The basis for this distinction, it is alleged, hinges upon a recognition of the moral importance of intent as set forth in the Doctrine of Double Effect (DDE).Terrorists are acting immorally and are morally culpable and liable for their actions because they intend the noncombatant deaths in their attacks. They are committing murder. Those who respond to terrorism (responders), however, claim only to be targeting the terrorists, or the regimes that support terrorism, and any noncombatant deaths that occur, though foreseen, are, it is alleged, the unfortunate, unintended, by-product of a "moral act" of combating terrorism. Such killing, under a DDE interpretation, is not murder but collateral damage.² Consequently, DDE theorists conclude, responders are acting morally and are non liable and non culpable for the noncombatants they kill.

In this essay I will utilize a rights-based perspective and argue that to kill noncombatants in a terrorist attack or during what I will term a "collaterally violent" response to such an attack is morally equivalent, that both are morally wrong, and neither are acts of war, but murder. In doing so, I will distinguish collateral violence from accidental killing and from the killing of noncombatants that may occur despite the implementation of reasonable precautions. Finally, I will identify what I contend to be a valid application of the DDE to acts of war.

Further, the use of violence, deadly force, and war, may be, all things being equal, a justifiable Defensive Response Alternative (DRA) in situations of serious rights violation, such as in aggression. The moral justification for such a response, in my view, hinges upon the immorality and impermissibility of the aggressor’s violating a victim’s rights and failing to fulfill his obligation to respect such rights. That is, aggression warrants the sanction of override or forfeiture of the aggressor’s right to life and a liability to be harmed and/or killed, all things being equal, in self, other, or national defense.⁵ Such sanctions are warranted despite whether the aggressor is acting knowingly and with intent, or in ignorance, under duress, or unintentionally. That is, the use of violence, deadly force, and war may be a justifiable defensive response, all things being equal, to what has been termed in the literature as an "innocent aggressor."⁶

An important functional distinction between the categories of criteria has gone relatively unnoticed in the traditional interpretation of the conventions of war. It is my contention that while compliance or noncompliance to the jus ad bellum criteria constitutes a judgment of value, i.e., an evaluation of a war’s justness or unjustness, the jus in bello criterion of discrimination provides an evaluation not of value per se but of classification, what I will term "war status." That is, a use of violence and/or deadly force that violates a jus ad bellum criterion but which discriminates and affords immunity to noncombatants - - the jus in bello criterion is satisfied - - is unjust, but may be war none the less. No one jus ad bellum criterion is necessary for war status.¹⁰ Michael Walzer, in his important work, Just and Unjust Wars, recognizes such a possibility - - an unjust war fought justly.¹¹ Since noncombatants, however, are neither directly nor indirectly involved in the prosecution of the war or of the aggression, they have done nothing to warrant being warred against. Consequently, contra Walzer, the use of violence and/or deadly force in which noncombatants are not discriminated and afforded immunity - - the jus in bello criterion is not satisfied - - even if for a just cause, initiated by a recognized authority, etc., is not war but homicide and slaughter. Such crimes against humanity¹² to further some goal or objective whether political, religious or social are the very characteristic foundational to terrorism.¹³ Wars, even unjust wars, discriminate and afford immunity to noncombatants. Terrorism, unlike war, knowingly harms and kills noncombatants. The jus in bello criterion of discriminating and affording of immunity to noncombatants, therefore, is both a necessary criterion of war and, the violation of which, is a key characteristic of terrorism. That is, the Criterion of Discrimination differentiates war from terrorism and killing in war from murder.¹⁴ If the acts of murder and crimes against humanity are the isolated acts of a deranged individual(s) during a conflict that would otherwise satisfy Just War criteria, war status may not be affected. However, if such acts are not an aberration but a policy or strategy for conducting the hostilities - - achieving victory - - war status is not warranted or may be withdrawn in such cases.¹⁵ While there may be unjust wars fought justly, it is not the case that there are just wars fought unjustly.

Since the taking of any human life is serious and morally regrettable, an act of war, to be morally permissible, must have both a valid moral reason permitting its occurrence - - it must satisfy the jus ad bellum criteria - - and be prosecuted morally - - it must satisfy the jus in bello criteria. These criteria constitute justification, not merely explanation, and establish the act as either moral or morally neutral. Morality, then, even in instances of conflicting principles or values, is never held in abeyance and acting immorally is never necessary or permissible in war or elsewhere, i.e., there are no necessary evils. Further, and this is crucial, a morally permissible act, since justified, never incurs liability nor culpability.

The DDE, then, "redefines" the scope of the absolute prohibition’s application. By focusing upon the moral significance of intention and its relevance to moral agency and responsibility, it morally distinguishes killing as an unintended, secondary effect - - collateral damage - - from murder, claiming only the latter as absolutely prohibited. Consequently, the absolute prohibition is preserved and, if intention is withheld, an act of killing noncombatants may be permissible. Herein, then, lies the alleged critical moral distinction between the acts of the terrorist and those who respond to terrorism, between terrorism and collateral damage, and between murder and the unintentional killing of noncombatants. Terrorists intend to kill noncombatants, responders intend only to kill terrorists.

Enlightened moral theorists have recognized the DDE’s potential for misuse and have enhanced its criteria to include not only intention, but proportionality and what I will term "non instrumentality" as well. The following is typical of such an enhanced formulation:

While it would be preferable, of course, to utilize alternative means to neutralize the terrorists (e.g., capturing them individually, killing them when noncombatants are not endangered, etc.), must this fortuitous opportunity to "decapitate" the terrorist leadership, to incapacitate the terrorist network’s infrastructure, and save untold thousands of future victims be squandered? Perhaps not if this conflict between military necessity and the dictates of morality - - the COD - - may be resolvable through the application of the DDE.¹⁸ In Terrorist Conference, the act of bombing a gathering of known terrorists and their leaders is "in itself from its very object" a moral act of war (DDE criterion 1). Captain John’s intent, should he bomb the conference, is to end terrorism and save the lives of thousands of future victims (DDE criterion 2). These goals will be accomplished by the moral act of bombing the terrorist conference - - killing the terrorists - - and not by the deaths of the Montagnians (DDE criterion 3). Ending terrorism and preventing the deaths of future victims is a proportionately grave reason for permitting the evil effect - - the Montagnian deaths - - to occur (DDE criterion 4). Captain John will exercise "due care" and accept greater risk to avoid noncombatant deaths.¹⁹ Consequently, one may argue, with the DDE criteria satisfied and lacking a militarily effective alternative, it is morally permissible for Captain John to complete his mission.

In morally evaluating the Montagnian response, two factors are relevant. First, to sacrifice oneself for a noble cause or for the well-being of others, though admirable, is supererogatory and not morally required. Second, despite how another individual (Captain John) elects to resolve a moral dilemma, the Montagnians maintain their rights and claims against others unless they consent to sacrifice themselves or act to warrant forfeiture or loss. Consequently, in bombing the Conference, Captain John violates the rights of the Montagnians and fails to fulfill his obligation to respect such rights. What is irrelevant in TCVP is whether Captain John has agency, whether the threat to the Montagnians is directly intended or unintended, and whether the Montagnian deaths are the primary or secondary effect of the act of bombing the terrorist conference. In other words, what is irrelevant is the application of the DDE.

Further, in TCVP, since their lives are in jeopardy should Captain John bomb the conference, the Montagnians maintain their right to respond defensively. Consequently, it is morally permissible for them to kill Captain John, all things being equal, in self-defense. Further, in a scenario in which the Montagnians are unarmed, it is, perhaps, also justifiable for a morally sensitive third party, perhaps the concerned citizens of a neighboring city, to fire their air defense weapons to prevent Captain John from killing the Montagnians - - an act of humanitarian intervention. It is not the case, by the way, as a consequence of now being threatened by a Montagnian defensive response, that Captain John may target them claiming self-defense.

The fact that the Montagnians and, perhaps, others, may justifiably - - have the privilege to - - kill Captain John in self defense is morally significant. It indicates that his right to life and claim against others has been forfeited or overridden. Clearly, Captain John’s liability is a consequence of his bombing (or threatening to bomb) the terrorist conference and killing (or threatening to kill) the Montagnians. Since, as implied by the Moral Liability Principle, acting morally and permissibly ought never warrant such sanctions, i.e., a forfeiture of rights, loss of claim, and being the victim of the justifiable use of violence/deadly force in self/other defense, the Montagnian privilege to kill Captain John indicates the failure of the DDE to do the moral work alleged, that is, to render the bombing of the terrorist conference morally permissible.

What is clear in Terrorist Conference, or at least should be clear, to all moral agents including Captain John, is that Montagnian deaths in such an attack are as probable an occurrence as are the deaths of the terrorists. Consequently, Captain John does not merely foresee the possibility that, despite reasonable preventive precautions, sometimes things go awry and noncombatants will be killed. Captain John kills the Montagnians knowingly and with free will and consent in order to achieve the goal or objective of ending terrorism.

In cases such as Terrorist Conference, therefore, killing noncombatants is not accidental, but what I will term an "act of collateral violence."²¹ That is, an act, motivated by military necessity, in which noncombatants are harmed or killed, not with direct intention nor as the primary goal or purpose of the act, but, nevertheless, knowingly and with as high a degree of probability as is the harming or killing of the combatants. Since Captain John has good reason to expect that Montagnian deaths will occur from causes under his control, that is, they are as probable an occurrence as are the deaths of the terrorists, the fact that Captain John has directed his intent toward killing only the terrorists does not absolve him of causal and moral responsibility. Morality requires more than merely a proclamation of good intent.

The refutation of the DDE resolution as it applies to acts of collateral violence makes clear that the alleged distinction between terrorism and a collaterally violent response to terrorism is misguided and merely a pretense or rationalization for retaliation and revenge. Both acts knowingly kill noncombatants to achieve some goal or objective. Both terrorists and responders violate their victim’s right to life and fail to fulfill their obligation to respect such rights. Both are morally liable and suffer a forfeiture or override of their rights or immunity and being the object of the justifiable use of violence and deadly force in self or other defense. Both are morally culpable and subject to moral blame, condemnation, retribution, and punishment after the fact. Consequently, there is no moral difference between acts of terrorism and of collateral violence. They are morally equivalent. Neither are acts of war but of murder. Neither the terrorists nor the responders in such cases are combatants but brigands and murderers.

Although the pilots may, in both cases (a) and (b), foresee the possibility, however remote, that they may kill noncombatants in their attacks, given the remoteness of the bridge and its hitherto exclusive terrorist use in case (a), the very limited civilian use and the reasonable precautions implemented in case (b), and as the intent, in both cases, is to kill the terrorists, the pilots are warranted, all things being equal, in claiming moral permissibility for their mission. Should noncombatants be killed in case (a), their deaths, I believe, would clearly be accidental since such an unfortunate and tragic occurrence was both highly improbable and unintended. Should noncombatants be killed in case (b), their deaths, though, perhaps, more likely than in case (a), would clearly be unintended. In case (c), however, since noncombatant deaths are as probable an occurrence as are the deaths of the combatants and reasonable preventive precautions have not been implemented, there is no warrant for claiming moral permissibility for the mission. The killing of noncombatants in this case is neither accidental nor unintentional despite the claim by the pilot that his intent is only to kill the terrorists. As noted earlier, morality requires more than merely a proclamation of good intent. Case (c) is an example of collateral violence and, as such, morally impermissible. Though I will not argue the point here, I have grave doubts whether any preventive precautions would be reasonable in situations such as case (c) given the nature and location of the bridge. It may well be the case, therefore, that for those who take morality seriously, sometimes targets must be ruled out entirely despite the dictates of military necessity.

It is important to notice that in all three cases, should noncombatants be killed or seriously threatened by the attacks, the pilots do violate, or pose a real and immediate threat to violate, the rights of the noncombatants they kill or endanger. Further, since the noncombatant victims of these attacks have neither lost nor forfeited their claim against the pilots that they not be killed, they retain their right to respond - - to kill the pilots, all things being equal - - in self-defense. Consequently, the pilots, even in cases of the accidental and unintentional killing of noncombatants, have become liable - - they are innocent aggressors. That is, they do suffer a forfeiture or override of rights or immunity and being the object of the justifiable use of violence and deadly force in self or other defense. Since their liability is clearly a consequence of killing or threatening to kill noncombatants during the bombing of the bridge, and as acting morally and permissibly never warrants such sanctions, the attacks in all three scenarios are morally impermissible.

What has next to be determined is moral culpability - - whether the pilots deserve moral condemnation, blame, and being the object of retribution and punishment, after the fact, for their rights’ violations. It is here, I believe that DDE has moral relevance. In cases (a) and (b), given the pilots warrant to claim permissibility and the fact that the killing of the noncombatants is accidental and unintentional, the pilots are non-culpable, morally excused (though not justified) for their rights’ violation - - they are not committing murder nor are they prosecuting an act of terrorism. What the DDE does not do, even in such cases, is to render the acts morally permissible or justifiable, or the pilots non-liable. The DDE, then, has relevance only to determinations of culpability and functions only to excuse the pilots after the fact in cases where noncombatants are killed accidentally and unintentionally.²² In case (c), however, and in all cases of collateral violence, since the pilot bombs the bridge knowing that noncombatant deaths are as probable as are the deaths of the combatants, he is both liable and culpable - - subject to be killed, all things being equal, in self or other defense, and deserving of moral blame and condemnation and subject to arrest, and if convicted, punishment after the fact.

Determining the moral permissibility of an act of war is a difficult and arduous task given the gravity and unpredictability of all that war entails. What is required, however, in determining whether a particular act of war may be prosecuted- - in an otherwise moral war - - is not infallibility, that is, that we could never be wrong in determining permissibility, but only that our claim of permissibility be warranted. Though it is beyond the scope of this essay to answer the many questions of interpretation raised by this criterion of warrant, suffice it to say that some of its main requirements can be garnered from cases (a) and (b) above. These cases illustrate quite nicely when an agent may be warranted, based upon reasonable and rational deliberation regarding the available evidence, in claiming permissibility. They also illustrate, however, another important aspect of the Warrant Theory. That is, given our human fallibility and the vagaries of chance, an agent may be mistaken in his claim should noncombatants be killed. It is crucial to the Warrant Theory of Permissibility that we accept the limits of our powers of discernment and understand that warrant does not guarantee moral permissibility and justification. Should act "a", for example, that agent "x" is warranted in claiming to be morally permissible at time T1, result in the killing of noncombatants at time T2, one must conclude, not that it is sometimes permissible to kill noncombatants, but that x’s determination of permissibility at T1, though warranted, was incorrect. In this way permissibility claims are similar to knowledge claims. That is, though we may be warranted, based upon reasonable and rational deliberation regarding the evidence available at time T1, in claiming to know that the earth is flat, since at T2 it becomes apparent that the earth is not flat, we must conclude, therefore, not that we sometimes know things that are incorrect, but that the claim to knowledge at T1, though, perhaps, warranted, was invalid. We cannot know something that is not the case. The fact, by the way, that sometimes we can be wrong about knowledge claims doesn’t, in my view, entail skepticism - - that there isn’t anything that we know or that we can never act on our claims to knowledge. It merely recognizes our human limitations. Similarly, the fact that we can be mistaken about permissibility claims does not entail an Absolute Pacifism - - the view that the use of force or violence is never morally permissible - - or a War Realism - - the view that war is amoral and only pragmatic determinations of military necessity and efficacy are relevant to determining behavior in war. It merely recognizes our human limitations. That is, we can make claims of knowledge and permissibility and, if warranted, act on these claims despite the possibility that we may be mistaken.

One may object, however, that since, in cases (a) and (b), warrant and intention have been satisfied, and the killing of noncombatants was accidental and unintended, can’t the act of bombing the bridge correctly be described, not as killing noncombatants, but as killing terrorists? And, since killing terrorists is a permissible act of war, might one not conclude, therefore, that the act of bombing the bridge in case (a) and (b) is morally permissible despite the fact that noncombatants are killed? This question illustrates the importance of interpretation to ethical judgment, what has been termed the "Problem of Relevant Descriptions," the view that the rightness or wrongness, permissibility or impermissibility of an act depends upon how one describes the action and its attendant intentions. This objection fails, however, as the pilots becoming liable as a consequence of bombing the bridge, even in cases of accidental and unintentional noncombatant deaths, provides insight into resolving the Problem of Relevant Descriptions - - insight into how the act of bombing the bridge should be described. Liability cuts through the confusion, prejudice, bias, ideological agenda, and manipulative language, and provides a substantive basis for objectivity in description and hence, in moral evaluation. That is, the pilots in cases (a) and (b) are not merely killing terrorists, since one does not become liable for such actions, they are killing noncombatants.

What is relevant in determining an actual right and duty in a situation of conflict is the relative stringency of the conflicting prima facie rights and duties. Further, determinations of stringency is not "agent relative," that is, moral legitimacy, in such cases, demands that moral judgments be made behind a Rawlsian "veil of ignorance" independent of considerations of familial or national identity of the right bearer. Secondly, all prima facie rights and duties of the same sort have equal moral importance. Thirdly, determinations of moral stringency are not aggregative or teleological, that is, the rights of a few noncombatants cannot be overridden in behalf of the equally stringent rights of the many. Though a thorough consideration of this issue is beyond the scope of this essay, suffice it to say that, ". . . rights cannot be justifiably protected by violating another right which . . . is at least equally important."²³ To do so would be to violate the principle of respect for persons, treating the few, not as ends in themselves, but as a means to the ends of the many.

The dilemma illustrated in Terrorist Conference, for example, hinges upon a conflict between Captain John’s prima facie duty not to kill the Montagnian noncombatants and his prima facie duty to save the lives of, perhaps, a greater number of his fellow citizens, possibly even members of his own family, who would be potential victims of future terrorist attacks. Again, a determination of liability will be crucial to resolving this interpretation of the conflict in Terrorist Conference. That is, liability provides insight into evaluating the relative stringencies of the conflicting prima facie duties and in determining which duty becomes actual. Should Captain John choose not to bomb the conference, the future victims of terrorism - - the inhabitants of the Kovinian capital - - despite their realization of the possible importance of this bombing mission to their future well-being, may not kill Captain John in "self-defense" (knowing, perhaps, that, once dead, Captain John’s plane will crash into the conference site killing the terrorists). The observation that the Montagnians may, and the possible future victims may not, kill Captain John in self-defense provides insight into the scope and stringency of the conflicting duties in this situation. While individuals have a claim against others that they not kill them, they do not have a claim - - or, at least, not as stringent a claim - - against others that they save their lives. By bombing the conference, Captain John violates Montagnian rights and claims against him not to be killed. Should Captain John choose not to bomb the conference, however, no rights - - or less stringent rights - - of the possible future victims will be violated. Consequently, Captain John’s actual duty in Terrorist Conference is to abort his mission - - not to kill the noncombatants - - despite the possibility of a future terrorist attack that will kill, perhaps, a greater number of his fellow citizens, including members of his family.

Corroborating this very difficult moral decision is what has been termed the Principle of Intervening Action.²⁴ Should the very same terrorists who would have been killed had Captain John bombed the conference, later attack the Kovinian capital city, the responsibility for the Kovinian deaths - - for the violation of their rights - - is attributable not to Captain John but to the terrorists. Consequently, the possibility that many Kovinian noncombatants may be killed in a subsequent terrorist attack, does not impact upon his duty not to kill the Montagnians.

The acceptance of the prima facie nature of rights and duties, therefore, does not weaken the COD as it has little, if any, practical impact upon how it is implemented. It is my view, despite W. D. Ross’s less than adequate account of the relative weights of prima facie duties, that in the world as we know it, populated by beings as we know them, there is no stronger right then the right to life and no stronger duty than the duty to respect that right.²⁵ Consequently, in the event of conflicting prima facie rights and duties, respect for life and the correlative duty to not to kill noncombatants, becomes an actual duty. That is, the killing of noncombatants is actually unjustifiable and immoral even under those circumstances of supreme emergency or to save other innocents, etc.

Morality is not a tool of diplomacy nor a weapon of war to be abandoned or manipulated should its tenets prove inconvenient to the accomplishment of some goal or purpose. If morality is to have any meaning and if we as individuals and as a nation are to avoid hypocrisy, morality must be applied fairly and without prejudice, bias, or consideration of advantage. It my well be the case, in the event of a conflict between moral principles and perceived military necessity, that the former - - the dictates of morality - - rather than the latter that must prevail.

As victims of terrorism, our cause may be just and our outrage real. While such aggression at the hands of terrorists may justify the use of force, violence, and war as a response, it does not relieve the respondent of its obligation to act responsibly - - its obligation to discriminate and afford immunity to noncombatants. That is, being the victim of terrorism does not warrant our becoming terrorists.

In this essay, I have argued from a rights-based perspective for a stringent interpretation of the criterion of discriminating and affording of immunity to noncombatants and that a violation of this principle, whether bc y terrorists or by those responding to terrorism, is immoral. Furthermore, I have argued that violating the COD cannot be justified or even excused by rationalizing such acts of murder as collateral damage.

I have no illusion that my account is the final word, nor that the assumptions upon which it is structured are acceptable to everyone. I offer it as a work in progress and invite my readers to join the dialogue on this critical and tragic phenomenon of the 21^st century.

Endnotes