.

Changing the Relationship between Combatants and Non-Combatants

Historically, militaries were distinct from civilian society. They engaged informal conflicts and had clear rules governing behaviour and encounters.They rarely engaged in violence against civilians. In her ‘old’ wars/‘new’ warsthesis, Mary Kaldor (1998) contends that these ‘old’ wars function to prop upstates, e.g. via the Treaty of Westphalia, and are governed by rules, e.g. theGeneva Convention.

New wars, Kaldor et al. (2006: 97) assert, are ‘fought by networks of stateand non-state actors, often without uniforms . . . where battles are rare andmost violence is directed against civilians’. In new wars, one of the definingfeatures is the breakdown and blurring of lines between combatant and non-combatant. This categorization of two types of warfare � one abandonedbefore the twentieth century and the other used in the Third World today �has come under fire from Stathis Kalyvas (2004) and others. Kaldor,however, acknowledges that these wars have much in common with pre-interstate wars � the wars that took place before the rise of the modernnation-state. She calls them new, ‘not because they are altogether ‘‘new’’, butbecause we can only develop alternative strategies if we see how different theyare from World War II, the Cold War or the ‘‘War on Terror’’ ’ (Kaldor et al.2006: 104).

230 E.K. Gade

And different they are. New wars, or more simply, modern civil conflicts,have changed the relationship between civilians and the military. For one,civilians have frequently become targets of warfare, as in Sierra Leone orLiberia, and in many conflicts, one of the goals is civilian displacement, as inthe case of Congo. David Keen (2008: 12) points out that civilians have alsobecome ‘key perpetrators, for example, as members of ad hoc and unpaidmilitias’. The category of insurgents or belligerents in Iraq is evidence of theincreasing difficulty the military has in telling the difference betweencombatants and non-combatants. Insurgents are civilians in the sense thatthey are non-military.

The issue of terrorism, suicide bombings and the use of children in battlehas further complicated the notion of combatancy. Thomas Lubanga’s childsoldiers in Congo are another example of the conflation of the combatantand non-combatant. While the ICC is not empowered to prosecute anyoneunder the age of 18, the Special Court for Sierra Leone (SCSL) judged thatchildren who were old enough to fight and kill were old enough to be heldresponsible for the atrocities they had committed. The SCSL defined anadult as anyone over the age of 15, a decision that has outraged childprotection agencies. Although international law has codified definitions ofcombatant and non-combatant, the application of such definitions in modernconflict is much more complex, as demonstrated by the SCSL.

While the primary aim of this article is to examine the complex andchanging nature of non-combatant immunity, it is critical to note thatmodern models of warfare affect civilian populations dramatically, not onlyin the sense of complicating the idea of combatancy, but also because civiliansfrequently become the targets of violence. James Turner Johnson (2000: 436)points out that warfare that includes or primarily targets civilians shifts ‘theburden of war . . . decisively to [civilians], but also the means of war morebroadly shifts toward being uncontrolled . . . In the worst cases, when suchwarfare aims not only to dominate the enemy population, but to remove thementirely as a competitor, warfare against non-combatants may escalate tomass killings and even genocide’. Primary examples of this type of warfareinclude war ‘on refugees’ in the Rwanda�Zaire conflict, as well as the conflictin western Sudan.

Changing International Sovereignty Norms

War, in the context of international law, is regulated by rules, and is aboutnation-states and sovereignty. In the words of Kaldor (1998: 95): ‘new warsare globalized wars. They involve the fragmentation and decentralization ofthe state’. In an article concerning how warfare has changed since 11September 2001, Ayers (2005: 33) states that ‘the Bush Administrationasserted this was ‘‘a new kind of war’’ that justified reconsidering the mannerin which the Laws of War would be interpreted and applied’. As Kaldor(1998: 106) observes, ‘what were considered undesirable and illegitimate side-effects of old war have become central to the mode of fighting in the newwars’. The current conflict involving the Lord’s Resistance Army in northern

Defining the Non-Combatant 231

Uganda is an example of many conflicts emerging around the globe today. Itis not a war between nation-states or even between two distinct sides whichare fighting for a clearly articulated goal that is well understood by all parties.

Westphalian Sovereignty

Historically, war was waged to secure state power and sovereignty in aWestphalian sense. Jeffrey Herbst (1996�97: 121) defines sovereignty as the‘unquestioned physical control over a defined territory, but also anadministrative presence throughout the country and the allegiance ofthe population to the idea of the state’. The nation-state is the majorconduit of power in world affairs, and other states are not to interferewith affairs beyond their borders. Max Weber (1918) argues that a state isa body with a monopoly on legitimate violence and the ability to collecttaxes. Charles Tilly (1985) has argued that war ‘made’ the nation-state.Over time, state relationships were constructed so that states had to fightto maintain their boundaries and sovereignty. As a result, war was seen asalmost amoral. The Westphalian state emphasized the primacy of thecombatant and the military where, clearly, state interests superseded therights of individuals.

New Types of Sovereignty

In 1996, Rothchild et al. put forward the ‘sovereignty as responsibility’ thesis.Writing specifically about Africa, they maintained that sovereignty no longerconstitutes protection against intrusion, but instead creates responsibility toboth its citizens and to ‘constituents’ beyond its borders. This is important inthe discussion of non-combatant immunity, because it changes the arena inwhich states act. Sovereignty as responsibility represents a step towards lessinsular state policy � that is, a state becomes responsible to forces outside itsown borders � and subscribes to international documents and treaties,notably the UDHR.

In 1999, Kofi Annan delivered a speech to the General Assembly of theUnited Nations, which laid out a blueprint for a new type of sovereignty. Heargued that ‘states are now widely understood to be instruments at the serviceof their peoples, and not vice versa’ and proclaimed that the aim of the UNCharter ‘is to protect individual human beings, not to protect those who abusethem’ (Annan 1999). He contends that ‘the ways in which states define theirnational interests’ should include the protection of human security, andemphasized the primacy of individual rights, stating that ‘[n]othing in the UNCharter precludes recognition that there are rights beyond borders’.

Viewing international relations through the lens of human security isgroundbreaking. Defined in 1994 by the United Nations DevelopmentProgramme (UNDP)’s Mahbub ul Haq, human security encompasses sevenprimary areas: economic, food, health, environmental, personal, communityand political security. While disagreement continues as to whether this is bestachieved by focusing on providing ‘freedom from want’, ‘freedom from fear’,

232 E.K. Gade

or both, it is clear that increasing emphasis on human security representsa paradigm shift in conceptions of sovereignty.

Kofi Annan’s speech is a radical departure from the Westphalian state, andinstead emphasizes the UDHR and the view that the interests of the individualsupersede the interests of state. This has obviously not found universalacceptance, and states still reign supreme. Nevertheless, this new concept ofstate sovereignty affects the PNCI. Just 15 years before Annan’s speech,governments during the Cold War talked in terms of annihilating entirepopulations. Even though human security has not been achieved around theglobe, this discourse has impacted our socially constructed reality and hasaffected the way that states act over the last decade, primarily in the form ofhumanitarian intervention. This important change was formalized withthe Responsibility to Protect doctrine, as formulated and adopted by theInternational Commission on Intervention and State Sovereignty (ICISS) in2001.

Humanitarian Intervention

Humanitarian intervention is critical to the discussion of non-combatantimmunity because it illustrates the impact that conceptions of individualrights, and public outcry at suffering abroad, have had on the nature of statesovereignty. It is now legitimate to disregard sovereignty in cases of humanrights violations, and individual rights, in some cases, supersede statesovereignty. Humanitarian intervention can be understood as ‘the use offorce by a state that aims to protect innocent people who are nationals ofanother state from harm inflicted or allowed by that state’s government’(Nardin & Williams 2006: 9). Humanitarian intervention is at odds withWestphalian state sovereignty, as the intervention in the affairs of a state byanother state is a breach of the 1648 Peace of Westphalia.

When governments and the UN respond to a humanitarian crisis that isnot at the request of the subject government, they are directly intervening inthe internal affairs of a state. Individual governments, NATO and the UNignored boundaries and state sovereignty when they responded, for example,to the 1999 crisis in Kosovo. In effect, such recognition of human securityover and above, and disregarding, state boundaries and sovereignty, takes alarge stride towards global citizenship, where each state is responsible notonly to its own citizens, but also to the citizens of the world. Humanitarianintervention is the epitome of non-combatant protection in that in extremecases, it justifies the use of lethal force for the protection of others.

Responsibility to Protect

The 2001 Responsibility to Protect doctrine, drafted in Canada, was officiallycodified as United Nations Security Council Resolution 1674, which‘[r]eaffirm[ed] . . . the responsibility to protect populations from genocide,war crimes, ethnic cleansing and crimes against humanity’ (United Nations2006). R2P is unique in its emphasis on the responsibility of the international

Defining the Non-Combatant 233

community to protect civilians (Wills 2009). It is no longer a voluntaryprocess; the norm has almost become a moral mandate. R2P supersedes statesovereignty and is representative of an international acceptance of theprimacy of the UDHR.

Humanitarian intervention and, specifically, R2P, represent an interestingdichotomy. Existing international law is based on a conception of war andstate sovereignty that is not entirely relevant today. Whether one calls themnew wars, civil wars or simply modern conflicts, it is clear that what happensin warfare today is very different from the type of binary, state-sponsored warinvolving armies and uniforms that is described in international law. R2P andhumanitarian interventions are examples of the way the changing nature ofsovereignty and civilian protection norms have outpaced much of the legalframework underpinning international law.

Politics: The Effect of Perception and Social Construction on Combatancy

This article contends that the normative conception of old wars, described byMary Kaldor, continues to be used, because formal, organized wars playnicely to civilian audiences interested in war as a means of correctinginjustices. As Michael Foucault (1969) famously emphasizes, discoursecreates reality: truth and reality, as we know them, are social constructions.The manner in which we speak about certain events creates our perception ofhow we � and others � think about those very same events in the future. Theinformation that society accepts and digests as real or true may be radicallydifferent from factual data. Foucault (1982: 221) states that ‘to govern, in thissense, is to structure the possible field of action of others’.

On an individual level, social conceptions about who is innocent andvulnerable have drastic implications for authorities on the ground in conflictzones. For example, as Carpenter (2006: 14) states:

Gender constitutes not these concepts themselves [the civilian/combatant distinction] butthe socio-linguistic practices through which these concepts are deployed in internationalsociety. These language practices, generated by the gender sub-norm, naturalize theadoption of specific rules, such as ‘spare the women and children’ or ‘women andchildren first’ that do not accurately correspond to regime principles. Thus, the sub-normwarps the way that the ‘civilian’ is understood and the way the norm is enacted.

The person who chooses which individual is allowed onto an aircraft to belifted out of Kosovo is affected by the raw power of social discourse. Thesocial construction of our conception of the civilian/non-combatant is of onethat is innocent and vulnerable � and that conception is likely to depict thecivilian as female.

This analysis can be expanded from the personal level into the interna-tional legal framework. As Rosalyn Higgins (1994: 1) notably stated:‘international law is not rules. It is a normative system’. A norm is ‘aprocess, a system of authoritative decision-making. It is not just the neutralapplication of rules . . . the role of international law is to assist in a choicebetween these various alternatives’ (Higgins 1994: 267). International

234 E.K. Gade

law, a normative system, is ‘harnessed to the achievement of common values �values that speak to us all’ (Higgins 1994: 1). Kofi Annan’s 1999 speech alsodemonstrated this.

Public perception, and the resulting pressure on politicians to protect thosethe public deems ‘worthy’ of protection, can influence the very legalframework within which states act. As discussed above, creating the identityof a civilian, as codified in modern international law, was the result of achanging dictum. As Amanda Alexander (2007: 376) notes:

The ideological and technological imperatives of the First World War inserted a civilian.The civilian was weak where the citizen was strong, exposed where the citizen wasignored, feminine and childlike where the citizen was ferocious, and esteemed where thecitizen was despised.

Another example of changing norms comes from the aftermath of September11, 2001, when the Western world declared a ‘war’ on terrorism. The War onTerror leads US and Western leaders to use ‘a progressively wider definition ofthe enemy’ (Keen 2008: 96). According to former US Defence Secretary,Donald Rumsfeld: ‘the reality is, the set of facts that exist today withal-Qaeda and the Taliban were not necessarily the set of facts that wereconsidered when the Geneva Conventions were fashioned’ (cited in Ayers2005: 33). The inability to narrow the conception of ‘terrorist’ down to aspecific group of individuals means that, in this particular conflict, there is noclear definition of combatant, which, in turn, makes it nearly impossible toprotect those who are non-combatants. As a result, laws that were designedto protect American soil, such as the Homeland Security Act of 2002, have ledto the illegal detention without charge of ‘innocent’ civilians, notably in theinfamous detention centre at Guantanamo Bay. Figure 1 depicts who can belegally detained under post- 9/11 US policy, and it includes non-combatants.

Examples and Case Studies

UNHCR in the Balkans � Who is the Innocent?

The crises in the Balkans during the 1990s are perhaps the best examples ofhow incorporation of the notion of ‘innocence’ in the definition of non-combatant can affect protection policy. The Balkan crises are littered withsuch examples, from the process of choosing candidates eligible forhumanitarian evacuation of refugees and asylum seekers from Macedonia,to the sex-selective massacre at Srebrenica.

Persistent gender norms define women and children as ‘innocent’ and‘vulnerable’ (Cockburn 1998, Hyndman 2000, Carpenter 2006). These normscombine with social conceptions equating ‘innocence’ and ‘vulnerability’ tonon-combatancy/civilian status. As a result, when organizations � from theICRC to the UN � attempt to evacuate civilians from conflict zones, they arefar more likely to take women and children than battle-age civilian men(Jones 2001). This is true, despite studies showing battle-age men to be themost likely of all civilians to be killed in conflict (Jones 2001, Carpenter 2002,

Defining the Non-Combatant 235

2006). The chilling quote ‘Larry. No men under sixty, OK?’, by GeneralMorillon to UNHCR Officer Hollingworth, when discussing humanitarianevacuation from Srebrenica in 1993 (cited in Carpenter 2006: 131), puts thesebiases into stark perspective.

The Bosnian and Kosovo conflicts demonstrate the under-recognized, butsignificant, impact that Western conceptions of gender and gender normshave on policies brought to negotiations in the UN or within non-governmental organizations (NGOs), as well as affecting the context inwhich such policies are discussed. Western gender norms are ubiquitous, andyet few policy-makers care to examine or acknowledge the drastic impactsthat the gendered cultural lens has on humanitarian evacuation policy.Carpenter (2006) states that the obfuscation of adult civilian male vulner-ability in conflict and evacuation polices, resulting from gender constructions,has allowed the massacre of civilian men in conflicts around the world.

This example extends beyond a simple issue of gender, as it shows howperceptions of the non-combatant can be altered and influenced byperceptions of vulnerability and innocence. The ramifications of the failureto examine critically our normative conceptions and the definition of non-combatant in the context of protective policy can have wide-ranging andharmful repercussions. While Srebrenica cannot be blamed on one factoralone, the failure to protect those 8,000 men and boys is certainly tied to the

Figure 1. The ‘Six Floors’ of Detainees

Source: Ayres (2005: 38).

236 E.K. Gade

fact that their need for protection was not recognized by those empowered toprovide it.

Refugee Crisis in Goma

In the eyes of the public, protection of civilians and supplying emergencyassistance is straightforward. To laymen, it is generally believed that aid andprotection can do no wrong and, therefore, much like with the PNCI, there islittle examination of the consequences of protective policy. The permeation ofthis ‘no-harm’ attitude into the non-profit framework is highly problematicand part of the reason for today’s definitional quagmire concerningcombatancy.

The aftermath of the Rwandan genocide, in the Congo refugee camps ofGoma, tragically demonstrates why defining combatancy in the context ofprotection is so important. The events of 1994 led to a mass exodus fromRwanda, with thousands fleeing from persecution for their crimes andothers simply running for their lives. The biblical proportions of theexodus of Rwanda’s refugees, for which the UNHCR, despite its bestefforts, was unprepared, led to confusion bordering on chaos across thecamps in Goma. As tensions mounted, revenge killings and continuationof the genocide by the Interahamwe plagued relief efforts and made Gomaa complex moral dilemma. Writing for Medecins Sans Frontieres, Orbinskiand Bouchet-Saulnier (2000: 1) stated that ‘the failure to deploy a Chapter7 force in Rwanda, and the failure to implement a real solution in theGoma camps, actually worsened the security of civilians by accepting, onthe one hand, a sanitized description of the problem and, on the other, afeasible, rather than an actual, solution’. Goma points to a larger problem:the international community does not like to be directly involved in costlyprotective efforts that are not in their respective national interests; hencethe failure to intervene effectively in Rwanda and the US pull-out fromSomalia.

Goma starkly illustrates the problems of not being able to distinguishbetween combatants and non-combatants. To quote Wilkinson (1997: 110):

Aid agencies faced appalling dilemmas such as whether to continue feeding women andchildren knowing they were also feeding killers; whether to tell the world what they knewabout the 1997 atrocities in the rain forests at the risk of jeopardizing ongoing operationsto save still living refugees; and whether to modify the cornerstone of refugee protection �voluntary repatriation � to save people who would otherwise almost certainly die.

The location of the camps in the heavily populated area around Goma, tooclose to the Rwandan border and armed to the hilt, made it nearly impossibleto protect refugees who had just lived through one of the most horrific eventsin modern history. In response to these events, the international communityresponded, for better or worse, with hundreds of aid agencies pouring into theCongo basin.

By the time aid arrived, the camps were being controlled by theInterahamwe and other members of the old guard, much to the dismay and

Defining the Non-Combatant 237

danger of the innocent refugees in search of relief and protection. Orbinskiand Bouchet-Saulnier (2000: 1) commented that ‘the Goma refugee campswere, in reality, military sanctuaries holding refugees hostage’. Matters cameto a head in 1997, as Wilkinson (1997: 110) describes:

[A]s they struggled across hills and through rain forests, aid workers realized that onoccasion, they had become unwitting accomplices in a brutal killing game. Somerefugees who were lured out of the forests with the promise of food, were instead hauledaway by gunmen and killed.

This Rwandan tragedy puts into dreadful perspective the importance ofdefining combatancy in protection policies. The inability to define comba-tants/non-combatants in a narrow framework contributes to making possibledisasters like Goma. Because distinguishing between the combatant and thenon-combatant is so fraught with difficulty, aid workers tend to assumesimply that they are helping some, and doing some good. In Goma, however,the protection policies enabled the Interahamwe to continue their killing. Thisexample illustrates the importance of critical examination of protectionpolicy and the criteria by which people are selected for protection.

Conclusion

International law currently defines a non-combatant as an individual notactively engaged in violent conflict. The inadequacy of this defin-ition becomes apparent when applied to protection policy. The distinctionbetween combatants and non-combatants has to do with the dichotomybetween soldiers and non-soldiers and was developed in the context of formalbattlefield wars with uniformed armies. Today, there is little consistencyamong international agencies and across national boundaries in determiningwho should be included in these mutually exclusive categories. The changingnature of war today has blurred the line between combatant and non-combatant, and authorities in conflict zones are unable to make precise, legaldeterminations of those not actively engaged in combat. When individuals onthe ground implement protective policies, the exigencies of war dictateadaptive, fluid and inherently subjective decisions. Consequently, decision-makers in conflict zones, unavoidably, rely on normative and sociallyconstructed conceptions of innocence and vulnerability, which are usuallytied to women and children.

As the international community continues to make protective policy, itrelies upon the existing legal framework that embraces the PNCI as afundamental, humanizing element of armed conflict. Moving forward, theinternational community must acknowledge that said legal framework, inparticular, the PNCI, is not being followed or enforced in the new warsongoing today. Policy-makers must take into account that authoritiesworking in conflict zones are unable to supply consistent protection tonon-combatants. The international community must acknowledge, in itspolicy-making, that military and aid personnel are limited, not only by lack of

238 E.K. Gade

resources and personnel, but also by the subjective judgements they areforced to make when implementing protective policy and humanitarianevacuations. Such subjectivity is due, not only to the often shocking andimplacable problems aid workers must address, but also, in large part, to thelack of clarity of the term ‘non-combatant’.

The inadequacy of the definition of non-combatant has deniedindividuals around the globe the protection to which they are entitledunder international law. In violent conflicts, non-combatants seekingasylum or refugee status can appear as a seething sea of humanity. ThePNCI, the non-combatant definition, and the complex set of values theyencompass cannot be systematically applied, and instead, authorities makesubjective value judgments, leaving many ‘deserving’ non-combatants indesperate straits.

Is it really possible to provide guidelines that would accuratelydistinguish between combatants and non-combatants? Most probably, theanswer is no: there are, simply, too many variables. Rather, what isrequired going forward is a fundamental re-envisioning of civilianprotection. Until that is achieved, however, the immediate plight of thenon-combatant can be ameliorated by a less rhetorical, more transparentand honest discussion of the realities of conflict and combatancy. Thenorm of non-combatant immunity makes false promises of protection. ThePNCI is used (and abused) by politicians to provide some modicum oflegitimacy and justification to their often morally inexplicable choicesbetween action and inaction. By frankly explicating the complexitysurrounding the terms defining combatancy, as well as the real impossi-bility of uniformly providing protection for non-combatants, expectationscan be measured, and perhaps more goals can be achieved.

The PNCI continues to be a mainstay of international law, andcommitting the international community to utopian ideals pushes societyto refine itself. The re-indoctrination of the norm of non-combatantimmunity in the post-Cold War era, while at odds with so many policescreated to support the global War on Terror, is a step towards a world inwhich the primacy of human rights is recognized. Further research andcritical evaluation are required to understand fully the effect of existinglegal definitions concerning non-combatants; how conceptions of comba-tancy are applied in protective policy and humanitarian evacuation;the consequences of such policies for non-combatants; and goingforward, how policies might be reconceptualized to improve non-combatantprotection.

Acknowledgements

I would like to thank Mary Anne Braymer, JD, for her editorial contributionsto this article, and Henrik Syse and the two anonymous reviewers for theirrecommendations.

Defining the Non-Combatant 239

Notes1 See Walzer (1977: Chapter 6) for further discussion of intervention as a primary cause for which a just

war can be fought.2 Indeed the 1864 First Geneva Convention is also known as the Red Cross Convention and was

instrumental in laying down the groundwork for many of the modern rules of warfare, including non-

combatant immunity and protection.3 See prior discussion on jus ad bellum and jus in bello, or the distinction between being ‘guilty’ simply by

participating in an unjust conflict, and being ‘guilty’ by prosecuting the war with unjust force.4 The moral equality of combatants can be summed up as follows: ‘At the core of the Just War tradition is

the fundamental doctrine of the moral equality of combatants. Basically this doctrine says that the

realm of responsibility of combatants on all sides is equally limited to that of the jus in bello.

Combatants cannot be held responsible for the just or unjust nature of the war in which they

participate. The ad bellum responsibility belongs solely to the political decision makers’ (Ceulemans

2007: 99). This is also discussed in Walzer (1977), particularly in chapter 19.

References

Alexander, A. (2007) The Genesis of the Civilian, Leiden Journal of International Law, 20(2), pp. 359�376.

Annan, K. A. (1999) Two Concepts of Sovereignty (New York: United Nations), accessed 16 August 2009,

available at: http://www.un.org/News/ossg/sg/stories/kaecon.html; Internet.

Aquinas, T. (1916) The Summa Theologia of St. Thomas Aquinas, trans. the Fathers of the English

Dominican Province (London: Burns Oates & Washbourne).

Ayres, T. E. (2005) ‘Six Floors’ of Detainee Operations in the Post-9/11 World, Parameters, Autumn,

pp. 33�53, accessed 4 August 2009, available at: http://www.carlisle.army.mil/usawc/Parameters/

Articles/05autumn/ayres.htm; Internet.

Bothe, M., Partsch, K. J. & Solf, W. A. (1982) New Rules for Victims of Armed Conflicts, Commentary on

the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague/Boston/London:

Martinus Nijhoff).

Brough, M. W. (2004) Combatant, Noncombatant, Criminal � The Importance of Distinctions, Ethical

Perspectives, 11(2/3), pp. 176�188, accessed 4 August 2009, available at: http://www.kuleuven.be/ep/

viewpic.php?LAN�E&TABLE�EP&ID�499; Internet.

Carpenter, R. C. (2002) Gender Theory in World Politics: Contributions of a Non-feminist Standpoint?

International Studies Review, 4(3) pp. 153�165, accessed 11 April 2009, available at: http://

www3.interscience.wiley.com/journal/118932908/issue; Internet.

Carpenter, R. C. (2006) Innocent Women and Children: Gender, Norms, and the Protection of Civilians

(Aldershot: Ashgate).

Ceulemans, C. (2007) The Moral Equality of Combatants, Parameters, Winter, pp. 99�109.

Clausewitz, C. (1982) On War, ed. A. Rapoport) , trans. J. J. Graham (New York: Penguin).

Civilian (n.d.) The American Heritage† Dictionary of the English Language, Fourth Edition, accessed 6

August 2009, available at: http://dictionary.reference.com/browse/civilian; Internet.

Coates, A. J. (1997) The Ethics of War (Manchester: Manchester University Press).

Cockburn, C. (1998) The Spaces between Us: Negotiating Gender and National Identities in Conflict

(London: Zed Books).

Creveld, M. (1991) The Transformation of War (New York: Free Press).

Fortin, E. L. and Kries, D. (Eds) (1994) Augustine, Political Writings, (Letter 189) (Indianapolis: Hackett).

Foucault, M. (1969) The Archaeology of Knowledge (New York: Pantheon Books).

Foucault, M. (1982) The Subject and Power, in: H. L. Dreyfus and P. Rabinow (Eds), Michel Foucault:

Beyond Structuralism and Hermeneutics, 2nd ed., pp. 208�226 (Chicago: University of Chicago Press).

Fourth Geneva Convention (1949) Convention (IV) Relative to the Protection of Civilian Persons in Time of

War. Geneva, 12 August 1949, accessed 27 June 2009, available at: http://www.icrc.org/ihl.nsf/

385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5; Internet.

Fuller, J. F. C. (1923) The Reformation of War (London: Hutchinson).

Galtung, J. (1969) Violence, Peace, and Peace Research, Journal of Peace Research, 6(3), pp. 167�191.

Gardam, J. G. (1993) Noncombatant Immunity as a Norm of International Humanitarian Law (Dordrecht:

Martinus Nijhoff Publishers).

240 E.K. Gade

Geneva Convention (1977) A Protocol Additional to the Geneva Conventions of 12 August 1949, and relating

to the Protection of Victims of International Armed Conflicts (Protocol I), accessed 6 August 2009,

available at: http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc1256

41e0052b079; Internet.

The Hague Convention (1899) Convention (II) with respect to the Laws and Customs of War on Land and

its Annex: Regulations Concerning the Laws and Customs of War on Land, accessed 27 June 2009,

available at: http://www.icrc.org/ihl.nsf/FULL/150?OpenDocument; Internet.

Herbst, J. (1996�97) Responding to State Failure in Africa, International Security, 21(3), pp. 120�144.

Higgins, R. (1994) Problems & Processes: International Law and How We Use It (Oxford: Clarendon Press).

Hyndman, J. (2000) Managing Displacement: Refugees and the Politics of Humanitarianism (Minneapolis,

MN: University of Minnesota Press).

International Committee for the Red Cross (ICRC) (1956) Draft Rules for the Limitation of the Dangers

Incurred by the Civilian Population in Time of War, accessed 27 June 2009, available at: http://

www.icrc.org/ihl.nsf/INTRO/420?OpenDocument; Internet.

Johnson, J. T. (2000) Maintaining the Protection of Non-Combatants, Journal of Peace Research, 37(4), pp.

421�448.

Jones, A. (2001) Genocide and Humanitarian Intervention: Incorporating the Gender Variable. Paper

presented at the Fourth International Bi-Annual Conference of the Association of Genocide Scholars,

Minneapolis, 10�12 June.

Kaldor, M. (1998) New and Old Wars, Organized Violence in a Global Era (Cambridge: Polity Press).

Kaldor, M., Kostovicova, D. & Said, Y. (2006) War and Peace: the Role of Global Civil Society, in: H. K.

Anheier, M. Kaldor & M. Glasius (Eds), Global Civil Society, pp. 94�119 (London: Sage).

Kalyvas, S. (2004) The Paradox of Terrorism in Civil War, Journal of Ethics, 8(1), pp. 97�138.

Keen, D. (2008) Complex Emergencies (Cambridge: Polity Press).

Lieber Code (1863) accessed 27 June 2009, available at: http://www.icrc.org/ihl.nsf/FULL/110?

OpenDocument; Internet.

McKeogh, C. (2002) Innocent Civilians: the Morality of Killing in War (Basingstoke: Palgrave Macmillan).

Murphy, J. G. (1973) The Killing of the Innocent, The Monist, 57(4), pp. 527�550.

Nardin, T. & Williams, M. S. (Eds) (2006) Humanitarian Intervention (New York: New York University

Press).

noncombatant (n.d.) The American Heritage† Dictionary of the English Language, Fourth Edition, accessed

6 August 2009, available at: http://dictionary.reference.com/browse/noncombatant; Internet.

Orbinski, J. and Bouchet-Saulnier, F. (2000) Briefing to Security Council Members on the Protection of

Civilians in Situations of Conflict, Medecins Sans Frontieres, accessed 14 April 2009, available at:

http://www.msf.org/msfinternational/invoke.cfm?objectid�751B712F-B3D6-11D4-1FA0060084A6370&

component�toolkit.article&method�full_html; Internet.

Rome Statute of the International Criminal Court, 17 July 1998, accessed 14 April 2009, available at: http://

www.icrc.org/ihl.nsf/WebART/585-08?OpenDocument; Internet.

Ronzitti, N. (1985) Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of

Humanity (Dordrecht/Boston/Lancaster: Martinus Nijhoff).

Rothchild, D., Deng, F. M., Zartman, I. W., Kimaro, S. & Lyons, T. (1996) Sovereignty as Responsibility

Conflict Management in Africa (Washington, DC: Brookings Institution Press).

Rousseau, J. J. [1762] (1968) The Social Contract, trans. M. Cranston (Harmondsworth: Penguin).

Straus, S. (2006) The Order of Genocide: Race, Power, and War in Rwanda (Ithaca, NY: Cornell University

Press).

The Laws of War on Land (1880) (Oxford, 9 September), accessed 4 August 2009, available at: http://

www.icrc.org/ihl.nsf/5a780f680129b33841256739003e6367/b06fb334dc14cbd1c12563cd00515767!Open

Document; Internet.

Tilly, C. (1985) War Making and State Making as Organized Crime, in: P. Evans, D. Rueschemeyer & T.

Skocpol (Eds) Bringing the State Back (Cambridge: Cambridge University Press), accessed 16 August

2009, available at: http://www.jesusradicals.com/wp-content/uploads/warmaking.pdf; Internet.

UNAMA (2009) Afghanistan: UN Humanitarian Coordinator Condemns Attack on NGO Staff and Calls for

Security for Aid Workers, accessed 12 August 2009, available at: http://www.reliefweb.int/rw/rwb.nsf/

db900SID/JBRN-7TBJEH?OpenDocument; Internet.

United Nations (2006) United Nations Security Council Resolution 1674, accessed 4 August 2009, available at:

http://daccessdds.un.org/doc/UNDOC/GEN/N06/331/99/PDF/N0633199.pdf?OpenElement; Internet.

Defining the Non-Combatant 241

Walzer, M. (1977) Just and Unjust Wars (New York: Basic Books).

Weber, M. (1918) The Profession and Vocation of Politics, in: P. Lassman & R. Speirs (Eds), Weber:

Political Writings, pp. 309�369 (Cambridge: Cambridge University Press, 1994).

Weil, C. (2001) The Protection-Neutrality Dilemma in Humanitarian Emergencies: Why the Need for

Military Intervention?, International Migration Review, 35(1), pp. 79�116.

Wilkinson, R. (1997) Cover story: Heart of Darkness, UNHCR Refugees Magazine pp. 110, accessed 5

August 2009, available at: http://www.unhcr.org/publ/PUBL/3b6925384.html; Internet.

Wills, S. (2009) Protecting Civilians: The Obligation of Peacekeepers (Oxford: Oxford University Press).

Biographies

Emily K. Gade, MSc London School of Economics, is a freelanceresearcher and writer, most recently completing research for LSE GlobalGovernance concerning European security and defence policy. Researchinterests include the nature of modern warfare, atypical combatants,warlords, US involvement in Afghanistan, and transitional justice.

242 E.K. Gade

Copyright of Journal of Military Ethics is the property of Routledge and its content may not be copied or

emailed to multiple sites or posted to a listserv without the copyright holder's express written permission.

However, users may print, download, or email articles for individual use.