Can Killing of Innocent Civilians at War be Justified?
POST WRITTEN BY: Syed Alam (’17), J.D. Pace Law School
According to the ICRC Principles of Distinction between Civilians and Combatants Rule 1, one of the pillars of international humanitarian law permits military commanders to direct operations against military objectives. At the same time, however, Rule 1 also requires that military commanders distinguish between civilian and military object. This concept was already codified in St. Petersburg Declaration of 1868, which states that States engaging in a war should only commit acts that will help them to weaken the military forces of the enemy party.
It is the duty of the military commander to determine who civilians are and who military opponents are. At time of war, every military force faces a threat from their opponent; however, it hardly faces threats from civilians. Thus, civilians should not be harmed during any war. It is the duty of the military commander to take such steps and measures as to prevent harm to civilians.
How do we define civilians? According to article 50(1) of the Additional Protocol 1 of the Geneva Conventions, 1949, civilians are the persons who do not belong to one of the categories mentioned in articles 4(A)(1)-(3) and 4(A)(6) of the Third Geneva Convention 1949. The categories listed are member of armed forces, member of militias or member of volunteer corps. A person who by any act is not facilitating or acting as part of the armed conflict is a civilian. Additionally, as held by the criminal tribunal in Blaskić, “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Judgement, ¶ 111 (Int’l Crim. Trib. for the Former Yugoslavia Jul 29, 2004).
According to article 50(3) of the Protocol 1 of the Geneva Conventions 1949, even if a civilian population includes some armed people, still they do not lose their civilian status. For example, if militants enter a park filled with civilians – an attack cannot be launched in the park even if intended to only target the militants because under the principle of distinction the civilians ought to be protected. The criminal tribunal in Prosecutor v. Stanislav Galić further confirmed this principle and held that “[a] population may qualify as ‘civilian’ even if non-civilians are among it, as long as the population is predominantly civilian.” Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, ¶ 143 (Int’l Crim. Trib. for Former Yugoslavia Nov. 30, 2006).
According to article 51 of the Protocol 1 of the Geneva Conventions 1949, the protections civilian enjoy during wartime include:
- Protection against any danger arising out of military operations.
- Civilians should never be the objects of attack. Any act to spread terror among the civilian people is prohibited.
- Unless and until civilians take direct part in hostilities, civilians enjoy all the protections mentioned in this article.
- Indiscriminate attacks such as attacks not directed against a specific military object, methods or means of combat that are not specifically applied to a military object, attacks which do not distinguish between civilian object and military object.
- Any attack done to several military objects, situated within a civilian locality, bombardment upon such area in prohibited. Any act, which might result into suffering of civilians, is prohibited.
- Attack towards the civilians by the way of reprisal is prohibited.
- Civilians should never be used to shield any military object, to immune it from military operations, by any of the parties.
Under article 8 of the Rome Statute, war crime includes grave breaches of Geneva Conventions of 1949 and also violation of any laws and customs of international laws regarding international armed conflict. As discussed above, Geneva Convention of 1949 made it a crime to kill civilians during war. Article 8 of the Rome Statute re-affirms that position. Thus, killing civilians during war is a war crime.
Although international authorities put forth effort to protect civilians, the history speaks for itself – civilians are often not spared. Although, adequate international laws are in place, States engaged in war often overlook this principle of distinction. The law appears clear – civilian killing in war is a crime. The question then is why these international laws are ignored? States have often used the term ‘collateral damage’ to justify the killing of civilians. However, human life is priceless and no cause is big enough to spare innocent human life. The United Nations should find a way to enforce the international laws addressing civilian killing in war for the sake of humanity.
Idealism is wonderful, but reality unfortunately changes the situation.
Does anyone really believe that the Allies in WWII would have beaten the Nazis/Axis if they hadn’t bombed the living daylights out of the enemy in retaliation for the bombing of London (and surrounds), and to stop the atrocities perpetrated by the Germans and Japanese against civilians? The Allies destroyed antiquity in Europe, mostly in Germany, but in other places, wiping out Hamburg and Cologne and Berlin, ad infinitum, and let’s not forget Japan, killing millions upon millions of “innocent” civilians, just as the aggressors had done, in order to win a “just” war.
So lets not be too naive worrying about whether certain international laws of war are violated by killing innocent civilians when the purpose is to stop (read: wipe out) the perpetrators of crimes against humanity, such as ISIS and Hamas and Hezbollah and their ilk. Sometimes, the end really justifies the means. Especially when the targets are those who purposely ignore and violate the same laws they wish to hold others to obeying.
This becomes a world policy, philosophical, world reality checking issue, not just a supposed legal issue.
And, if ISIS and its similar brothers want to make it a “religious” issue, then I guess we revert to an “eye for an eye” mentality and all the international conventions/treaties be damned.
You can’t, as history has proven, beat a bully with your hands tied behind your back, no matter how humanitarian you want to be.