Combatants, Consent, and Contracts

Abstract

Abstract Chapter 6 argues that the risks that combatants will typically bear or incur in protecting heritage exceed the risks that a person can ordinarily be required to incur to that end. This means that unless combatants have consented to bear or incur risks for the sake of heritage, it is impermissible to order them to incur more than low risks of serious harm to themselves to rescue heritage from some other threats. It is also impermissible to order them to incur moderate risks of serious harm to themselves to refrain from damaging heritage. The chapter argues that the majority of currently serving combatants have not consented to bear or incur the risks of combat quite generally and, therefore, have not consented to bear or incur risks for the sake of heritage. Moreover, combatants are often misled about the risks of heritage protection. Taking consent seriously poses a significant moral obstacle to implementing and enforcing the Hague Convention, along with any other law or policy that requires combatants to incur risks for the sake of protecting heritage. However, unlike with civilians, there are plausible routes to obtaining consent from combatants to incur what would otherwise be supererogatory risks. Most obviously, states could improve their recruiting practices to this end. If combatants consent to incurring increased risks for the sake of heritage, then it can be permissible to order them to do so.