Harvard law scholar Alan Dershowitz believes that the civilian immunity norm should be revised. Instead of requiring weapons-bearers to distinguish between civilians and combatants, Dershowitz believes, treaty law should reflect "degrees of civilianality":
"You can rank people on a scale of one to 10, one being an infant baby, 10 being a grown man with a shoulder rocket about to fire. In between, there are those people who allow their homes to be used for rocket launches or storage, imams who encourage suicide bombing, people who make the [explosive] belts."Dershowitz, who is most famous for advocating "torture warrants", is peddling his idea in Israel now, but has been making this case at least since the 2006 Israel-Lebanon war. The knee-jerk reaction is to see this as apologism for the murder of civilians, but Dershowitz' argument has some ethical merit:
"There is a vast difference — both moral and legal — between a 2-year-old who is killed by an enemy rocket and a 30-year-old civilian who has allowed his house to be used to store Katyusha rockets. Both are technically civilians, but the former is far more innocent than the latter."But Dershowitz misreads the civilian immunity rule. It's not actually about protecting the morally innocent. If it were, civilian policymakers - the guiltiest of all in wars - would be fair game, and conscripts, many of whom are forced into the fight, would be "innocent." But the civilian/combatant distinction is not about innocence, it's about who poses an immediate military threat.
Civilians who support their troops don't count. But bin Laden would love it if that rule were changed. Then he could rightly claim that patriotic Americans are legitimate targets.
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