Major Tony Pfaff
Shortly after the
disagree that the
In the past,
terrorists have primarily been regarded and pursued as criminals. While there
are certainly notable exceptions, prior to September 11 the war on terror was
fought mainly by law-enforcement agencies. Even after the attack on the USS
Cole, it was teams of FBI agents who were dispatched to
Since the terrorist attacks of September 11, many have argued that such a response is inadequate. Some, like Ralph Peters, argue that any concern over non-combatant casualties that constrains military action is best thought of as misguided “diplomatic table manners” and has no place in fighting terrorists. He goes so far as to argue that the intentional targeting of non-combatants in many cases is necessary to successfully wage the war against terror. Failure to do so, he argues, betrays a misunderstanding of the nature of the enemy as well as an allegiance to “outdated conventions.” 
These two approaches, which I will refer to as the “criminal” and “war” models respectively, represent two distinct practical as well as ethical ways of conceptualizing the use of force by the state. Each has evolved in view of a particular context and a particular threat, but both represent ways states use force to maintain civil order and prevent violations of their political sovereignty and territorial integrity. I do not wish to imply that these make a neat dichotomy, the criminal model most often applies when civil order is threatened, the war model when civil society itself is threatened.
The most salient difference between the two is the room they make for civilian casualties. In the criminal model, police are not permitted to engage in courses of action in which innocent civilians will knowingly be harmed, but soldiers are permitted to do this in war. In the former, the protection police owe civilians is nearly absolute, but in the latter, soldiers have greater permissions to put civilians at risk. Nor is this difference a matter of degree, but rather of kind. Police are obligated to use the least force possible; soldiers the most force permissible. This may seem to be a subtle difference, but when applied to the current war on terrorism, it yields a difficult ethical problem.
If terrorists are simply criminals, then
acting in such a way that knowingly, even if unintentionally, leads to civilian
deaths is morally impermissible. However, in the post-September 11 environment,
limiting our ability to respond to this threat in this fashion seems to
needlessly put the lives of our own innocent civilians at risk. Thus the
Political and technological developments of the late 20th and early 21st centuries have enabled terrorists to engage in what is variously known as 4th generation, or asymmetrical warfare. While exploring the full ethical implications of this new kind of warfare is beyond the scope of this paper, these developments have given us a new kind of threat that does not fall neatly into either the category of criminal or enemy. But by borrowing from both of these models, we will see that while pursuing terrorists under the criminal model is morally preferable, certain terrorists under certain conditions represent the kind of threat that permits pursuing them under the war model.
To fully explore the obligations, permissions, and prohibitions members of law enforcement and military organizations have towards non-combatants in the war on terror, we will first discuss the criminal and war models and spell out in some detail the moral considerations present in each and show how they differ. In discussing each model it will be necessary to show how the function each serves helps the state fulfill its moral obligations to its citizens and how this informs the moral obligations members of the police and military have to innocents and non-combatants. Then, in light of the new kind of threat certain terrorists represent we will see how combining these two models can give us a more complete and robust model for exploring the obligations, permissions, and prohibitions police and military have when states must use force against terrorists.
It is a nearly universally accepted moral principle that it is wrong to intentionally harm innocent people. However, states are obligated to protect their citizens from harm, and those vested with this responsibility sometimes find themselves in situations where they must risk violating the former principle in order to uphold the latter. Soldiers sometimes must attack enemy military targets located close to where civilians live. Police sometimes put bystanders’ lives at risk when they pursue criminals. The application of these principles is further complicated by the fact soldiers intentionally kill enemy soldiers many of whom are not guilty of any act of aggression and police sometimes pursue and use force against suspects who are innocent.
International law resolves some of this complexity by prohibiting soldiers from intentionally killing citizens of enemy states who are not directly involved in the fighting. They are immune from harm because they do not represent an immediate threat to soldiers. Because they do not represent a threat, their deaths are not necessary. Thus in the context of fighting wars, the law and morality of war typically distinguishes between non-combatants and combatants as opposed to innocent and guilty or civilians and soldiers. This is because many soldiers are innocent of any act of aggression and some civilians are guilty of it. This is also because some soldiers, such as those who have surrendered or are wounded and no longer capable of fighting, no longer represent a threat and are thus immune from harm. Further, some civilians like munitions factory workers at work who, because they are engaged in an activity that is logically inseparable from war-fighting, are subject to harm. 
Since police do not typically fight wars, it may seem odd to discuss non-combatant immunity in this context; but because they also deal with threats to the peace, similar notions apply. For police only those civilians who have somehow demonstrated themselves to be a violent threat may be killed. And even then, police must make reasonable attempts to apprehend them first. Thus, in the context of the pursuit of criminals we can make a distinction between 1) innocent civilians, who have not represented themselves to be a violent threat to any person or persons and are not subject to harm, 2) suspects, who may have committed a crime, but who must be given the opportunity to surrender first. In this latter category, police may only use deadly force after they have offered a chance to surrender and then only to prevent someone suspected of a violent crime from fleeing or to stop someone from committing a violent crime. Typically, police do not use deadly force against non-violent criminals.
Pursuing Criminals and Fighting Enemies:
Police and soldiers are obligated to take risks in order fulfill their respective functions. But since this often involves the use of deadly force, they sometimes put others at risk as well. Their functions, however, limit whom they may put at risk and the kinds of risks they may take. By enforcing laws, police maintain order; by fighting wars, soldiers establish it. But whether enforcing laws or fighting wars, the only morally appropriate use of deadly force is to establish or maintain a just peace. For the soldier this most often means establishing peace between the society he serves and other societies; for the police officer, this most often means detaining, and under certain circumstances killing, someone who represents an immediate threat to the peace the society currently enjoys.
Since the use of force represents to some degree an absence of peace, it makes no sense to use any more force than is necessary to maintain or establish it. This means police are obligated to use the least force possible so they do not disrupt the peace any more than necessary to restore it. Soldiers, on the other hand are permitted to use the most force possible, given the restrictions of the law and morality of war, because their aim is to establish a peace which does not currently exist. The following example taken from the LA riots in 1992 demonstrates the importance of this idea:
Police officers responded to a domestic dispute, accompanied by Marines. They had just gone up to the door when two shotgun birdshot rounds were fired through the door, hitting the officers. One yelled “cover me!” to the Marines, who then laid down a heavy base of fire…”
This example is instructive because it shows that even in the same situation there is a different understanding between police and members of the military as to how much force is morally permissible. Even though they had been shot at, the police did not feel that they or anyone else were in immediate danger. As a result, it would not be morally permissible to respond immediately with deadly force, but to take time to develop the situation and first ascertain if there were non-violent ways to resolve the issue.
As far as the Marines were concerned they were under fire and thus it would be morally appropriate to respond in kind. The different reactions may be accounted for by the different ways each perceives the threat. For the police, the threat is a criminal who must be apprehended in order to minimize the disruption to the peace the crime itself represents. Since the use of violence represents a further disruption of the peace, police are always looking to use the least force possible. But Marines are trained to defeat enemies, who must be killed if there is to be peace. They are always looking to use the most force permissible.
This is not to say that police are prohibited from taking some risks that might place civilian lives in danger. For example, police are permitted to engage in high-speed pursuits even though such pursuits can and have resulted in accidents in which innocent bystanders have been killed. The difference is police are not permitted to engage in such pursuits, or any other activity in which they know civilians will be killed or seriously injured. But, as we shall discuss later, there are many conditions under which such actions would be permissible for soldiers. Thus if it were only permissible to pursue terrorists as criminals, it would never be permissible to do so in a way that civilians will knowingly be harmed. 
Nor is this to say there are not limits to the risks soldiers may place on non-combatants. The killing soldiers do is justified by the fact their role is to defend innocents against aggression, thus fulfilling in part the moral obligation states have to protect their citizens from aggression. But if the defense of innocents is a moral imperative, then the intentional taking of innocent life must be morally prohibited. Thus while soldiers have the positive duty to protect their own civilians, they also have the negative moral duty not to harm intentionally civilians of other nations.
By virtue of accepting their role, soldiers obligate themselves to accept risks that non-combatants do not, regardless of the non-combatant’s nationality. However, this obligation is limited to some degree by the sometimes competing obligation to accomplish missions that are necessary for the soldier to protect the citizens of his state. If there were no such limits, then the ability of soldiers to accomplish their missions would be severely undermined as it would be possible for the enemy to use civilians as shields and render it impossible to prosecute the war in a moral fashion. This would render the positive duty to defend innocent life illogical and morally self-defeating. Thus, soldiers are not obligated to take so much risk that the mission will fail, nor are they obligated to take so much risk it is certain their unit will not be able to continue the war effort. 
Since the amount of risk soldiers are obligated to take is limited, it is then permissible for them to engage in courses of action in which they may unintentionally, but knowingly harm civilians. But this too has its limits. Judgments about what constitutes the kinds of risk that may lead to mission failure are notoriously difficult to make. Thus if our ethical obligations ended there, the potential for abuse would fatally undermine the entire concept of non-combatant immunity as even well meaning soldiers would be hard pressed to come up with reasons to take the safety of non-combatants into account.
But our ethical obligations do not end there, and even this permission has its limits and these limits are captured by the doctrine of double effect, one of the more restrictive features of the Just War Tradition. This doctrine was first formulated by St. Thomas Aquinas as a response to St. Augustine’s moral prohibition against self-defense and recognizes that in the pursuit of a moral good, like self-defense, there may be unintended, but foreseeable harms. It also recognizes that it is important not to let the moral harms one may commit undermine the moral good one is pursuing.
Thus, according to this doctrine, it is permissible to perform a good act that has bad consequences, if certain other conditions hold. Those conditions are: 1) the bad effect is proportional to the desired military objective 2) the bad effect is unintended, 3) the bad effect is not a direct means to the good effect and 4) soldiers are obligated to take actions to minimize the foreseeable bad effects resulting from any course of action, even if it means accepting an increased risk to soldiers.
As should be apparent from the above discussion, ethical obligations,
permissions, and prohibitions differ when one is fighting wars from when one is
pursuing criminals. However, this fact can be obscured in the public debate
surrounding the war on terror. In a recent article in Foreign Affairs, Michael Howard, a critic of
Criminals, Enemies, and Terrorists:
The criminal and war models provide members
of law enforcement organizations and the military moral frameworks within which
they may judge practical plans, practices, and methods for confronting
different kinds of threats. As noted before, in the past, terrorists have been
pursued as criminals, but in the wake of September 11, this changed. And this
has in fact been a major criticism of current
With these two models in mind, we can now turn our attention to determine to what extent this criticism is justified. Since the difference between the two models is accounted for by the kind of threat they developed in response to, it is necessary to determine what kind of threat the terrorists represent. To do that, it will be necessary to examine to what degree terrorists represent a greater threat than criminals and whether this justifies treating them as enemies.
There is a great deal of debate regarding what is the best definition of terrorism. The Federal Bureau of Investigation (FBI) defines terrorism as “the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives. If we accept this definition, then it is clear that terrorism is a crime, at least to the extent that such acts represent a violation of the laws of the states in which these acts take place. But for it to be permissible to engage in courses of action in which civilians may be harmed, such acts will have to be more than mere crimes, they will have to be “acts of war.” This is an important point because it does suggest that while the current response to the Al-Qaeda may be justifiable, it would be improper to consider it an appropriate response to all kinds of terrorism. Some terrorists are more like criminals and to pursue them as enemies does risk doing more moral harm than good.
reject that the current terrorist threat represents a new kind of security
concern. In a recent book on the war on terrorism, former career diplomat and
Hoover Fellow Charles Hill asks the reader to accept that the idea that this is
a new kind of conflict is a myth that must be dispelled. He points out
correctly that the
But what Hill
fails to observe is that there is a qualitative, not simply quantitative
difference between even the most destructive of these events, such as the
bombing of PanAm Flight 103 over Lockerbie
What changed was that technology has greatly increased
the effectiveness of weapons and the speed and distance over which forces can
move and communicate. Additionally, globalization has made many nations of the
world vulnerable in ways they had not been before. More powerful weapons,
better global communication systems, and increased opportunities to divert
non-weapon technologies to destructive ends has dramatically increased the
ability of small groups to achieve their goals, regardless of the political
support they may have. The ability to leverage these developments to
wage war makes the threat terrorists can represent asymmetric to their
size or power base. By waging this kind
of asymmetric warfare, terrorist can do more than simply instill fear in the
civilian population, they can also directly attack and destroy the institutions
that serve to administer and defend the
Thus, while terrorists certainly are criminals and while much of their activity, depending on the group, is best regarded as criminal, their ability to wage asymmetric warfare suggests that some may be more appropriately regarded as enemies given the kind of threat they represent. Before, the power to wage war on a state rested solely in the hands of other states. Now it can also rest in the hands of a few dozen highly motivated people with cell phones and access to the Internet. More than terrorizing civilians, this new category of threat is characterized by an ability and willingness to violate the political sovereignty and territorial integrity of sovereign nations in order to achieve their political ends. Their capabilities distinguish them from mere criminals; but their methods do not. This makes resolving the moral tension created by treating criminals as enemies difficult and complex.
In view of these changes, the criminal and war models are inadequate to fully account for the moral obligations, permissions, and prohibitions law enforcement officials and members of the military have to innocents and non-combatants in the conduct of the war on terror. They are inadequate because the threats they are designed to respond to are not the kind of threat represented by the terrorists. But in determining our moral obligations it will not be necessary to develop new concepts, as terrorists are both criminals and enemies. Thus in the following section I will attempt to draw on the resources offered by both models to develop a third category of threat and offer a model to deal with that threat.
Pursuing Enemies: The War on Terrorism
In response to the seriousness of the threat the Al Qaeda terrorists represent some, like Peters, argue that even normal moral restraints should be ignored in order to pursue the terrorists. While this seems extreme, it is reasonable in light of the past permissions and prohibitions on the pursuit of terrorists, to question past prohibitions on harming non-combatants.
Many other critics of the
Howard likens the current conflict with the Al-Qaeda to conflicts the
British fought to protect their interests in
who struck the
If the criminal model
were the appropriate model to apply, then it would never be permissible to
either attack a sovereign state or kill, even unintentionally, the innocent
citizens of that state. Criminals may only be pursued within the framework of
law. As Noam Chomsky, another critic of US efforts, points out, “When IRA bombs
were set off in
But Chomsky’s objection misses the point. The Al-Qaeda terrorists do not only attempt to achieve political goals by means of instilling terror in civilian populations. They have also demonstrated the capability and willingness to destroy the institutions that, to use Howard’s words, preserve the normal tenor of civilian life and which are the means by which a nation exercises its sovereignty and preserves its territorial integrity. Whether or not they actually achieve this goal is irrelevant; the fact that it is their goal and that they have the capability to do so is what makes them enemies.
This also entails that it may not be permissible to pursue every terrorist group as though it were an enemy. To warrant a response under the war model, capability and intent—as evidenced by actual acts of terror—to violate the political sovereignty and territorial integrity of a particular nation are both necessary and sufficient conditions. To the extent that a particular terrorist group does not have one or the other of these, it would not be permissible to pursue them under any feature of the war model. The problem of course, is that the interconnectedness of the world today makes it difficult to determine when this is the case.
Further, I am not arguing that
But terrorists operate outside the borders of the
However, this permission is severely restricted. It
would be self-defeating to subject populations in states where terrorists
operate without sanction to harm since that could compel the states to which
those populations belong to enter a just war against the
For this reason, it will always be
preferable to pursue terrorists under the criminal model, since this represents
the least disruption of the peace and the least risk to non-combatants. But
this restriction will have limits. Pursuing terrorists under the criminal model
may represent the least risk to foreign non-combatants, but to the extent this
restriction impedes victory it represents the most threat to friendly
non-combatants. Some states may not cooperate with terrorists, but they also
may not cooperate with efforts to prevent terrorists from carrying out attacks.
This can make it difficult to prevent terrorists from conducting future
operations. While it is beyond the scope of this paper to explore fully the jus
ad bellum implications of the war on terror, 
it is important to recall in war that the need to minimize risk to non-combatants
is limited by the need to defeat the enemy. Thus in places where cooperation
does not exist, as in Taliban controlled
Thus in this new category of threat, states may engage terrorists in a way in they will knowingly though unintentionally harm civilians; but only when there is no possibility of pursuing them as criminals. We turn our attention to applying this model to the current conflict.
As the Los Angeles Times article points out, “some charge that obsessive attention to safeguarding civilians has undermined military effectiveness, fueled inter-service rivalries and hurt morale. Worse, these officials say, it has increased the likelihood of Al Qaeda chieftans escaping because of its pervasive influence on US strategy.” While this concern is legitimate, the fact that military leaders permitted fear of civilian casualties to so adversely affect morale as well as operations suggest there is a great deal of confusion over what is morally obligated. Members of the military must take great care to minimize risk and harm to non-combatants, even if it means taking additional risks. But those risks are mitigated by the need to accomplish the mission, which in turn is mitigated by the importance of the mission to the war effort. It is wrong to destroy a whole village to kill one leader, especially if by doing so one is not appreciably closer to ending the war. But one is permitted to destroy a command center or a training camp, even if it is located in a village. To the extent the terrorists and their supporters could have located that command center away from civilian populations, much of the fault of the civilian deaths lies with them, not with the attacking forces.
But this is where means and ends both matter. When applying the doctrine
of double effect, what is permissible as collateral damage does in an important
way depend on the kind of weapons available. If there is a way to kill
terrorists and destroy their facilities without killing non-combatants,
military leaders are obligated to take it. This point is not as obvious,
however, as it sounds. As Michael Schrage points out in the
While this is an interesting and legitimate concern, the doctrine of double effect allows combatants to find a way to balance their moral obligations with the need to accomplish their missions. Further, it allows political and military leaders to clearly delineate reasonable from unreasonable expectations by separating acts that intentionally put non-combatants at risk, which the Al Qaeda terrorists do, and putting them at risk as an unintentional, but necessary by-product of conducting legitimate military operations.
The doctrine of double effect first requires that the harm done is
proportional to the good achieved. This means first that the destruction done
to civilian lives and property must be less than the good done by destroying
the military target. It may seem on the surface that it is this provision that
potential adversaries may use to limit US and Allied courses of action. By
hiding among civilians, key leaders can avoid harm and thus continue their own
operations since even with precision weapons some non-combatants will be
harmed. This poses a serious problem in the context of asymmetric warfare where
people are more important than equipment. Cell phones and other means of
communication can be easily replaced. Conventional explosives, and even some
kinds of weapons of mass destruction are neither hard to obtain nor to conceal.
What is more difficult to replace is people who have the willingness and
capability to use such things in order to conduct terrorist operations. Because
of this, commentators like Peters argue that while non-combatant deaths are
Unfortunately, such a commitment to the kind of total war Peters
recommends not only violates the contractual obligation members of law
enforcement and the military have by virtue of treaties the
While simply relying on proportionality would be morally prohibited and to pursue this as a general policy would represent a violation of the law and morality of war, one must not fall into the trap of calculating it in terms of non-combatant lives lost versus enemy lives taken. What matters is how much closer any particular operation will bring one to victory. Thus, if certain key leaders are the terrorist’s center of gravity, then military leaders may need to consider this when determining how best to pursue them. In this kind of asymmetric warfare, it does not matter that one may kill two, four, ten, or a hundred non-combatants in order to kill one terrorist. What matters in this context is how much harm the targeted terrorists could do relative to the amount of collateral damage caused in their pursuit. Given that in this kind of war a few people can cause a disproportionate amount of harm, the permissions associated with non-combatant casualties are going to be greater than in more conventional conflicts.
But this does not mean such permissions will be unlimited. Some terrorists and terrorist cells are more dangerous or capable than others and US forces need to take this into consideration when making judgments of proportionality. If the terrorist target in question is relatively inconsequential, then proportionality requires US forces to forego engaging them. It is never right to kill non-combatants in order to achieve inconsequential goals.
Second, the deaths of non-combatants must be unintentional. Peters argues
Third, it follows that one may not use the deaths of non-combatants as means to any good effect. If Peter’s exhortation were pursued as a general policy, then it would also be preferable to target terrorists when they were with their families as opposed to when they were not since this would maximize the cost of becoming a terrorist. But if US and allied forces could chose whether to engage a terrorist by himself or when he was with family, friends, and neighbors, but waited until he was with his family or other non-combatants to engage him, then they have committed a moral wrong. If however, they pursue a general policy to engage terrorists whenever they present themselves as targets, regardless of whom they are surrounded by, keeping proportionality in mind, then they have not.
Fourth, US and allied forces must take extra risks, if necessary, to minimize the harm to non-combatants. Not only does this mean, as noted above, that the most precise weapons available must be used, it also means combatants are required to take extra risks in order to maximize this precision. For a combatant, this may mean flying lower, or maneuvering closer in order to more clearly separate combatants from non-combatants. This means that if there were any way to eliminate a terrorist without harming his family, combatants are required to take it. This also means that political and military leaders need to consider the moral limits of risk when deciding how to organize and employ their forces. If infantry can provide more precision than stand off weapons such as artillery or close air support, then leaders must consider their use. Further, this means supplying soldiers and airmen with the most precise tools available to accomplish the mission. One cannot wage modern war without harming civilians, but as long as combatant forces accept the greatest risk permissible to avoid non-combatant casualties, the moral fault of those deaths lie with the aggressor.
Some may argue that placing such constraints on fighting such a deadly
enemy needlessly and irresponsibly restrains the US and its allies from
pursuing courses of action that allow them to effectively to protect their own
populations. But, this is to ignore what the doctrine of double effect does
permit. It does follow from this doctrine that the
In practice following this doctrine is about making choices. It means choosing to engage terrorists where the fewest non-combatants will be harmed, even if choosing otherwise may bring some military advantage. It means choosing the least harmful means to killing the terrorists, though more harmful means may be less risky or otherwise more preferable. Finally, it means that even though certain terrorists are able to take advantage of the opportunities to conceal their activities within civil society, it means they should be pursued to the extent possible as criminals since this involves doing the least harm possible. But because of the nature of the threat these terrorists represent, when it is not possible to pursue them as criminals, it is permissible to pursue them as enemies and do the most harm permissible.
However, the threat the terrorists represent is in
what they can do, not what they have done. The events of September 11
demonstrated that the Al-Qaeda terrorists have the capability and intent to
wage war on the
Furthermore, US combatants need to take care in understanding why they should avoid causing non-combatant casualties. When members of the military and law enforcement are motivated by political rather than moral concern, they risk the kind of confusion that results in the escape of Al Qaeda operatives as well as the needless death of innocent civilians.
The Al Qaeda terrorists are criminals. But they are also enemies. Since it is always preferable to do less harm than more, it will always be preferable to pursue them under the criminal model since it represents the least harm to non-combatants. But because they are enemies, when this is not possible to pursue them as criminals it is permissible to conduct operations in such a way that civilians will knowingly, though not intentionally be harmed, given the restrictions outline above.
There are of course unresolved issues. What I have not adequately addressed is the permissions associated with violating the political sovereignty and territorial integrity of other states in order to pursue the terrorists. To the extent a state supports terrorism it may make moral sense to do so, but to the extent terrorists operate in states that are willing but not fully capable of eliminating them discerning what is permitted is more complicated. Furthermore, what I have not adequately discussed is how to treat detained terrorists. While it is permissible to fight them in some circumstances under the war model, it is still the case they are criminals. Thus to what extent they enjoy the rights of a criminal or the rights of a prisoner of war is another complex question that needs addressing.
In the course of responding to the terrorists’ act of aggression it will
be important that US leaders resolve the ethical issues raised by this new kind
of conflict as well as the practical ones. This does not necessarily mean that
 William Arkin, Fear of
Civilian Deaths May Have Undermined Effort,
 Michael Howard, “What’s in a Name,” Foreign Affairs, January/February 2002, p. 8-13.
 Ralph Peters, “Civilian Casualties: No Apology Needed,” The Wall Street Journal,
 1923 Hague Rules of Aerial Warfare, Article 22, 1949 Geneva Convention IV, Article 3.
 Michael Walzer, Just and
 John Kleinig, The Ethics of
 Walzer, p. 121. It is important to note that in both contexts what justifies the use of force is to correct or prevent an injustice. It is assumed that the state of affairs that led to the injustice, though it may be without violence, is unstable. Thus if the use of force only returns the state of affairs to its original state it has served no moral purpose. Therefore, when considering whether to permit soldiers or police to resort to force, one must consider how this will result in a more stable peace where injustices are less likely to occur.
 This is not to say that soldiers may not find themselves in
situations where it is morally appropriate to behave more like police and vice
versa. See Tony Pfaff, Peacekeeping and
the Just War Tradition,
 See Pfaff, p. 17-18.
 James D. Delk, Fires &
 Kleinig, pp. 118-122. See also Pfaff, 13-20.
 James M. Dubik, “Human Rights, Command Responsibility, and Walzer’s Just War Theory,” Philosophy and Public Affairs 11, no. 4 (1982): 355.
 This has been, in fact, a feature of the Taliban strategy against
 Paul Christopher, The Ethics
of War and Peace: An Introduction to Legal and Moral Issues, 2nd
 Ibid., p. 52
 Howard, p. 8.
Code of Federal Regulations, 28 CFR Secion 0.85.
 Charles Hill, “A Herculean Task: The Myth and Reality of Arab Terrorism,” in The Age of Terror, Strobe Talbott and Nayan Chanda, eds, New York, Basic Books, 2001, p. 83-85.
 Thomas Homer-Dixon, “The Rise of Complex Terrorism,” Foreign Policy, January/February 2002, p. 54
 For excellent resources regarding 4th Generation Warfare, see http://www.d-n-i.net/second_level/fourth_generation_warfare.htm
 Howard, p. 9
 It is worthwhile also to ask to what extent may the
 Ibid., p. 8.
 Noam Chomsky, 9-11New
 One possible counter-example may be if terrorists were about to detonate a weapon of mass destruction and one could only prevent this by bombing the neighborhood where the terrorists placed the weapon. In this case, the threat represented by the weapon may justify such action. See Pfaff, p. 16-17.
 It is beyond the scope of this paper to fully explore the jus ad bellum implications of the war on terror, though such implications are important and complex. To underscore this complexity, where traditional just war theory only recognizes two kinds of states, states which commit acts of aggression and states which are victims of aggression, the war on terror must recognize at least five: 1) states which are victims of terrorist aggression 2) states which sponsor terrorist attacks, 3) states which do not sponsor terrorist attacks, can prevent terrorist operations within their borders but do not 4) states which do not sponsor terrorist attacks, but cannot prevent terrorists operations within their borders, and cooperate fully with victim states in combating terrorists and 5) states which do not sponsor terrorists, cannot prevent terrorist operations within their borders, but who do not cooperate with victim states.
 There is a great deal of debate regarding the degree to which forces are responsible for non-combatant deaths when the enemy intentionally hides in and among them. It is plausible to argue that to the extent the enemy does this in order to take advantage of either the reluctance to kill non-combatants or the political benefit derived from these deaths it is they who bear the responsibility for these non-combatant deaths. While I think this argument is to some degree sound, it must not be taken too far. Otherwise the concept of non-combatant immunity would be completely undermined. How far one may or may not take this notion of responsibility is an interesting and complex question and it is beyond the scope of this paper to explore it in detail.
 Michael Schrage, “Too Smart For Our Own Good,”
 FM 27-10 The Law of Land Warfare, p. 6-7.