Lawful murder : unnecessary killing in the law of war
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Canadian journal of law and jurisprudence, Vol. 25, no. 2, 2012, p. 417-446
Samuel G. Walker
An unrestrained right to kill might, in fact, be justified. The first and historically most important justification is grounded in a view of the individual at war as no human at all, but an agent of the state, a disposable molecule of a greater being. The author attempts to trace that idea through history, concluding that IHL is needlessly shackled to it despite the modem consensus that there is a human right to life that ought to be respected at all times. A second normative theory justifying unnecessary killing is the idea that soldiers are 'guilty' and, therefore, deserve what befalls them in war which the author finds unconvincing. The third strand of thought that has justified the unnecessary death of combatants is pragmatism. This argument in effect begs the question by countering that there is no such thing as the 'unnecessary' death of a combatant in war-any rules outlawing such killing would be utopian and impractical. Any prohibition against gratuitous violence, it is said, would be ignored or, worse, undermine respect for the law of war as a whole. This proposition is much more persuasive, but ultimately flawed. Finding that the law's permissive approach to unnecessary killing cannot be justified, the author proposes a reform to the law of war that would incorporate the principle of necessity into rules governing the use of force against combatants.