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

Abstract

INTRODUCTIONImagine that a Taliban unit has set up a base in Pakistan and is routinely launching attacks against U.S. forces across the border in Afghanistan. Anticipating that their base will be discovered and attacked, the Taliban unit abducts a group of civilians and uses them as human shields. Consider two alternatives regarding the identity of these civilians: (a) they are local Pakistani civilians, or (b) they are American tourists, kidnapped from Islamabad and taken to the Taliban base. The U.S. commander discovers the location of the base and the use of the civilians as human shields. She can either use drones to bombard the base from the air or deploy a ground unit to take the base in face-to-face combat. The first option will minimize the risk to the U.S. soldiers but will heighten the risk of harm to the abducted civilians. What is the right decision (from either a moral or a legal perspective)? Is it permissible for the national identity of the civilians to influence the commander's decision regarding the extent to which she will put her soldiers in harm's way?1This scenario demonstrates the following dilemma: in armed conflicts, to what extent is a state permitted to value the lives of its citizens and other civilians under its control (hereinafter more than it values the lives of other civilians (hereinafter civilians), including civilians on the enemy's side? Moreover, since the value attributed to civilian lives often affects the degree of risk soldiers endure in military actions, are soldiers duty-bound to risk their lives in order to reduce risk to foreign civilians to the same degree as state's civilians? These questions are the focus of this Article.Currently, there is an impassioned debate over the correct legal and moral way to resolve these issues, with an extremely wide range of positions taken. On the one end of the spectrum are those who assert that soldiers must always be willing to bear an enhanced risk of harm to reduce the peril of any civilians irrespective of their identity.2 On the other end of the spectrum are those who argue that soldiers must bear an enhanced risk of harm only to reduce the peril to civilians on their side of the conflict.3 Between these two extremes lie several intermediate positions that ascribe varying degrees of risk taking duties on soldiers depending on the national identity of the civilian.4This moral and legal debate (often referred to as the debate on force protection) has intensified in recent years, as the public in Western states has become increasingly weary of the horrors of war and averse to the overwhelming civilian casualties-on all sides-witnessed over the last century.5 At the same time, the Western public has also become increasingly averse to military casualties on its own side.6While the desire to protect these different categories of individuals (namely, state's civilians, state's soldiers, and foreign civilians) has increased, new practical obstacles to achieving such protection have emerged. Specifically, developments in combative technologies, longer range of today's weapons, increased urbanization, and the growth in human population have all made it harder to detach civilians from the battlefield.7 Moreover, some belligerents deliberately increase the risk to civilians on both sides8 by indiscriminately attacking soldiers and civilians on the other side9 and interspersing their fighters among civilians on their side.10 Often, whether for objective reasons-such as technological innovations- or due to the actions of a belligerent, civilians on both sides of the conflict are simultaneously at risk. In such situations, ordering soldiers to act so as to eliminate a threat to their state's civilians often requires action that shifts the risk not only to the soldiers and the enemy combatants but also to foreign civilians.11 In other words, an irreconcilable tension has been created between the different elements of the aspiration to protect human lives during war. …