CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

However, at its worst this frustration, fuelled by outrage and understandable moral
indignation, and possibly sometimes by a sense of moral and cultural superiority, can
translate into full-scale atrocity as at My Lai.
The My Lai Massacre serves also as an extreme example of what can be interpreted as a
gross misconception of ‘enemy non-combatants’. That is to say the tendency
automatically to identify with the enemy all those of the same nationality/ethnicity as
him. When regulars cannot then strike the enemy directly, they may be tempted to
attack him through the proxy of these ‘enemy non-combatants’ – in a mirror image of
the asymmetric fighter’s attacks on the civilian population. The term is in itself a
dangerous one. It makes some sense in symmetric inter-state war and, indeed, allows us
to avail ourselves of the doctrine of double-effect. But the term surely has little
meaning if any in asymmetric warfare and most especially not in conflicts of
humanitarian intervention/rescue in which the civilian population are not ‘enemy non-
combatants’ – to whom foreseeable but unintended consequences are acceptable
proportionate to military necessity – but the ‘victims’ whose rescue is central to the jus
ad bellum of the conflict.
Given this range of additional moral challenges when engaged in asymmetric conflict, it
is necessary to consider the specific, and topical, issue of soldiers’ accountability and
culpability in these circumstances. The issue arises because of the additional challenges
outlined, and because these soldiers are invariably operating not under the LOAC/IHL
but in accordance with national domestic law, or the rules governing use of force by an
occupying power; they are operating among the civilian population; and the
distinctions, as has been argued above, between combatant and non-combatant may be
obscured – often deliberately. At the same time that they may be operating in an
unfamiliar manner, restrained in the use of force, they could be dealing with an enemy
who, through atrocity and through attacks that cannot easily be responded to, seeks to
cause frustration, anger and extreme emotional duress that may cause over-reaction
including indiscriminate and disproportionate responses.
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