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The Distinction between Combatant and Noncombatant in the Law of War

Published online by Cambridge University Press:  25 April 2017

Lester Nurick
Lester Nurick*
Affiliation:
Judge Advocate General's Department, U. S. A.
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Extract

The distinction between combatants and the civilian population has been characterized not only as one of the fundamental principles of international law, but as its greatest triumph. The purpose of this paper is to show that both in point of fact and in theory the distinction has been so whittled down by the demands of military necessity that it has become more apparent than real. On occasion belligerents still give lip-service to the doctrine but when confronted with a particular military situation in the course of actual combat activities in most cases they have either refused to recognize the distinction or, possibly in order to satisfy the requirements of their legal advisers, have extended the definition of combatant to include almost all important elements of the enemy's civilian population.

Type
Research Article
Information
American Journal of International Law , Volume 39 , Issue 4 , October 1945 , pp. 680 - 697
Copyright
Copyright © American Society of International Law 1945

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References

2 The terms “noncombatant” and “civilian population” are used interchangeably here to include all peaceful inhabitants of a country not attached to or accompanying its armed forces.

3 J. M. Spaight, War Rights on Land, London, 1911, p. 37; J. B. Moore, International Law and Some Current Illusions, New York, 1924, Introduction, viii.

4 There are still many distinctions between combatant and noncombatant in fields removed from actual combat, such as the treatment of captured combatants as prisoners of war as contrasted with the treatment accorded most civilian enemy aliens. See, Wilson, R. R., “Treatment of Civilian Alien Enemies” in this Journal, Vol. 37, pp. 30, 31.Google Scholar

5 Moore, work cited, p. 6.

6 It is interesting to note that this concept of war has not received unqualified recognition in our courts. Thus Chancellor Kent rejected the doctrine in Griswcld v. Waddington (16 Johns. 438, 448), stating: “A war on the part of the government is a war on the part of all individuals of which that government is composed.” Other courts took the same ground: “The whole nation are embarked in one common bottom, and must be reconciled to one common fate. Every individual of the one nation must acknowledge every individual of the other nation as his own enemy—because the enemy of his country” (The Rapid, 8 Cranch. 155, 161, 3 L. Ed. 520); see also White v. Burnley, 20 How. 235, 15 L. Ed. 886, Cook v. U. S. 2 Wall. 218, 17 L. Ed. 755, Lamar v. Browne, 92 U. S. 187, 23 L. Ed. 650. In Techt v. Hughes, 128 N. E. 185, 188, 229 N. Y. 222, Cardozo, J., stated: “It is not a question of personal sentiments or friendship. It is a question of the allegiance due from the subject of the sovereign. I do not stop to inquire whether international law should put aside this conception of war as involving a relation between individuals, and substitute Rousseau's conception of a relation solely between states… . The Legislature of New York cannot have supposed, when it passed this statute in 1913, that the change had yet been made.“

7 L. Oppenheim, International Law, London, 1940 (6th ed., by Lauterpacht), Vol. II, p. 168. But Oppenheim further states that the distinction has been deeply affected by developments which appeared during and since the First World War: same, pp. 171-173.

8 H. B. Wheaton, International Law, London, 1944 (7th English ed., by A. B. Keith), p. 171. After the First World War it was similarly asserted that that war was different from all other wars, that it was a “total” war, and that the distinction between combatant and non combatant had lost its meaning. Moore took sharp issue with that contention: he argued that other wars had involved as many persons in proportion to the population as had the First World War, and that international law should stand firm on the principle that there is a distinction between combatant and non combatant. Moore, work cited, pp. 1-39. This question has recently been the subject of bitter debate in proceedings before the Grotius Society. In a paper entitled “International Law and the Present War,” read before the Society on November 21,1940, Dr. W. Friedmann reviewed the present practice of nations in the actual conduct of warfare, such as the deliberate bombing of civilians, and went so far as to conclude that the bulk of the present laws of warfare have ceased to be applicable and that the distinction “between military and non-military has become too difficult to be of practical significance“; Grotius Society, Transactions, Vol. XXVI (1940), pp. 211-233, especially p. 223, and Vol. XXVII (1942), pp. 235-237.

9 See Statute of the Permanent Court of International Justice, Article 38, which states: “The Court shall apply: … 2. International custom, as evidence of a general practice accepted as law.” M. O. Hudson, The Permanent Court of International Justice, 1920-194%, New York, 1942, p. 677.

10 United States Rules of Land Warfare, 1940, FM 27-10, pars. 22, 23.

11 Same, par. 24.

12 Same, par. 25.

13 C. C. Hyde, International Law, Boston, 1922, Sec. 655.

14 Wheaton, op. cit., p. 168, and German authorities cited therein.

15 Royse, Aerial Bombardment, New York, 1928, p. 238.

16 See Treaties Governing Land Warfare, War Department TM 27-251, p. 25.

17 Oppenheim, work cited, p. 328. See also discussion to the same effect in Correspondence Respecting the Brussels Conference on the Rules of Military Warfare, Part I, pp. 7,13,19 5-197 Birkhimer states in his Military Government and Martial Law, Kansas City, 1892, p. 196: “In the bombardment of places it is difficult to save any particular structure. Every siege gives evidence of this. To destroy a city with all it contains is indeed an extreme measure, not to be resorted to except for cogent reasons, yet it is perfectly justifiable when no other method suffices to reduce the place and this reduction becomes essential to the successful prosecution of the war.” Garner, J. W., International Law and the World War, New York, 1920, Vol. II, p. 422 Google Scholar; P. Fauchille, Le Bombardement Airien, in Revue Général de Droit International Public Vol. 24 (1917), p. 56.

17a The New York Times, October 11, 1944, pp. 1, 3.

18 The editor of this text, Lauterpacht, states that this expression of opinion was put together from a rough note of the author and that evidently he intended to reconsider it. Oppenheim, work cited, p. 327, note 3.

19 Royse, work cited, p. 239.

20 P. Bordwell, Law of War, Chicago, 1908, pp. 89, 90.

21 Hague Convention IX, of 1907, Art. 1; 36 Statutes 2351; U. S. Treaty Series No. 642.

22 Same, Art. 2.

23 Royse, work cited, p. 229.

24 Hyde, work cited, Sec. 656. “War is not carried on by arms alone. It is lawful to harm the hostile belligerent, armed or unarmed, so that it leads to the speedy subjugation of the enemy“: Article 17, U. S. General Orders, No. 100,1863, quoted in Rules of Land Warfare, United States Army, 1917, par. 173, note 1.

25 FM 27-10, par. 57.

26 Same, par. 55.

27 Same, par. 51.

28 Same, par. 56.

29 J. M. Spaight, Air Power and War Bights, London, 1933, p. 236; Hyde, work cited, Sec. 663; P. Fauchille, Traité de Droit International Public, Paris, 1921 (8th ed., by Bonfils), Sec. 1440 (30). But see the cases of Coenea Brothers v. Germany (Annual Digest of Public International Law Cases, London, 1919-, volume for 1927-1928, Case No. 389) and Kiriadolou v. Germany (same, 1929-1930, Case No. 301), both decided by the Greco-German Mixed Arbitral Tribunal, in which the Tribunal allowed recovery of damage due to the bombardment of Salonica by German aircraft in 1916, and went so far as to hold that the duty of previous notification, recognized in respect of land and naval bombardment, applied by analogy to aerial bombardment.

30 FM 27-10, par. 49.

31 Same, par. 50.

32 Oppenheim, work cited, Vol. II, pp. 628, 629; Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, prepared by the Research in International Law of the Harvard Law School, this Journal, Vol. 33 (1939), Supplement, p. 689.

33 Article 74, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, in same, p. 716. J. B. Moore, “Fifty Years of International Law,” in Harvard Law Review, Vol. 50 (1937), p. 425.

34 Metz and Paris were reduced to submission in 1870 partly by bombardment and partly by starvation; Bismarck argued that both methods were legitimate methods of warfare. Garner, work cited, Vol. II, p. 337. The United States blockade of the Southern Confederacy in the Civil War was likewise a very potent weapon. J. F. Rhodes, History of the United States from the Compromise of 1860, New York, 1910, Vol. V, pp. 396-410.

35 Encyclopaedia Britannica, 14th Edition, Vol. 3, page 736. One of the reasons for not permitting food to be transported to Germany was the impossibility of distinguishing between the civil and military population. As Garner stated: “The Germans had long insisted that their army was the nation in arms; if it was such in the past, it was doubly so during the recent war” (Garner, work cited, Vol. II, p. 338).

36 Oppenheim, work cited, Vol. II, p. 658.

37 Same, pp. 660, 661. See Moore, work cited, pp. 423, 424.

38 Oppenheim, work cited, p. 661.

39 Spaight, Air Power and War Bights, p. 394.

40 The Commercen, 1 Wheaton 382, 388; J. B. Moore, Digest of International Law, Washington, 1906, Vol. 7, p. 679; Hyde, work cited, Sees. 800-805; Article 24, Declaration of London of 1909 (for text see Naval War College, International Law Topics,19Q9, p. 169); Oppenheim, work cited, Sec. 394.

41 U. S. Foreign Relations, 1915 Supplement, p. 332.

42 Hyde, work cited, Sec. 803.

43 J. W. Gamer, “International Regulation of Air Warfare,” in Air Law Review, Vol. III. (1932), p. 318.

44 Hyde, work cited, Sec. 663; W. M. Malloy, Treaties … between the United States and other Powers, Washington, 1910, Vol. II, No. 2032.

45 Hyde, work cited, Sec. 663.

46 Sec. 1, Cir. 136, WD, 7 May 1942. Since the third conference has never been convened, the declaration may be regarded as still binding on the states which have ratified it, in a war in which all the belligerents are contracting parties. About half the states signed the declaration. Among those which did not were Germany, Russia, Prance, and Italy. In consequence of the so-called solidarity clause it was not binding upon any of the belligerents during the First World War. Garner, work cited, p. 103.

47 Holland, T. E., The Laws of War on Land, London, 1908, p. 46.Google Scholar

48 Oppenheim, work cited, p. 408.

49 It seems to be generally agreed that the test of whether a place is “defended” in the traditional sense has little significance in aerial warfare. The inadequacy of the test was recognized in the rules adopted by the 1923 Commission of Jurists, which adopted as a test of the liability of cities to bombardment not whether they are “defended,” but whether they contain “military objectives.” Garner, work cited, p. 118; E. Colby, “Aerial Law and War Targets,” in this Journal, Vol. XIX, pp. 702, 705; B. Hyde, Sec. 663. The Hague Convention of 1907 (Art. 2) relating to marine bombardments allows the bombardment of military objectives in “undefended” towns, forts, and places.

50 See Spaight, Air Power and War Rights, pp. 14-17, 20-21, 30, 202-212, and Chap. X.

51 Oppenheim, work cited, p. 413.

52 Same, p. 413.

53 Moore maintains, however, that there is nothing new about this concept, and that in terms of the relative proportion of the population engaged in the war effort all major wars, from the time of the Persian wars, may be considered total wars: work cited, p. 10.

54 Oppenheim, work cited, pp. 172, 414.

55 Hyde, work cited, Sec. 663; FM 27-10, War Department, par. 48.

56 Royse, work cited, p. 193. See also, Hyde, work cited, Sec. 663.

57 Royse, work cited, p. 232.

58 See also Colby, work cited, pp. 702, 710; P. W. Williams, “Legitimate Targets in Aerial Bombardment,” in this JOURNAL, Vol. XXIII, pp. 570, 577, and Virginia Law Review, Vol. XXVIII, p. 526.

59 The 1923 Commission of Jurists defined “military objectives” as an object the destruction or injury of which would constitute a “distinct military advantage” to the belligerent. It was declared that the sole objectives which might be bombarded were the following: military forces, military works, military establishments or depots, factories constituting important and well-known centers engaged in the manufacture of arms, munitions or distinctively military supplies, and lines of communications or transportation used for military purposes. This relatively restricted view has not found much favor with the modern writers. See Quindry, F. E., “Aerial Bombardment of Civilian and Military Objectives,” in Journal of Air Law, Vol. II (1931), pp. 474, 489.Google Scholar

60 Oppenheim, work cited, p. 416. See also, Garner, work cited, pp. 114-115.

61 Spaight, J. M., “Non-Combatants and Air Attack,” in Air Law Review, Vol. IX (1938), pp. 372, 375.Google Scholar

62 See Eagleton, C., “Of the Illusion that War does not Change,” in this Journal, Vol. 35 (1941), p. 660 Google Scholar, where it is pointed out that the basis of distinction between combatant and non combatant has been destroyed since “every man, woman or child, whether in uniform or not, can be and is used in the belligerent effort.” See also in Virginia Law Review, Vol. XXVIII, p. 526; Williams, work cited, pp. 576-577; W. J. M. von Eysinga, La Guerre Chimique et Le Mouvement Pour so Répression, in Académicde Droit International, Recueil des Cours, Vol. 16 (1927), pp. 329, 332. See also statement to similar effect by Senator David A. Reed, of Pennsylvania, before the U. S. Senate on December 9, 1926 (Congressional Record, Vol. 68, Part I, p. 150).

63 Wheaton, work cited, p. 171.

64 P. XI. To similar effect is A. de Bustamente, Droit International Public, Paris, 1934-, Vol. IV, p. 298.

65 However, there is authority to the contrary on the theory either that if such practices are employed wars are likely to be of shorter duration or are less likely to occur. Wheaton, work cited, p. 171; See also in Virginia Law Review, Vol. XXVIII (1928), p. 527; Williams, work cited, p. 581.

66 Same, p. 573. See Spaight, Air Power and War Rights, pp. 12, 18.

67 In discussing the future of air warfare and in distinguishing it from practice in World War I where it was used as a “side show,” Spaight stated: “Very different will be the conditions in this respect in future wars. The bombing of civilian objectives will be a primary operation of war, carried out in an organized manner and with forces which will make the raids of 1914-1918 appear by comparison spasmodic and feeble… . The attacks on the towns will be the war… . ('No people on earth, it may readily be admitted, can maintain the efficiency of its war activities under the regular intense bombing of its centers of population.' Sir Walter Raleigh, The War in the Air, p. 489).” Spaight, work cited, pp. 12, 13.

68 Garner, work cited, p. 318.

69 Same, p. 112.

70 This policy has been publicly expressed on numerous occasions by British and American leaders. On June 2,1942, Prime Minister Churchill stated: “As the year advances, German cities, harbors, and centers of war production will be subjected to an ordeal the like of which has never been experienced by any country in continuity, severity, or magnitude.” And in May 1943: “ I t is the duty of those who are charged with the direction of the war to . . begin the process so necessary and desirable of laying the cities and the other military centers of Japan in ashes… .” On September 21, 1943, he stated: “The almost total systematic destruction of many of the centers of German war effort continues on a greater scale… . The havoc wrought is undescribable … there are no … lengths in violence to which we will not go.” On March 31, 1943, Sir Archibald Sinclair, Secretary of State for Air, stated: “The targets of Bomber Command are always military, but night bombing of military objectives necessarily involves bombing the area in which they are situated.” On November 5, 1943, Archibald Sinclair stated that 40% of Essen had been virtually destroyed, 54% of Cologne, and 74% of Hamburg ﹛The Times, London, Nov. 6, 1943). On February 3, 1944, General George C. Marshall stated: “The destruction of German industrial cities is proceed ing at a constantly increasing pace … Berlin is now a shambles” (The New York Herald Tribune, Feb. 4, 1944).

71 The New York Times, July 7, 1944.

72 It is interesting to note that in a speech to Parliament describing the robots Prime Minister Churchill did not state that he considered them illegal. In reply to a question whether reprisals would be taken against the Germans, he stated: “ I have said deliberately that was a subject which raised grave considerations upon which I do not intend to embark. That is the best way to leave it.” The New York Times, July 7, 1944.