The Legal Status of Combatants as a Moral Compromise

Abstract The laws of war are moral compromises. Compromises are not ideal, yet they are sometimes the best that can be achieved. Most debate on the moral status of combatants focuses on ideal individual morality, but the morality of the laws of war is a distinct domain. Understanding the laws of war as compromises helps us make this distinction clearly. Moreover, it provides tools to assess existing theories of the morality of the laws of war. By developing an ethics of compromise and applying it to this debate, I demonstrate that granting all combatants an equal legal right to kill, irrespective of the justness of their war, is a morally excessive and, thus, illegitimate compromise. Given the conditions of a plural community of sovereign states, the only legitimate compromise is an equal immunity from prosecution for all combatants who comply with the other rules of international humanitarian law.