Abstract

According to some, the combatant-noncombatant distinction has lost its relevance in today’s world. I examine two arguments to this effect. The first states that the distinction has become irrelevant when it categorizes children as combatants. I reply that the distinction has nothing to do with innocence or guilt, but with the degree to which a violent group poses a threat to others, even when it does so legitimately. The second argues that every civilian can be construed as a kind of combatant, thus obliterating the distinction. My answer notes an error: states are representatives of citizens, not the other way around.My position in this paper is that individuals take on legitimate combatancy as a function of membership in an organization with legitimate combatancy. This paper attempts to construct a concept of the fighting organization that will allow us to determine the legitimate combatancy of such organizations. The three combatancy criteria I offer are military command structure, observance of the war convention, and representativeness. The first is a requirement for legitimate combatancy because it facilitates the prevention of ius in bello violations of the war convention and can enable the transition from war to diplomacy. My second criterion, the observance of the war convention, too, must be retained as a condition for legitimate combatancy: targeting noncombatants as a means of fighting the war certainly disqualifies organizations from potential POW status, and other ius in bello infractions might, as well. My third condition, representativeness, requires that fighters serve as moral proxies for a geographically contiguous, politically viable people in order to retain legitimate combatancy. If a fighting organization does not represent such a people, then it is a group of criminals rather than soldiers