Journal Article

The Dispensable Lives of Soldiers

Gabriella Blum

in Journal of Legal Analysis

Published on behalf of The John M. Olin Center for Law, Economics and Business at Harvard Law School with the support of the Considine Family Foundation

Volume 2, issue 1, pages 115-170
Published in print January 2010 | ISSN: 2161-7201
Published online January 2010 | e-ISSN: 1946-5319 | DOI: http://dx.doi.org/10.1093/jla/2.1.115
The Dispensable Lives of Soldiers

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Why are all soldiers fair game in war? This paper challenges the status-based distinction of the laws of war, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. I argue that the changing nature of wars and militaries casts doubts on the necessity of killing all enemy combatants indiscriminately.

I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible.

I discuss the practical and normative implications of adopting these amendments, suggesting possible legal strategies of bringing them about.

Journal Article.  0 words. 

Subjects: Jurisprudence and Philosophy of Law

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