Volume 78, Issue 4, Fall 2004
Christopher H. Toner
Just War and Graduated Discrimination
Th is paper investigates the question of legitimate targets in war and the traditional jus in bello principle of discrimination, which is generally interpreted to mean that a bright line must be drawn between combatants and noncombatants, and that only the former may be attacked directly.
Michael Walzer and John Rawls have proposed a “supreme emergency exemption” to this principle, which permits the targeting of innocent people in emergencies such as that of Britain in late 1940. Rejecting this, the paper offers as an alternative a principle
of “graduated discrimination.” This principle distinguishes three classes: innocents, combatants, and noncombatant belligerents (noncombatants are belligerent if they contribute directly to the enemy’s war effort). It holds that the bright line must still be drawn, but between innocents and belligerents, and that, among the latter, noncombatants may be attacked in severe conditions—even, in supreme emergencies, if their belligerent role is simply providing the regime with a popular mandate.