New York University Public Law and Legal Theory Working Papers

Document Type

Article

Abstract

This paper asks how we should regard the laws and customs of armed conflict, and specifically the rule prohibiting the targeting of civilians. What view should we take of the moral character and significance of such rules? Some philosophers have suggested that they are best regarded as useful conventions. This view is sometimes motivated by a "deep moral critique" of the rule protecting civilians: Jeff McMahan believes for example that the existing rules protect some who ought to be liable to attack (on account of their having voluntarily contributed to the injustice or aggression being resisted). He thinks we would be better off with a different principle of discrimination in warfare. But McMahan acknowledges that for the time being we must stick with the rules that we have. The present paper does five things: (1) it explores and takes further some of McMahan's insights about the importance of existing positive law in this area; (2) it argues that some of the features that philosophers find problematic with the rule offering blanket protection to all civilians have to do with administrability; (3) it raises some questions about whether the rule protecting civilians can really be regarded as a convention (and it argues that certainly it cannot be regarded as a "Lewis-convention" in a strict sense); (4) to the extent that the rule can be regarded as conventional, the paper argues that it remains a deadly serious moral rule, partly because of the circumstances of death and destruction in which it operates and which it tries to ameliorate, and partly on account of its fragility. The fifth point is the most important. (5) The rule protecting civilians does not operate in circumstances in which, apart form positive law, civilians like everyone would be liable to attack. The rule operates against a moral background in which all deliberate killing is to be regarded as murder; some deliberate killings (of combatants) are privileged in warfare; but the rule about civilians reflects the fact that this is a strictly limited privilege and that those who target civilians do not get the benefit of it. Changing our view of the default position in this way enables us to better understand the distinctive work that this rule does.

Date of Authorship for this Version

March 2009