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Noncombatant immunity (international norm)

Noncombatant immunity in its simplest form was the notion that those not participating in the fighting of a war should and could be protected from the war’s violence. This simple idea begged the questions of who should be considered a participant in war, whether this protection should be abandoned in the face of conflicting values, and what responsibilities belligerents should have in keeping noncombatants alive beyond refraining from their purposeful slaughter. For instance, should those who manufacture the soldiers’ weapons be considered completely innocent of waging war? Should noncombatants be spared at the risk of soldiers’ lives or the risk of prolonging fighting? Must soldiers avoid attacking segments of an enemy’s economy, like its food supplies, because these are necessary to prevent starvation among noncombatants?

Much of the horror and revulsion inspired by modern warfare, genocide, and terrorism, spring from the violence they inflict on innocent bystanders, individuals posing no immediate threat to their attackers. This aversion to harming noncombatants has supported a long-standing and widespread normative belief that noncombatants should and could be provided with immunity from the violence of armed conflict. Noncombatant immunity has served as a fundamental limit on political violence, and many cultures have come to equate deviations from the norm with what it means to commit an atrocity. In the twentieth century, noncombatant immunity has emerged as a basic human right codified in international law. Violating this right had become a quintessential atrocity.

The Tradition of Noncombatant Immunity

The idea of noncombatant immunity has found purchase in so many diverse religions, cultural traditions, and ways of reasoning that one can call it an international normative value in the twentieth century and arguably much earlier. However, the idea has been a contested one and has taken various forms. One can see a basic form among ancient peoples and more recent small-scale societies. Prohibitions against killing noncombatants developed early in many of the major religious traditions around the world.

European tradition

The historian James Turner Johnson has traced this tradition to two sources in the Middle Ages, one Christian and the other secular. The Catholic church advocated a “Peace of God” to help limit the ravages of medieval warfare, especially those that harmed the church. The Peace of God urged that protection from war’s violence be given to people who had nothing to do with war-making, such as clerics, monks, friars, pilgrims, travelers, merchants, and peasants as well as their animals, goods, and lands. Secular customary practice and the chivalric code also limited the means of fighting. According to these conventions, war was a contest between equals, and the harming of those presumed helpless, such as women and children, was dishonorable. By the sixteenth century, Christian theologians, most notably the Spaniards, Francisco Victoria and Francisco Suarez, integrated these religious and secular customs into a more intricate doctrine of just war. Their writings addressed two distinct but interrelated questions: jus ad bellum, or the requirements for the legitimate initiation of war, and jus in bello, being the legitimate methods for war’s conduct. They drew on the writings of Augustine, Thomas Aquinas, and canon law to elaborate jus ad bellum while the medieval conventions on sparing the peaceable and helpless became an important element of jus in bello. In the seventeenth and eighteenth centuries, European scholars incorporated just war doctrine into the first systems of international law they created. In the legal thought of Hugo Grotius, John Locke, and Emmerich de Vattel, noncombatant immunity became a central principle of a secular exposition of jus in bello. Like the Peace of God, Grotius, Locke, and Vattel bestowed immunity on individuals based on their function during war. If individuals did not directly participate in the prosecution of the war, they did not deserve to be harmed by its violence. Locke and Vattel extended this reasoning to apply to physical structures such as churches and fine buildings that were not used in the war.

Many Americans in 1945 found themselves inheritors of the European tradition of noncombatant immunity. The European version of noncombatant immunity and other diverse sources of the norm shared a few simple ideas but left a number of central questions open to dispute.