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This chapter examines David Wiggins’s version of sortal essentialism, which relies on the EPI thesis, that a thing’s principle of individuation is essential to it in order to derive the result that certain sortals (‘ultimate sortals’) are essential sortals. It argues that the attempt to defend sortal essentialism by appeal to EPI faces a dilemma: either the thesis is vacuous, and lends no support to sortal essentialism, or it is a substantial thesis, but one that we have no good reason to accept. It concludes that even if it is true that, for any given individual, there are some sorts or kinds to which it could not have belonged, there is insufficient reason to believe the sortal essentialist’s explanation that this is because there is some sortal kind to which it belongs essentially.

This chapter examines the principle of distinction in contemporary International Humanitarian Law (IHL). As a general rule, the principle of distinction permits direct attacks only against the armed forces of the parties to the conflict, while the peaceful civilian population must be spared and protected against the effects of the hostilities. This chapter first distinguishes and defines the notions of civilian, member of the armed forces and combatant under the law governing both in international and non-international armed conflict, clarifies when civilians can be regarded as directly participating in hostilities entailing loss of protection against direct attack, and also examines various aspects of the duty to avoid "collateral damage", which is inherent in the principle of distinction.

This introductory chapter considers the inconsistencies and ambiguities surrounding the principle of distinction—a juridical principle formally distinguishing between combatants and civilians. The principle of distinction is a peremptory obligation of international humanitarian law; nonetheless, at the same time as it serves as one of the foundations of contemporary law and politics, the principle of distinction, taken on its own terms, has proved to be remarkably frail. To elaborate on the issues surrounding the principle of distinction and aid in the book's discussion, the chapter introduces a series of discourses—gender, innocence, and civilization—that mark the history of the principle of distinction. It is this series of discourses—each of which is itself composed of a confluence of political, moral, and legal judgments—that conditions the appearance of the civilian and the combatant and invests the distinction with a seemingly indisputable gravity and authority.

This concluding chapter discusses the continuing challenges of interpreting and implementing the principle of distinction. In considering the principle, both its critics and advocates note that compliance with and the implementation of this principle are circumscribed by evaluations of military necessity and calculations of proportionality. Moreover, the evolution of technologies and different techniques of war may also mar compliance and implementation, or may render the distinction ambiguous in practice. In the midst of these and other dilemmas surrounding the topic, the chapter concedes that the series of discourses—gender, innocence, and civilization—that brace the principle of distinction may, paradoxically, undermine its utility. An analysis of this relationship not only points to the constitutive power of the series but also underscores the complex and contradictory ways in which compliance can be understood and defined within their parameters.

Should states be permitted to use drones to kill terrorists hiding in foreign territory even when these pose a heightened danger to civilians relative to other types of operations? This chapter presents an exchange of views on this question. It focuses on the principle of distinction, a central pillar of both the law of armed conflict and just war theory, and how it should apply to drone strikes. This chapter stresses that drones are new weapons which demand revised rules, and argues that the principle of distinction should permit their use even in some cases where they pose a higher threat to local civilians than alternatives. It then argues that this would involve a dangerous weakening of the principle of distinction, and that it is preferable that it apply to drones in traditional fashion, requiring states to employ other types of operations when they are less threatening to local civilians.

This chapter 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. The chapter argues that the changing nature of wars and militaries casts doubts on the necessity of killing all enemy combatants indiscriminately. The chapter proposes 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. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which, whenever feasible, an alternative of capture or disabling of the enemy would be preferred to killing.

Chapter 2 introduces, but does not resolve, the conundrum of what the idea of distinction is that is circulating in international practices and how it relates to the IHL targeting rule. The main point conveyed is that distinction in the conduct of hostilities sense is in play, but that it is being deployed in ways we might not expect. Actors routinely move the line to assert intra-civilian distinctions, and collapse IHL’s principle of distinction together with other values, ideas and principles to compose the ‘distinction vernacular’. The muddling of distinction is easier to observe in the training spaces than in South Sudan, as conversations about IHL are more explicit in the former. Trainees can be found struggling to locate a civilian–combatant binary in the conduct of hostilities sense, and they extend this fuzzy treatment to their categorization of humanitarian actors. The chapter also outlines the comprehensive ethos that guides contemporary international missions, explaining how the ‘working together’ mentality shapes international interventions. From the perspective of international humanitarian actors, international military and peacekeeping actors are encroaching upon them and blurring the lines. The discussion of the Intellectual realm examines the status of the main actors, canvasses civil-military guidance documents, and considers high-level pronouncements about distinction. Attention is drawn to slippage between a civilian–combatant distinction and other fault lines, as distinction’s haziness prevails at this normative level.

This chapter demonstrates that international humanitarian actors take it upon themselves to assert distinction, in contexts in which international actors are encouraged to demolish boundaries and work together. Empirical findings from South Sudan reveal that safeguarding distinction involves managing the perceptions of an amorphous onlooker: the ‘phantom local’. This imagined local audience—which comprises armed actors, authorities, and beneficiaries—ultimately decides who is who amongst international actors. In the civil–military training spaces, humanitarian actors again emphasize the role of perceptions, and here they also extol the importance of IHL. Across these global sites, power struggles ensue as other international actors contest the vision of distinction that humanitarians promulgate. The exploration of the Intellectual realm focuses squarely on the figure of the humanitarian actor in IHL, examining the historical evolution of this figure and its treatment in the First Additional Protocol (AP I). It is argued that IHL projects a Red Cross fantasy, such that protections for humanitarian actors are grounded in a very particular vision of ‘humanitarianness’. This leaves other humanitarians with status anxiety, yet their efforts to emulate this vision serve to further entrench the Red Cross actor’s paradigmatic status.

This chapter presents distinction as a performance and conveys the dynamism of everyday distinction practices. Distinction takes on an explicit visual life in the Kinetic realm: humanitarian actors deploy signs and symbols, and they carry themselves in deliberate ways to show they are distinct. Everything in these practices is a matter of degree and subtle gradation. Other international actors emerge here as potential sources of contamination, including actors who would be entitled to civilian protection in IHL. Humanitarian actors embark on dogged attempts to assert distinction from these other actors, but distinction is always already compromised. While the possible futility of their distinction project leads some humanitarian actors to rally behind distinction even more strongly, other humanitarians balance distinction with other pressing priorities. In the civil–military training spaces, international military and peacekeeping actors voice incredulity at the logic of humanitarian distinction practices. From the perspective of these other actors, humanitarians are behaving erratically and prevaricating. The Intellectual realm focuses on the civilian concept, locating a continuum of ‘civilianness’ in international law. The discussion examines qualities that have historically been associated with civilianness—such as harmlessness, innocence, and non-participation in fighting—and highlights the shifting relevance of an armed/unarmed marker. Engaging with the adjudication of crimes against humanity cases in the Hague, it is shown that even in international tribunals civilianness might be a matter of degree. The chapter closes by introducing three unfamiliar figures: the ‘civilian plus’, ‘mere civilian’, and ‘civilian minus’.

This chapter provides an overview of the monograph, outlining the structure of the discussion and introducing the key arguments that will be advanced. The principle of distinction, as a targeting rule in international humanitarian law (IHL), is introduced along with the concept of the civilian as it circulates in IHL. Three sets of international actors are presented—humanitarian actors, peacekeepers, and military actors—and the humanitarian actor is situated as the central character of the study. The boundaries between these actors are loosely sketched, so that they can be elucidated gradually over the course of the discussion as the empirical findings are revealed. The three central claims of the monograph are outlined as follows. First, it is argued that a wide range of unconventional actors, operating in unconventional places, produce IHL rules in everyday practice. Second, it is contended that distinction, not only as a grounded practice but also as a vaunted IHL rule, is perpetually disrupted. Third, the existence of a ‘civilian plus’ status in international practice is proposed. A brief overview of the study’s methodology is also provided, along with an introduction to the Kinetic, Pedagogical, and Intellectual realms.

This chapter examines the principles of distinction and proportionality, compensation for affected civilians, the use of nonlethal weapons, the globalization of detention, and the law of occupation. The counterinsurgency strategy frequently aligns with the underlying goals of the laws of war because strategic self-interest pushes counterinsurgents to operate in accordance with humanitarian law. In international humanitarian law, the most important principle is the principle of distinction. This holds that conflicting parties must distinguish between civilians and combatants. Attacks may only be directed against combatants. In other cases, the laws of war render necessary beneficial operations illegal. The occupation law prohibits political and social reform, but such reform may be indispensable to counterinsurgency. The use of nonlethal weapons, often illegal, would definitely save lives and assist counterinsurgency.

This chapter looks at how the context of war affects the ethics of torture and considers the role that just war theory and international humanitarian law should play in governing its use or prohibition. Just war theory supports the principle of distinction, which grants protected status to civilians and anyone else (including captured and injured combatants) who is “out of the fight.” The principle of distinction is crucial both for limiting the horrors of the conduct of war and for making it possible to end active conflict and achieve reconciliation between adversaries. This chapter argues that the absolute moral prohibition on torture in war can be defended by validating the reasonability and importance of the conventions of international law, rather than needing to argue in the other direction—from the immorality of torture to the force of international laws banning its use. It also argues against the sort of justifications given for torture by its apologists—particularly, the dehumanization of one’s enemies by their vilification as evil, and the use of abstract cases—such as the ticking bomb scenario—that depict them as possessing evil-genius superpowers.

The chapter starts with a synopsis of the concept of distinction and explains why it is foundational to any understanding of the concept of combatancy. It then provides an overview of the US approach to the concept of combatancy and surveys the changing position of that concept in international law. The chapter goes on to discuss the concept of combatancy in the courts and in Congress. Because the US executive branch either has not acknowledged or cannot follow this evolving concept of combatancy in the context of modern warfare, Congress must reauthorize and update the AUMF, expanding the concept of combatancy to include the issue of non-state actors, a recognition of partial compliance of combatants, and an incorporation of the ICRC Guidance on Direct Participation in Hostilities.

This chapter pursues the ‘civilian plus’, ‘mere civilian’, and ‘civilian minus’ across the three realms, exploring where the line is being drawn within the civilian category. Adopting parallel structures, the discussions in the Kinetic and Pedagogical realm first consider the humanitarian actor as a ‘civilian plus’ figure, and then as a ‘civilian minus’ figure. It is shown that in everyday practice, humanitarian actors strive to escape the vulnerability of the ‘mere civilian’ and to disperse any qualities of combatantness that might swirl around them. They root their claims to the ‘civilian plus’ in their important professional role and in the risk of harm it exposes them to; they also emphasize the expertise required to carry out humanitarian work. Other international actors detect a humanitarian superiority complex at play, sensing that humanitarian actors look down on them from a virtuous perch. Intriguingly, it is the very same professional role that could legitimate a claim to a special status that also impugns the civilianness of humanitarian actors—as when they are accused of ‘feeding the enemy’. The discussion in the Intellectual realm conveys that these intra-civilian distinctions are not disturbing an otherwise stable binary framework. Attention is drawn to IHL targeting rules that trouble a bright-line distinction. It is further shown that before the civilian was defined in AP I, the category was disaggregated for purposes of protection and access to services. Revisiting the Red Cross fantasy, it is proposed that IHL sets some humanitarian actors apart from other civilians.

This chapter explores the categories in use and the shifting fields of reference when international law was invoked by the different parties during and after the Israeli war on Gaza in December 2008. On one side, Israel insisted that all its actions were in keeping with international law; on the other, various parties, including human rights groups and lawyers’ groups, compiled a case for a war crimes investigation. These contestations reveal the proto-narrative character of the categories available in international law and the way they were differentially mapped in practice onto the lived field of activities and events. The same legal categories (such as the principle of distinction and the right to self-defense) were used in opposing ways, in line with distinct interpretive logics.

This chapter considers the relationship between the principle of distinction and the idea that combatants are “morally equal” on the battlefield. This relationship is of particular interest, as well as complexity, in so-called asymmetric warfare, namely warfare between traditional state actors and non-state actors such as ISIS or al-Qaeda. It argues that an essential concept for understanding the moral equality principle is that of role responsibility. The notion of role responsibility, where it applies, has the effect of isolating the rights and duties that pertain to the actor from other segments of morality and enables morality to be discontinuous across its various domains. The result is that two principles of right may conflict with one another across the various domains to which they apply. This explains how a combatant can be on the wrong side of a conflict and yet have the right to kill an opposing combatant in war. The idea is challenging to extend to asymmetric war.

This chapter continues the discussion of ius in bello, turning to the distinction between combatants and civilians. The targeting of noncombatants repudiates the distinction between war and peace, although in a different way than perfidy does. The distinction between combatants and civilians is required to make it possible for anyone to exit the condition of war; that possibility can only be realized if those who are not actively participating in a war are never acceptable targets. The same rationale explains why people engaged in civilian activities cannot be targeted even if they support an unjust war or their activities benefit the military. The chapter also explains how the prohibition generates the other familiar restrictions on the excessive use of force, including necessity, the prohibition of indiscriminate weapons, and proportionality.

This chapter considers the normative underpinnings of the present-day regulation of combatancy. It argues that a wholesale denial of combatant status to fighters in internationalized armed conflicts would be incongruous with the principles of distinction and equal application of the law. The chapter then considers specific objections against the extension of combatant status to non-state actors from the perspective of internationalized armed conflicts. It argues that although some of the objections carry certain weight in the context of traditional civil wars, their effect in internationalized armed conflicts is significantly weaker. The chapter thus shows that in principle, the availability of combatant status to fighters in internationalized armed conflicts is in accordance with the normative underpinnings of International Humanitarian Law.

This chapter introduces and clarifies Moral Distinction, the principle that killing civilians is worse than killing soldiers. It develops the conceptual apparatus deployed in subsequent chapters, then explains why Moral Distinction matters, focusing in particular on its connection to similar principles in international law. It explains why recent just war theory and political discourse have placed Moral Distinction at risk, then outlines the pluralist approach to defending it, and in particular the central contention that almost all civilians (as well as many soldiers) are not liable to be killed in war. Since killing innocent civilians is necessarily worse than killing liable soldiers, the real challenge is to show that killing innocent civilians is worse than killing innocent soldiers. Only a pluralist approach will do: each argument will have exceptions; only taken together will they provide civilians with robust protection in war.