Combatant’s Privilege Reconsidered

International law grants to legitimate combatants the right to kill enemy soldiers both in wars of aggression and defensive wars. A main argument in support of this “combatant’s privilege” is Michael Walzer’s doctrine of the “moral equality of soldiers.” The doctrine argues that soldiers fighting in wars of aggression and defensive wars have the same moral status because they both typically believe that justice is on their side, and their moral choices are equally severely restricted by the overwhelming coercive powers of the state, including propaganda, conscription, and harsh penalties for the refusal to fight. Recently, this doctrine has been convincingly refuted, at least with regard to aggressor soldiers who are part of professional volunteer armies in democratic societies. However, Walzer’s critics have not challenged combatant’s privilege, primarily for a variety of pragmatic reasons. This paper examines these reasons, finds them not decisive, and articulates a modest proposal for denying, under some conditions, combatant’s privilege to aggressor soldiers, making their very participation in a war of aggression a war crime. It is concluded that unrestricted combatant’s privilege is in tension with the aim of the United Nations “to save succeeding generations from the scourge of war.”