Gabriella Blum, The Dispensable Lives of Soldiers, 2 J. Legal Analysis 69 (2010).
Abstract: Why are all soldiers fair game in war? This paper challenges the status-based distinction of the laws of war, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. I argue that the changing nature of wars and militaries casts doubts on the necessity of killing all enemy combatants indiscriminately. I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible. I discuss the practical and normative implications of adopting these amendments, suggesting possible legal strategies of bringing them about.