Non-combatant Immunity and the War on Terrorism

Major Tony Pfaff

Foreign Area Officer

7816 Welch Ct, Alexandria, VA 22315

Tpfaff@stanfordalumni.org

Introduction:

Shortly after the United States began conducting military operations in Afghanistan, an article appeared in the Los Angeles Times that claimed that the military’s overwhelming concern for avoiding non-combatant casualties hampered its ability to find Osama Bin Laden and end the war quickly. Paradoxically, the article pointed out, this lengthened the war and led to more non-combatant casualties.[1] But the military has not only been criticized for excessive concern, but also for excessive carelessness. After the accidental bombing an Afghan wedding party, many commentators accused U.S. forces of not taking enough risks to avoid such tragedies. Further, some questioned the justice of a war in which, by some reports, more Afghan civilians were killed by U.S. air strikes than American civilians were killed in the terrorist attacks which precipitated it.

While few disagree that the US is justified in responding to the attacks of September 11, many are genuinely concerned regarding how the US has chosen to respond. They are concerned that the United States is using excessive force and disregarding, without good cause, the legal and moral norms of international politics. Many argue that it is, in fact, inappropriate to treat this conflict as a war and would prefer to see the terrorists pursued as though they were criminals.[2] This confusion over the kind of threat the terrorists represent makes it difficult for members of the military to resolve the tension created by the imperative to accomplish missions and the prohibitions against civilian casualties. Resolving this confusion is essential to resolving the moral issues the “War against Terror” pose.

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 Yemen to pursue the terrorists, not Light Infantry Divisions. And while the U.S. has launched military strikes in the past to retaliate against or to destroy terrorist facilities, these have for the most part been very limited and done in such a way to avoid, though not always successfully, non-combatant casualties.

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.” [3]

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 U.S. government’s obligation to protect its citizens comes into direct conflict with the more general obligation not to harm innocents. But rather than being a true moral dilemma, this ethical problem arises out of a misunderstanding of the kind of threat certain terrorists represent.

Political and technological developments of the late 20^th and early 21^st centuries have enabled terrorists to engage in what is variously known as 4^th 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.

Non-combatant Immunity:

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.[4] 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. [5]

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.[6] 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.[7] 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.[8]

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.[9] 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…”[10]

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.[11] 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. [12]

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.[13] 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.[14] 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. [15]

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.[16] 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 US efforts in the war on terrorism points out that in police operations, police must use minimum force in order to accomplish their goals.[17] He fails to note, however, that this is true in military operations as well. Both the law and morality of war require soldiers to use the minimum force necessary in accomplishing their missions. It is just that the idea of necessity has different applications in different contexts. For police, necessary force is the least force possible to achieve their ends. It is never so much force that they may knowingly, though unintentionally, harm an innocent. For the soldier necessary is the most force possible given the law and morality of war.

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 US policies. Many critics have argued that the US has pursued excessively brutal policies, especially in regard to the war in Afghanistan, where a number of non-combatants have been killed.

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.[18] 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.

Some critics 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 United States, as well as many other nations, have been fighting terrorism, even Islamic terrorism, for a number of years. He also correctly notes that this war consisted mostly of the assassination of government officials and the hijacking and destruction of commercial means of transportation resulting in the deliberate killing of civilians when they are their most vulnerable. [19]

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 Scotland in which more than 300 people died, and the events of September 11. In the former, terrorists destroyed a commercial aircraft in order to instill fear in a target population in order to force political change. In the latter, terrorists used modern communications and civilian aircraft to coordinate and conduct a direct attack against the political, military, and economic institutions that are indispensable to the United State’s exercise of its political sovereignty and preservation of its territorial integrity. In what Hill describes as the “first war on terrorism,” the terrorists simply were not capable of waging war, only of committing crimes. That changed on September 11, 2001.

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.[20] 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 United States, or any state for that matter. The terrorists’ well-publicized attempt to obtain weapons of mass destruction only underscores this point.[21]

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 US’s war against terrorism would prefer to see it fought more like the “war on drugs,” rather than a literal war, which they see happening in Afghanistan and fear will happen in Iraq. They would prefer, in the words of Professor Michael Howard, “a police operation conducted under the auspices of the United Nations on behalf of the international community as a whole, against a criminal conspiracy whose members should be hunted down and brought before an international court, where they would receive a fair trial and, if found guilty, be awarded an appropriate sentence.”[22] These critics see a disconnect between US claims to value law, order, and stability in the world and what they consider a blatant disregard of the same in pursuit of the terrorists. [23]

Howard likens the current conflict with the Al-Qaeda to conflicts the British fought to protect their interests in Malaysia, Cyprus, Palestine, and Ireland.[24] In these conflicts, which the British called “emergencies,” police and intelligence services were given “exceptional powers” and reinforced by the armed forces when necessary. “If force had to be used, it was at a minimum level and so far as possible did not interrupt the normal tenor of civilian life.”[25] Here Howard makes some important points. This is not the first time a major power has faced a smaller and potentially dangerous adversary. He is also right to point out that it will be necessary to use the combined efforts of police, intelligence, and military forces in order to prevent the Al-Qaeda from achieving its goals. The military will not be able to do it alone. He is also right in that it is important to use the minimum force necessary in pursuing these terrorists. But words like “necessary” and “possible” are notoriously vague, and one may plausibly argue, given the different senses ‘necessary’ can have, the US is in fact conforming to the above criteria.

The terrorists who struck the United States on September 11 have the intent and capacity to violate the political sovereignty of the United States in way not previously experienced. The fact that they are actively pursuing weapons of mass destruction only underscores this point. Thus, they are in the sense discussed above, enemies. However, their acts of violence do not represent an act of aggression by a state, and thus committing an act of aggression against another state is problematic. Killing innocent citizens of that other state is even more so.

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 London, there was no call to bomb West Belfast … Rather, steps were taken to apprehend the criminals, and efforts were made to deal with what lay behind the resort to terror.” Chomsky also wonders why there were no calls to bomb Idaho and Michigan in response to the bombing of the Federal Center in Oklahoma. [26] In this view, to pursue the terrorists under the war model would itself be an act of terror.

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 Britain, should, in any sense of the word, bomb West Belfast. Nor should the US have launched military strikes against Idaho. And this is where the war model breaks down in the context of the war on terrorism. The citizens of West Belfast are British citizens. The citizens of Idaho are US citizens. States have a positive obligation to protect their citizens. It would be irrational and self-defeating, therefore, to violate this obligation in order to preserve it. Thus within one’s own borders it would be immoral to pursue terrorists in a way civilians will knowingly be harmed.[27]

But terrorists operate outside the borders of the United States, sometimes with the support of other states, but often without. In cases where a state actively supports terrorists who commit acts of aggression, it is also guilty of acts of aggression and may be attacked and its citizens subject to unintentional harm. In this case, terrorists are state actors and the state bears responsibility for their actions. But many terrorist organizations operate in a number of states, often outside of government control. This complicates matters since as non-state actors terrorist organizations can make use of state resources without the state bearing any responsibility. In such cases, it is important to remember that non-combatants are not subject to unintentional harm because they somehow deserve it. Rather, they are subject to unintentional harm because they are citizens of a state whose act of aggression must be defended against. The actions of the aggressing state have put them in harm’s way. Similarly, it is the actions of the terrorists which subject the non-combatant populations in areas in which they operate to unintentional harm.

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 United States. The obligation states have to protect their citizens from harm would morally compel them to defend their populations against unintentional but inevitable harm by U.S. forces in the pursuit of terrorists. Thus pursuing such a policy is morally irrational since it has the potential to unnecessarily widen the conflict and make pursuit of the terrorists more difficult.

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, [28] 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 Afghanistan, it is permissible to pursue terrorists in such a way that non-combatants may be harmed; though, this harm must be limited by the doctrine of double effect.

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.”[29] 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.[30]

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 June 2, 2002 Washington Post, precision weapons pose a special kind of moral dilemma for US soldiers and airmen. By fielding very precise weaponry, the US builds up the expectation that the wars it will fight will be ‘clean,’ that is largely void of non-combatant casualties. However, as this expectation is raised, adversaries will find it increasingly profitable to hide military facilities and equipment in civilian and other non-combatant facilities such as hospitals, schools, and POW camps, as well as residential areas, thus increasing the likelihood of non-combatant casualties.[31] In this way, potential adversaries can reap the political benefits of portraying the US and its Allies as immoral. In response, Schrage argues, it is necessary to reexamine the laws of war.

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 regrettable, the US should pursue courses of action without regard to them. What matters is winning the war, at any cost, and regardless of who incurs the cost.

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 United States has signed,[32] it also violates the moral commitment they make to the founding principles of this country, namely that all persons are created equal and have a right to life and liberty. But though disregarding the idea of non-combatant immunity is not an option if we are going to maintain our other moral and contractual commitments, it is still worthwhile to question whether our current application of this idea is appropriate in the current context.

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 that the US must be “willing to pursue the terrorists through their families.” By this he means taking advantage of the fact that Arabs value their familial relationships in order to provide a disincentive to terrorists. If this means targeting family, friends, or even the neighborhoods where terrorists come from in order to make participation in terrorist acts costly then it would not be permitted under this provision of the doctrine of double effect. But what is not ruled out is targeting terrorists simply because they are with family, friends, or other non-combatants. If terrorists choose to pursue a strategy of hiding in civilian populations such that the only way to strike them involves harming civilians, then as discussed above, part if not all of the fault of those deaths lie with the terrorists, not the US and its allies. Non-combatant immunity works both ways. If terrorists can choose to conduct their operations in such a way that minimizes risks to their own non-combatants, but chose to do otherwise, then the fault of those non-combatant deaths lie with the terrorists, not necessarily with those who oppose them.

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 US and its allies should pursue an aggressive policy by which they engage terrorists wherever and whenever they find them, by employing means that can kill them without doing any more damage than is necessary to do so. Furthermore, even if in particular situations conforming to moral obligations leads to restraint and perhaps missed opportunities, this may be the short term price to pay in order to gain the long term benefit moral integrity brings.

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.

Conclusion

Whether the United States has taken the morally appropriate path in dealing with the Al-Qaeda terrorists ultimately depends on what kind of threat they represent. As horrific as the attacks on September 11 were, the terrorists ultimately did not achieve their goals. The US economy stabilized and is on the road to recovery, the Pentagon’s ability to command U.S. forces all over the world was not interrupted, and the White House was not touched. Thus, while they are capable of conducting devastating attacks, it is not clear from prior experience that the Al-Qaeda terrorists can commit the kinds of aggression that warrant war. If this is the case, then Howard is right in saying that the military operations in Afghanistan have whittled away the “immense moral ascendancy” America has gained as a result of the terrorist attacks.

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 United States. Though not a state themselves, they have developed the ability to gather resources from a variety states and organizations and use them in such a way that threatens the political sovereignty and territorial integrity of the United States. Thus the US may have whittled away at its moral ascendancy, but it should not have. But this does not mean that the US response may not be without criticism. All terrorists are criminals, but not all represent the kind of threat that justifies the knowing, but unintentional harming of non-combatants. To the extent US leaders lump all kinds of terrorists into this category, they risk doing a great deal of moral harm.

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 the US should restrain its efforts in fighting this war. But it does mean that those prosecuting this war must remember the United States is a member of a community of nations and that there are obligations to citizens in other states, even ones which support the terrorists that must be observed. One cannot rationally fight evil by committing it. Thus when political and military leaders ask themselves the question, "what should we do?" they need to consider both the moral, not just the pragmatic, aspects of this question. Certainly, in the midst of America’s justifiable anger it must take care not to become like the enemy it fights.

NOTES