The Moral Right of the Soldier to Kill

The moral right of the soldier to kill is a privilege unique within the scope of human activity. The soldier has forfeited his right to not be killed, in exchange for the moral privilege and responsibility to kill an enemy soldier who has entered into the same form of contract. The rights to kill and to be killed are reciprocal. The soldier may not kill just anyone, the civilian still retains the privilege to not be killed, and the soldier maintains her right to not be killed by anyone who is not a soldier, and therefore, still retains the right to life. It is important to note that the soldier does not forfeit the right to self-defense. Entering this moral contract may be voluntary, as in the case of the US armed forces, or involuntary, in the case of a conscript force. This is the moral equality of soldiers.[1] The right to kill, and the subsequent forfeiture of the right not to be killed is sanctioned within the structure of “Legitimate Authority.”[2]

The implication here is that actions on the part of one state’s military to kill enemy soldiers is undertaken with the understanding that members of its own military will be put at risk. If the military action is not important enough to risk the lives of one’s own soldiers, but is guaranteed to end the lives of enemy soldiers, the equity of this moral contract is called into question.

This contract is made more complex by non-state actors and asymmetrical warfare. The individuals participating in a combatant function in the various theaters in which drone warfare is being conducted are civilians. They do not generally meet the Geneva Conventions’ litmus tests to qualify as combatants. However, they do engage in combatant like activities. These individuals are criminals. They have not forfeited the right to not be killed in return for the right to kill, nor do they operate within the framework of legitimate authority. Therefore, for the duration of the time they actively participate in hostilities, they are legitimate targets, and have forfeited their right to not be killed, but have not gained the right to kill.[3] In this situation, the right of soldiers to kill those engaged in hostilities is threat based. They act in a similar manner to police who face a criminal threatening police or civilian lives. While the criminal engages in threatening behavior, they are liable to be killed, when they cease to engage in threatening behavior, they may be interdicted by other means, but their right to not be killed is regained.[4]

This calls into question the legitimacy of any use of force that would kill individuals that fit the afore mentioned description, when no member of their force, or of the civilian population they protect is directly threatened. This judgment is challenged by the recent conception of the classification, “continuous combat function.” The ICRC provided this term as interpretive guidance to describe those “whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities.”[5] This was designed to deal with those who would take advantage of the Protocols. Those who engage in continuous combat function do not gain any rights. Rather, they fail to regain the right not to be killed by temporarily ceasing to engage in hostilities.[6]

Some of the moral discomfiture that follows the conception of killing these individuals is alleviated with the derivation of continuous combat function. However, it requires some benchmark to determine those who actually qualify. It also carries with it the risk of creating a perpetual battlefield. Already, the Obama administration has indicated that a “Kill List” will be maintained for the foreseeable future. Even after combat operations in support of anti-terrorism, contingency operations cease.[7]

In short, the right to kill is a two part framework that involves the soldiers’ individual “contract,” AND authorization from a legitimate authority.

[1] (Walzer 2006) pp. 36-41

[2] (Aquinas n.d.), (Bouchet-Saulnier 2007) p. 43

[3] (Bouchet-Saulnier 2007) pp.43-46; (Lewis 2012) pp. 310-312

[4] (Bouchet-Saulnier 2007)

[5] Ibid p. 311 The interpretive guidance is not part of any ratified convention, and does not have the force of international law.

[6] Ibid

[7] (Miller, The Permanent War 2012)