Just War Theory, Law Enforcement, and Terrorism: A Reflective Equilibrium

LTC Daniel S. Zupan

Introduction

I once attended a conference at which a philosopher attempted to justify the war against terrorism, particularly the ongoing war in Afghanistan, in terms of standard just war doctrine. He analyzed the use of force by the United States and its allies under each of the more or less commonly accepted jus ad bellum criteria. During the question and answer period that followed, his position was politely yet convincingly refuted. The fact of the untenability of his position led many people to some unsettling conclusions. Some feared that perhaps the war we were waging was unjust. Others worried that just war theory had been shown to be obsolete. Many people felt uneasy at the prospect that we had no consistent theoretical way to justify the war against terrorism. And without the conceptual apparatus to justify the war, the fear is that we may lose our moral bearings as we face this most pressing challenge to our deepest human values.

I believe that our fears are unfounded and that there are deep principles that can and do justify and guide our use of force in the war against terrorism. Just war theory is not obsolete, and our struggle against terrorism is just. The problems of justification have arisen in attempting to apply the just war theory template in inappropriate ways. We are engaged in a conflict that conceptually, in many important respects, resembles law enforcement. But the enemy is so arrayed, armed, and organized, that the forces and tactics required to combat them make our struggle look like conventional war. Hence, at times the appropriate model to understand the situation in a moral sense is the model of domestic law enforcement; at other times, just war theory is the appropriate model.

I will attempt to articulate a reflective equilibrium between principles of just war theory and principles of law enforcement. Neither model – just war or law enforcement – individually adequately captures the moral reality of the war against terrorism. But if they are taken together, using moral insights from both domains, a new and relevant model emerges that can provide moral guidance in the war against terrorism. The apparent inability of one or the other model to explain and justify our response to terrorism will cease to be cause for concern since we will have identified consistent principles, which correspond with deep principles of justice, to guide our use of force.

Pacifism and the Domestic Analogy

I must make some preliminary remarks about pacifism in order to explore the underlying principles upon which I believe the justification for the use of force rests. A better understanding of these fundamental principles of justification will in turn establish the legitimacy of the domestic analogy upon which I and many just war theorists traditionally trade.

The fundamental problem with pacifism is that it judges all violence to be morally equivalent, a position that seems implausible, even counterintuitive. Violence itself is a morally neutral concept. For example, it is inappropriate to judge a violent, deadly storm in moral terms, or to ascribe moral characteristics to hyenas in their violent attacks on their prey. What imbue acts of violence with their moral characteristics are the maxims behind them. A maxim is a subjective principle of volition. More than mere intent, a maxim captures the general principle of action that generates specific intentions. One might, for instance, adopt a general maxim to always protect the innocent. That maxim is particularized to a specific intention when, say, one intervenes to protect an elderly person from a mugger. One intends to protect this particular person. Now compare the mugger’s maxim with that of the person who comes to the aid of the victim. The criminal has adopted an impermissible maxim since he intends to coerce another human being, to treat that person as a mere means, not an end in himself.[1] And suppose the person who protects the old person has to use force; suppose he has to wrestle the mugger to the ground. Are we to say that the protector’s use of violence is morally the same as the thug’s violence? This seems implausible and highlights the untenable nature of the pacifist’s position. It seems unreasonable to say that appropriate, necessary violence used to reject evil is of the same moral quality as the evil it rejects.

Of course, there is the pacifist position that condones violence as it is employed against criminals in domestic society, yet rejects war as something different not in degree, but kind, from domestic law enforcement or personal self-defense. This too seems untenable. If the ultimate justification for the use of force rests in the rejection of evil, in defense against those who would use human beings as mere means, then it seems wrongheaded to reject the just use of violence precisely at the point where evil has reached an extraordinarily malevolent level. Kant, in The Doctrine of Right, talks about hindering a hindrance to freedom in justifying the use of force and points out how there can be instances of justified coercion. Right actions, he says, are those that are consistent with universal laws of freedom, actions whose universalized maxims are consistent with free, moral actions of other human beings. Right actions are consistent with a respect for the dignity of humanity. Unjust coercion hinders principles that are consistent with universal freedom; hence, any action that resists that coercion hinders the hindrance and promotes those principles of freedom. Kant says:

Resistance that counteracts the hindering of an effect promotes this effect and is consistent with it. Now whatever is wrong is a hindrance to freedom in accordance with universal laws. But coercion is a hindrance or resistance to freedom. Therefore, if a certain use of freedom is itself a hindrance to freedom in accordance with universal laws (i.e., wrong), coercion that is opposed to this (as a hindering of a hindrance to freedom) is consistent with freedom in accordance with universal laws, that is, it is right. Hence there is connected with right by the principle of contradiction an authorization to coerce someone who infringes upon it.[2]

Just coercion, the just use of violence, promotes freedom: this reasoning is logically, as well as normatively, compelling and explains how a theory that connects unjust acts with coercion can at the same time justify certain forms of coercion. And, of course, the maxims behind the various uses of coercion provide the grounds for their commendation or condemnation.

If the above account is plausible, it will help justify the applicability of the domestic analogy to just war theory in general and to the case at hand in particular. Michael Walzer says:

The comparison of international to civil order is crucial to the theory of aggression…Every reference to aggression as the international equivalent of armed robbery or murder, and every comparison of home and country or of personal liberty and political independence, relies upon what is called the domestic analogy. Our primary perceptions and judgments of aggression are the products of analogical reasoning. When the analogy is made explicit…the world of states takes on the shape of a political society the character of which is entirely accessible through such notions as crime and punishment, self-defense, law enforcement, and so on.[3]

As Walzer points out, just war theory owes much of its moral force to analogical reasoning about domestic law enforcement. But there is a notorious point of disanalogy, namely, that there are no world sovereign and no world police force. Hence it is often considered difficult, even illegitimate, to traffic back and forth between the two domains in attempting to resolve the more intractable problems we face concerning the use of force, particularly in the international arena. I contend that despite the points of disanalogy between the international and civil realms, between war fighting and law enforcement, the justification to use force in either realm follows from deep moral principles, having to do with resistance to unjust coercion, that transcend the civil/international distinction. As such, the pursuit of a reflective equilibrium to justify our response to terrorism is an eminently legitimate endeavor aimed at illuminating those shared principles.

Seeking the Equilibrium

Just war theory (JWT) is typically considered from three perspectives: jus ad bellum, jus in bello, and jus post bellum. Jus ad bellum, justice for war, concerns the justification for the resort to war. This is usually a political responsibility; we are concerned here with the reasons states have or offer for using violence as a means to certain ends. Jus in bello, justice in war, concerns the means employed in the conduct of the actual fighting of the war. It is generally a soldier responsibility, addressing the permissibility of weapons or legitimacy of targets. Jus post bellum, justice after the war, concerns the just termination for war. This is generally a political responsibility and addresses the conditions that must obtain in order to justly end a war once it has started. It addresses the issue of the appropriate punitive measures imposed on aggressive nations, measures that must be consistent with the goal of ensuring an enduring state of peace, not merely the attaining of a temporary cessation of hostile actions in an encompassing atmosphere of war. Many theorists include jus post bellum as a component of jus ad bellum, a convention I adopt in this paper.

In terms of JWT, the focus of this paper is jus ad bellum. As I stated, jus post bellum concerns will be examined in the context of jus ad bellum. Jus in bello issues will be addressed in the main only insofar as they are relevant to jus ad bellum concerns

There are several ways to articulate the various components of jus ad bellum. I will discuss the following: just cause, right intention, proper authority, reasonable chance of success, no precipitous use of force (last resort), proportionality, and just termination.[4] In the discussion of each of them, I will examine their applicability to the war on terrorism, incorporating insights from domestic law enforcement, in order to arrive at a coherent, satisfactory, and morally compelling understanding of the war on terrorism.

I understand that the war on terrorism takes many forms. My focus here is the on-going war in Afghanistan (I wrote the first draft of this paper while deployed to Afghanistan as part of Operation Enduring Freedom) and the American experience since 9/11. I believe the insights ultimately have a more general application

Just cause. Defense against aggression represents the paradigm of just cause to use force. When one nation invades another, unprovoked, absent an offense to be redressed, the invaded nation can use force to defend itself. As we have seen in the Walzer passage above, we understand this insight in terms of the domestic analogy. The relationship obtaining between states is analogous to that obtaining between individuals within states; both states and individuals are considered in this context to be rights-bearing agents, and nations have the right to political sovereignty and territorial integrity. Any violation of these rights in the international sphere is analogous to robbery or murder in the domestic sphere. Brian Orend says:

The key principle here is the defence and vindication of fundamental rights, and the protection of those who have them from serious harm. From these general considerations, three just causes, in particular, can be deduced: 1) self-defence from aggression; 2) the defence of others from aggression; and 3) armed intervention in a non-aggressive country wherein grievous human rights violations are occurring.[5]

There is a presumption that the use of force against such threats is justified. In general, we have just cause to use force in self-defense, to protect the innocent, and to vindicate human rights: we do all of these in our fight against terrorism.

In the case of terrorism, the United States can claim just cause. Especially with regard to the terror network responsible for 9/11, we are using force against murderers, those who deliberately targeted and killed innocents. Furthermore, the 9/11 attacks violated the territorial integrity and political sovereignty of the United States.

But the incursion into Afghanistan requires some sorting out. It is not as if the 9/11 attacks exactly resembled an attack undertaken by a sovereign nation, similar to the Japanese attack on Pearl Harbor in 1941. That is, the attacks did not appear to be a national effort on the part of Afghanistan. Nonetheless, those who launched the attack use Afghanistan as a sanctuary in which they plan and from which they launch their attacks. If the Afghanistan government were unwilling to control the terrorists and unwilling to hand them over, our attacks there seem analogous to a police raid into the home of someone who is harboring a criminal. On the other hand, if the Afghanistan government were unable to prevent or handover the terrorists, our actions might resemble a police raid intended to secure a neighborhood victimized or held hostage by a criminal gang. In any case, I don’t see the justification here as conceptually that difficult. We don’t grant criminals impunity on the grounds of the supposed inviolability of their sanctuary. In both the domestic and international domains, principles of justice permit the pursuit of criminals wherever they go. There are limitations as to what can be done, and justification is clearly required. But the point is that justification is also possible within the context of principles that both protect the rights of individuals and states yet permit the pursuit of criminals.

There is another aspect of the issue that we should discuss under just cause. Some contend that the terrorists have legitimate grievances. But even if we were to grant the accuracy of that claim, their actions could not be justified. If they claim to be redressing an injustice, then they are logically committed to our world of moral discourse, and their position becomes self-defeating. It is contradictory, in order to attain their ends, to violate justice in the name of justice.[6] On the other hand, if they don’t accept such moral terms or even refuse to invoke the cause of justice, their position seems to reduce to nihilism, an anarchical rejection of anything but the rule of violence. And if this is the case, they have no grounds upon which to complain about our campaign against them. Such a complaint on their part reduces to a sort of absurdity since they would be complaining on the grounds of a normative standard the existence of which they deny. It is worth noting that societies always contend with criminals who either justify their own crimes or deny the validity of the social norms that condemn their crimes. So this phenomenon is not unique to terrorism. And in both domestic and international contexts, principles of justice permit, sometimes demand, a violent response against those who victimize the innocent.

The principle of just cause, then, seems to work in very similar ways in both just war theory and law enforcement. In both arenas, just cause derives from notions of human dignity. We are justified in rejecting actions that coerce human beings and treat then as mere means; we are sometimes justified in using force in the defense of human rights.

Right Intention. Even if we have just cause, we cannot use it as a cloak for other aims. For example, it would be impermissible to use our legitimate claim of just cause for attacking Al Qaida (as a war of self-defense or law enforcement) as a cloak to hide another intention, say, the eradication of the opium trade. If the latter did provide just cause in itself, it would have to be justified independently (an unlikely prospect).

This principle includes the requirement to abide by jus in bello proscriptions.[7] The primary injunction of jus in bello is discrimination: nations engaged in conventional war or war against terrorism must discriminate between combatants and noncombatants. We must take great care in minimizing harm to noncombatants. The distinction between combatants and noncombatants translates further into the distinction between legitimate and illegitimate targets, an important clarification for issues attendant to the war against terrorists. For example, even though we are using conventional soldiers to fight Al Qaida in Afghanistan, we don’t consider those terrorists to be legal combatants in the sense that they merit POW status and all that goes with it in terms of the Geneva and other conventions. They are suspected criminals who typically will be prosecuted in accordance with due legal process. Nonetheless, they are suspected criminals, and insofar as they are engaged in harming us, they are legitimate targets. And although they don’t have POW rights, they generally acquire the legal rights of the accused. And under any description, if they attempt to surrender, we must accept their surrender and follow due process after that. It is worth noting at this point that, through the process of reflective equilibrium, we are able to arrive at a better understanding of the status of terrorists.

In some way, right intention and just cause are two sides of the same conceptual coin. To have a right intention is to be committed to vindicating human rights, rejecting evil, and abiding by the terms of the justice that warranted our violent response to evil in the first place.

Proper Authority. This is an oft cited yet little understood principle of just war, and it holds great importance for our understanding of the fight against terrorism. On some level, we could view this principle as fundamental to civil or international order. This principle addresses issues concerning the legitimate authority to declare and wage war. It is generally acknowledged that only viable political communities, in the person or persons of their leaders, can legitimately declare and prosecute war. The reasons for this provide a critical insight concerning the essential criminality of terrorism.[8]

I will borrow an insight from social contract theory. In the state of nature, everyone is empowered to enforce the law of nature. Once the community is formed, however, the power of enforcement is transferred to the body politic and the peoples’ representatives who have been designated to perform the law enforcement function. Except under extreme circumstances, ordinary citizens are precluded from law enforcement activities. A fortiori, they are prohibited from mounting personal violent campaigns against states. Those who transgress this prohibition or don’t acknowledge its force, remain in the state of nature with respect to everyone else. Hence, the rationale behind this principle is sine qua non to the possibility of civil and international society. Those who prosecute “private wars” put themselves in the state of nature with respect to all of humanity. And we should specify that this is a Hobbesian state of nature, a lawless, anarchical state where the very concepts of morality, justice, and injustice do not exist.

Terrorists proclaim by their actions their unwillingness to abide by any laws or social conventions. They recognize no proscriptions or constraints, or any authority over them such that it would bind them as members of communities committed to a cooperative quest for justice. Their cause, to them, dictates the meaning of justice, or even denies the meaning of the term. The struggle against them is in this respect like domestic law enforcement against depraved, violent criminals who violate state law.[9] Understanding this conceptual framework properly will pay big dividends as we investigate the connection of just war concepts to the war against terrorism. Terrorists represent a rejection of community. In a very deep sense, their ideology is logically incompatible with the idea of a cooperative human venture, either in its civil or international forms. It is not simply that they do not act under the aegis of proper authority, they deny the relevance of the principle. In so doing, they deny the legitimacy of states, they deny the rights of people to carve out a shared life, they deny the unique importance of individual human beings, and ultimately they deny morality. They really are like Locke’s savage beasts, predators with whom coexistence is unthinkable.

This just war principle includes the following requirement (an insight which again I borrow from Brian Orend). A country engaged in a just war must remain committed to maintaining and securing the civil liberties of its own citizens. For instance, we witnessed an alarming call for the curtailment of civil liberties in the U.S. after 9/11. This call was made more disconcerting by the attempt in some quarters to legitimize racial profiling, reminiscent of the treatment of Japanese Americans during World War II. Countries who are committed to justice should eschew reactionary measures that violate the rights they are fighting to defend. Furthermore, in some sense, if we impinge our own civil liberties, the terrorists have won. They, for some reason, despise our freedom and our way of life. If we in essence coerce ourselves as a response to their coercion, they have achieved their ends. This is not to say that we can’t take measures that make our lives more inconvenient (e.g., airport lines). But inconvenience is not prohibition; our rights remain intact. It merely takes a little longer to get what we want. And note that the inconvenience itself is noncoercive; the security is something we freely choose as a people to safeguard our rights. The lines at the airport take on the same moral dimensions as speed limits – agreed-upon measures that protect us from the reckless and the criminal.

Reasonable chance of success. In the context of just war, this principle enjoins nations to decline the resort to war when it seems clear that the effort would be futile. For example, a small nation invaded by an overwhelmingly superior force should not resort to war. To resort to war with no chance of success manifests gross indifference to the lives of those who would die in the futile effort, an effort whose result is foreseen. It represents a waste of human lives and a decadent abuse of power by those who frivolously spend the precious national resource that the citizenry is. For nations faced with this trying situation, there at least remains hope of diplomatic resolution some time in the future; but for those wasted dead, all hope is lost. Although capitulation to evil violates our sense of justice on one level, complicity in senseless slaughter is a far deeper violation of justice.

However, there is one circumstance where, even in the face of certain defeat, resistance might nonetheless be preferable to standing by and doing nothing. If the invading force represents a certain level of evil and malevolence, such that life under them would be nightmarish, a fate worse than death, then it might be best to resist. If death or enslavement is inevitable whether you resist or not, it seems best to resist. Such resistance might be consistent with respect for humanity and represent consent on the part of the citizenry, since all would reasonably be assumed to prefer to fight and die rather than live such an existence. The Nazis represent the sort of evil that might warrant such a response. That is, when one faces the same fate either way, it seems at least permissible, if not preferable, to resist with force. The heroic actions of the passengers who resisted the highjackers on 9/11 and prevented an attack on the White House come to mind. They faced death no matter what, so they fought back. This is not futile effort, but rather heroic action.

This principle comes to bear on the war against terrorism in the following way. There are those who say that we have no reasonable chance of success in eliminating terrorism; hence, they argue, we shouldn’t take up the fight. Or they argue about the difficulty in identifying an endstate, which problem at least causes hesitation. But the confusion here arises because detractors are trying to apply this just war concept to a problem that is much better understood in terms of the law enforcement model. Consider it this way. We can never reasonably hope to eliminate robbery or murder. Does it then follow that we shouldn’t pursue and bring to justice this particular robber or this murderer? It seems implausible to think so; we endeavor to bring to justice all evil doers even in the face of the fact that evil will nonetheless persist.

We are forced to reevaluate our conception of what an appropriate endstate would be. Yes, we’d like to eliminate all terrorism and bring every terrorist to justice. But falling short of that does not mean we have failed. I’ll discuss this in detail when I consider just termination, but for now it suffices to point out that we gain some measure of success with each terrorist we bring to justice. Furthermore, we are successful if we reduce the threat, just as domestic law enforcement agencies are successful if they reduce crime. The notion that success is intrinsically tied to the unconditional surrender[10] and the complete eradication of the enemy is as inappropriate in this war as it is in most conventional wars. Justice is met, perhaps only met, when less comprehensive conditions are set.

A conceptual error results if we don’t seek the reflective equilibrium. If we follow this line of analysis, we will develop some reasoned principles to guide us in non-arbitrary ways in conducting a just campaign against terrorism.

No precipitous use of force. Just war literature often refers to this principle as “last resort”; it requires nations to resort to war only as a last resort to resolve problems. But to call it last resort is problematic. Hence, I prefer (following Brian Orend again) to capture the essence of this principle in terms of the precipitous use of force. The principle conceived under the description of last resort is not very helpful in war or in law enforcement. For one thing, we can never know what constitutes lastness, as Michael Walzer implies[11]. There always will be one more negotiating session or one more concession that we can make. Furthermore, by waiting for the so-called conditions of last resort, we might unwittingly concede the victory to the enemy. Witness the war in Kosovo. The longer NATO refrained from the resort to force, the longer the Serbs had to commit their ethnic cleansing. We could argue that, under these circumstances, justice demands a resort to force sooner rather than later.

What is required, then, is for nations to consider judiciously the circumstances and certainly seek peaceful resolution before any resort to war. On the other hand, nations should recognize that hesitancy to use force in the face of certain forms of evil fails the test of justice as much as the unnecessary, precipitous use of force. Consider an example in law enforcement. If a criminal is engaged in harming his victim, we don’t require the police to first negotiate with the criminal to have him stop. The “last resort” criterion doesn’t come to bear here in the same way as it does in the arena of conventional war. The immediacy of the situation and the unambiguousness of the evil intent/action minimize or eliminate the requirement for lastness. Of course, if the police can get the criminal to cease and desist by simply yelling “halt” or some such thing, we would call for such a course of action. It is circumstance dependent; we could make the same point about circumstance with respect to war. But in the case of law enforcement, the presumption in favor of using force is different than that in the case of war. We recognize the exigencies involved with hot pursuit and don’t impose last resort requirements under such conditions. Perhaps we feel that we’ve already met the last resort requirement when involved in hot pursuit against a criminal who is presently engaged in harming. But that is only to recognize that negotiations, the use of measures other than force, are sometimes not appropriate; indeed, they are sometimes impossible unless one sacrifices the victim.

So when we have been criticized for having resorted to force too precipitously in our struggle against terrorism (and we have – I’ve heard the claim made with respect to the current conflict in Afghanistan), we can plausibly offer the domestic analogy. We are involved in hot pursuit against criminals who have harmed and are actively engaged in harming. Like a policeman, we should not negotiate with murderers who have indicated by word and deed that they will not negotiate; in fact, we cannot negotiate. Negotiation is not logically possible with those who reject the very principles that ground the possibility of negotiation. Hence, if the only way to stop a criminal or terrorist is by force, then the resort to force is not precipitous. Indeed, as the only feasible course of action, precipitousness is not logically possible; there is only one acceptable recourse, and that is force. It is not, nor can it be, precipitous. Indeed, any other course of action might fail the demands of justice.[12]

Proportionality. I am going to approach the issue of proportionality a little differently than the other criteria and offer a perspective somewhat different than that encountered in much of just war orthodoxy. In the end, my discussion suggests at least the plausibility of eliminating proportionality as a just war criterion. I must begin with its jus in bello application.

In the context of just war theory or law enforcement, proportionality must be considered a normative, not a descriptive term. It can’t be about numbers and ratios of forces, otherwise we’d get absurd results. If we are justified in using force to resist evil, we are justified in using as much force as necessary to win, as long as we don’t ourselves commit evil in the process. And since at least part of what is impermissible with the evil we are facing, especially when facing a violent criminal or conducting a war, is that it coerces us to face the risk of bodily harm or death, then it is permissible for us to do not only what is necessary to win, but also what is necessary to reduce our risk to the bare minimum.[13] Hence, we are morally permitted to achieve overwhelming force, if possible. That is, when we resist a threat, say a criminal who attacks us, our just end is to eliminate that threat. It can’t be the case, then, that we are morally required to endure risk proportional to the amount we seek to impose on the criminal, as if he is entitled to fair odds. Hence, we are not restricted to the use of means proportionate to those available to our attacker. We may use a bigger stick than he does, for example, and we may enlist help from as many people as are available and willing to aid us.

This does not mean that we are permitted to do whatever would be required to secure victory or reduce risk. When facing our attacker, we can’t snatch a baby out of the arms of a bystander and use it as a shield. Furthermore, once we have subdued the criminal, once he can no longer threaten us, we are no longer permitted to harm him – we can’t beat him or abuse him, although we can continue to restrain him, put him in jail, and bring him to trial.

Consider a scenario from domestic law enforcement. Suppose a drunkard is causing a disturbance in a public place, starting fights and attacking people. When the police are called, do we feel their response is disproportionate when they arrive with several officers to subdue the man? Hardly. We do not expect the police officers to fight a “fair fight” and go one-on-one with the criminal just in order to meet some bizarre proportionality requirement. It doesn’t matter if they surround him with 100 police officers; no rights of the criminal will have been violated simply by the force of numbers. His being gravely outnumbered does him no injustice. He is committing a crime, and it is permissible to stop him. And that is the appropriate, permissible goal of the officers. They can subdue the criminal and use force if required.

But simply granting this obvious point does not resolve the more complicated issues about proportionality. It still seems to make sense to say that even if we allow the police to greatly outnumber the criminal, their response must be proportionate. If they must beat the criminal, they must stop beating him once he is subdued. Moreover, they must not beat him more severely than is required to subdue him, and this latter seems to be a requirement for proportionality and is the most pressing problem we must solve.[14] There is an important sense in which we feel that the punishment must “fit” the crime and that even the means of enforcement must be proportionate to the offense. We ought not incarcerate jaywalkers for life, nor should police shoot people for spitting on the sidewalk. Such draconian measures would be condemned as disproportionate.

Deeper analysis will give us a different understanding of proportionality. My primary target here is the conception of proportionality as a tradeoff of goods and evils, especially with regard to the use of force in the domestic or international arenas. Typically, when we demand proportionate force, we demand that the good outweigh the evil, as if an evil component were necessarily connected to the use of force. This is what I object to as incoherent and as having disastrous moral results if reasoned to its logical conclusion. Look more closely at a domestic scenario. We don’t judge the use of force against a criminal along a spectrum, with good and evil on its opposite ends vying for preeminence in one and the same act of violence, both intimately involved. The act’s moral character is not defined arbitrarily according to the amount of good or evil produced, as if somewhere along the spectrum a mysterious transmogrification takes place, changing good into evil. Kant makes a similar point when decrying the shortcomings of virtue ethics:

…it is the most objectionable because it bases morality on incentives that undermine it and destroy all its sublimity, since they put motives to virtue and those to vice in one class and only teach us to calculate better, but quite obliterate the specific difference between virtue and vice.[15]

When a police officer struggles with a criminal, it doesn’t make sense to say that he is doing something that is both good and evil but that we condone his use of force because the good outweighs the evil. He is doing something right in hindering a hindrance. We don’t judge him on a scale. On the other hand, if he shoots the jaywalker or continues to beat the criminal after the criminal is subdued, we don’t think that his use of violence is wrong because the evil is now outweighing the good. Rather, we feel he is simply doing something evil in its own right. It is not evil because it is disproportionate; to think so reverses the causal order of our judgment. I contend that our judgment that such an act (i.e., shooting the jaywalker) is evil is prior to our designation of it as disproportionate and is based on principles that form the general grounds for the justification to use any force whatsoever. Putative violations of proportionality violate more fundamental rights. Recall that the only justification for the resort to force in the first place is to hinder a hindrance. It is beyond the scope of this paper to derive every principle that would follow from this mandate as its ground, but we can see the direction we might take. For instance, once he is subdued, it is impermissible to continue to beat the criminal. This impermissibility would seem to follow because it would be difficult to argue that one were hindering a hindrance once the criminal is no longer capable of being a hindrance. Again, I will not work out all the principles here, but it should be clear that judgments about the legitimate use of force are based on notions more fundamental than proportionality. Once a particular threat is thwarted, no further warrants follow – less, of course, those that follow from civil codes having to do with appropriate punishment for transgressions.[16] But these are all meted out within the context of the criminal’s being a rights bearing agent in spite of his crimes and thus protected from the sort of unjust coercion that police brutality represents.

Given the foregoing discussion, we can see that jus in bello charges of disproportionality in war become absurd, as if one side should give up its advantage over the other in the interests of fairness. As a normative term, it has no meaning here. Any victory is marked by disproportion in some respect: more supplies, more men, more weapons, more will or courage. If proportionality were viewed normatively, then it would be impossible to fight the just war justly – at least it would be impossible to win the just war justly, and this is a preposterous conclusion, resulting from confusion about proportionality. Proportionality can only be applied with meaning in a descriptive sense, and nations are permitted to attempt to overwhelm their enemies. If, however, they use means that deliberately harm noncombatants, they fail the moral test of discrimination, not proportionality. If they use means that cause unnecessary suffering to enemy soldiers, it is the same sort of failure, since the proscription against “unnecessary suffering” requires us to avoid the use of weapons designed deliberately to cause injury that continues to harm after a soldier’s status as a combatant has ended (hence the ban on barbed spears, dumdum rounds, etc.). Furthermore, they must accept the surrender of those who would lay down their arms in submission. So, countries who fail to abide by these sorts of limits are like police who continue to beat a criminal after he has been subdued; the evil is not in lack of proportion but in the violation of the sorts of rights the protection of which justified violent response in the first place. Other principles more fundamental than proportionality do the moral work.

Note that this conception of proportionality coincides well with our more considered judgments about just war and the purpose of the laws of war. We fight a just war to safeguard human rights and protect the innocent (we are all of us – even soldiers -- considered “innocents” until coerced by aggression to defend ourselves). The rights we uphold, the people we defend, impose the moral limits we must follow. Once we see that our use of force is not inevitably a tradeoff of good for evil, we will see the inherent evil in some actions, say, the deliberate targeting of noncombatants, and will be prohibited from taking such actions. The very rights that justify our violent response in the first place impose the moral limits on the violence we use.[17] This understanding of the status of rights might be one of the most important results of this analysis of proportionality. We rule out in advance the notion that we can do evil to prevent evil, as if somehow the real blood of the few innocents whom we deliberately kill can be washed from our hands by the imagined blood of the many innocents we allegedly save.

In terms of jus ad bellum, proportionality traditionally plays out in two ways. First, nations must consider whether the resort to war for a given offense is a proportionate response. Not every violation of territorial integrity or political sovereignty constitutes aggression; hence, not every such violation justifies war as a response. We wouldn’t be justified in going to war against Mexico, for instance, simply because some of their forces inadvertently crossed the border in pursuit of drug runners. Such a violation of our borders does not constitute a threat to our fundamental rights and so would not constitute just cause. Even if we conceive of this as a violation of fundamental rights, there are clearly other measures we could take short of war. We could and would pursue diplomatic solutions, for instance. The sense is that we would resort to war only when it in fact became apparent that other solutions weren’t reasonable and that the offensive practice promised to continue and increase in magnitude such that it would represent a real threat to fundamental rights. Under such circumstances, war might be considered a proportionate response. But all we are saying, ultimately, is that we now have just cause to use force. A resort to war in the first instance would violate the principles of just cause and precipitous use of force. Proportionality would not be the real issue; all the normative work is done under a consideration of principles other than proportionality.

The second way in which proportionality is said to figure in just war analysis has to do with the weighing of consequences. As Orend writes:

A state must, prior to initiating a war, weigh the expected universal good to accrue from its prosecuting the (otherwise just) war against the universal evils expected to result. Only if the benefits, such as rights vindication, seem reasonably proportional to the costs, such as casualties, may the war action proceed.[18]

I believe this is a conceptual error. Again, it makes it appear as if there is something intrinsically evil in the recourse to war, as if we must admit that dirty hands are somehow inescapable on the part of those who would resist aggression with force. As we have seen, the domestic analogy provides some insight as to the inadequacy of this conception of proportionality.

There is nothing inherently evil with the policeman’s doing of his duty. We don’t think that there is an evil aspect of his use of force against the criminal that is justified only if outweighed by the good results. In the terms of this discussion, the policeman has adopted a permissible maxim – in itself there is no evil aspect. This is not to say that no action on his part could be impermissible. For example, it would be impermissible for him to throw a baby in front of the vehicle of an escaping criminal in an attempt to get the criminal to stop. But this course of action is ruled out because it is so grossly rights violative; it is not an issue of proportionality. The policeman has been commissioned to protect the innocent, and this commission imposes the just limits on the actions he can take. He must not hurt the innocent in the pursuit of the guilty; he must not violate justice in the name of justice.

It is the protection of rights that imposes limits, not a principle of proportion. When we view the underlying principles that justify our resistance to evil in the first place, we see that justification is not based on principles of proportionality but rather on principles of human rights. We are committed to rejecting unjust coercion and must eschew means that themselves violate the principles in whose name we act.

We must consider the enterprise of war in a similar light. We should not consider it as an inherently unjust endeavor for the same reasoning as we reject such a conception of the situation in the domestic sphere. When coerced to protect ourselves, using force against evil, it is inaccurate to characterize our use of force as involving an inherent aspect of evil. Furthermore, if we were to conceive our enterprise as in some respects evil, it could permit the contemplation of actions that violate the principles of justice that warranted our violent response: we would, in the end, involve ourselves in a contradiction.

It is not the case, then, that police brutality or wartime atrocities are condemned on the grounds that they are disproportionate. What we’ll find, ultimately, is that actions that have historically been condemned as disproportionate have in fact violated other principles. And if my account is correct, we might consider dropping proportionality as a standard just war criterion.

Just termination. If we invoke the cause of justice as our reason for going to war, then justice itself must dictate the desired endstate. This endstate specifies both what must be attained in order for justice to be met, and it specifies limitations on what can be done in order to remain within the limitations imposed by considerations of justice. Domestic law enforcement provides a helpful model for understanding the requirements of this principle with respect to the war on terrorism.

In some sense, the struggle will never end, in the same way that in domestic society we will always face criminal threats and will always seek to prevent crime and to bring criminals to justice. The conditions for the termination of the struggle and all that it entails will probably never be met. Nonetheless, we recognize that just societies seek a balance between order and civil liberty. So against the backdrop of a ceaseless struggle against evil, we recognize limits imposed by justice. We recognize that we must have limited aims lest we sacrifice the very rights and freedoms we fight to protect.

Given an awareness of the ubiquity of evil, we adopt reasonable ends. We do so in domestic society, and we must do so in the international arena. And with respect to the war on terrorism, since there is no world police force, we must recognize the limitations imposed on us by the political sovereignty and territorial integrity of nations. We can’t have carte blanc law enforcement powers in other nations. For instance, even though there will be Al Qaida and Taliban fighters in Afghanistan for the foreseeable future, we do not have the prima facie right simply on that account to continue to occupy Afghanistan indefinitely. What seems appropriate is that we have the right to eliminate enough of the terrorists and their infrastructure to attain a certain level of security. Furthermore, we are permitted to stay until a viable government, capable of law enforcement, emerges.

That we should be able to occupy a country until it can maintain order within its borders follows from what it means to be politically sovereign or to enjoy territorial integrity. It does not seem appropriate to ascribe full sovereignty to a people who cannot maintain any viable government, cannot impose any law and order within its borders, and cannot control in any way the integrity of its own borders. But once sovereignty in a meaningful way is attained by the country in question, for an intervening power to stay longer in the pursuit of an unattainable goal, say the complete elimination of the threat, is both foolhardy and unjust.

On the other hand, we would be equally foolhardy and unjust to leave too early. If we leave before the threat is reduced sufficiently enough for the people of Afghanistan to autonomously police their own country, we open them up to reprisals and repression at the hands of the criminal element we are attempting to bring to justice. We also leave the world no more secure than when we embarked on the endeavor. Finally, any soldiers who might have died during the conflict might be said to have died in vain. There are certain minimal goals that must be attained for us to have met the demands of justice. There is a sense where the struggle is validated and our cause vindicated only if we accomplish, insofar as it remains possible to accomplish, the goal we set out to do.

The domestic analogy provides a useful model. A police officer who merely chases a criminal away from his (the criminal’s) victim and does nothing more would be remiss. Certainly he has done his job in protecting the victim, but that is only the beginning of his duties. We expect pursuit. If he cannot apprehend the criminal at the time, we expect an investigation. We expect a reasonable attempt to bring the criminal to justice because that is what ultimately leads to greater crime prevention. To extend the analogy a little further, suppose the criminal kills a police officer during the chase. If we maintain no commitment to apprehend the assailant, we devalue the life of the policeman; his death was in vain. We must take up the fight where he left off, confirming that we share in the conviction that the values he had defended are worth the sacrifice. It can’t be the case that the values are only worth his sacrifice; they must be worth our sacrifice.[19] We must show that we are willing to make the same sacrifice, that he is the representative of a collective commitment to justice; we are partners in a collective venture, all equally committed to the same goals.

In a larger sense, then, the demands of justice can’t be episodic. By this I mean that to recognize the demands of justice and insist on their prescriptivity is to be committed to bearing the burdens that come with the resistance to evil. Enforcement by exception, prosecution as mere expedience, is not justice. The very logic of the concept of justice implies a coherent system of rules and rights, enforced and protected in consistent ways by people and institutions that exist as testimony to the recognition that there is a cost to bear and values worth bearing it. Accordingly, we who would pursue terrorists across the globe must be committed to bearing the cost implicit in attaining a state characterized by the relative absence of terrorism. We seek a world community wherein this crime is under control and wherein mechanisms are in place to prevent its wholesale reemergence and to prosecute the transgressors.

The requirements of just termination in the war against terrorism are different from those in conventional war in another respect. We might envision a typical conventional war scenario where two belligerent sides meet at a negotiating table and hammer out the conditions of surrender. The defeated side agrees to give up certain activities and accept certain conditions in return for a cessation of hostilities. At the same time, it makes certain demands before it will accept the terms of surrender. The victorious side in turn makes certain concessions to its enemy so that the fighting might end. A settlement is sought in terms of justice. Very seldom is unconditional surrender demanded; rarer yet is it morally permissible. In the case of terrorism, this scenario is not typical, although clearly it is not unprecedented. The British have negotiated with the IRA, the Israelis with the PLO, etc. In any case, the important point for the current struggle is that it is hard to imagine what terms of justice could be agreed upon by the competing sides. If we conceive of terrorists as criminals, not soldiers acting on behalf of a legitimate state, we see the inappropriateness of seeking a resolution strictly along these just war lines. What activities would criminals agree to give up? They are already committed to violating justice, so what conditions of justice could we reasonably expect them to accept? The point is that room for negotiation here seems so narrowly limited as to be nonexistent. Since their activity is inherently criminal and unjust, we want them to give up that. About that there can be no negotiations. They are in the state of nature with respect to the rest of society and must be dealt with on those terms.

Any settlement with the terrorists would be wholly coercive by nature. By this I mean that there is no question of the terrorists’ putting forth demands we must accept in the name of justice as reasonable grounds for them to stop; that is, there are no just demands they could have, the nonsatisfaction of which would justify their continued criminal activity. As police coerce the criminal to subdue him, so do nations coerce terrorists to stop them. We don’t consider that there are certain conditions a murderer is justified in demanding be met before he ceases to commit murder. To think that the failure to meet certain of his demands justifies his continued reign of terror is, quite simply, to make the logical error that justice demands that he continue violating justice, an absurdity.

Although I have already rejected the notion of unconditional surrender, there is a sense where such a demand is morally relevant. From the moral perspective, each response to terrorism is a demand for unconditional surrender, at least metaphorically. We cannot morally or prudentially concede the legitimacy of terrorism under any conditions. Each encounter with terrorists is like the policeman’s encounter with the murderer. The activity of terror or murder is inherently unjust such that the terrorist (or murderer) must cease it unconditionally; no demand he could make in negotiation could in any way justify his continued murderous activity should we fail to meet the demand. This is not to say that the terrorist forfeits all his rights, even though, metaphorically, we demand his unconditional surrender. Recall that we demand the same of criminals; yet, once they surrender, they gain certain rights under the law.[20] Hence, the terrorists, as criminals, would acquire legal rights. They might be considered innocent until proven guilty, for example. But these rights are rendered within a context that nonetheless unconditionally condemns the crime. There is no question that we have negotiated a settlement about the legitimacy of the activity. We have condemned it categorically and now are affording the suspects the right to prove that they are innocent of an act that remains a crime. If they are found guilty, negotiations in the relevant sense (less plea bargaining, for example) will not ensue.

Conclusion

Terrorism is a menace that shall not soon leave us. It threatens our lives in pervasive ways. Such a threat assails even our moral bulwarks; and it is at times of gravest extremity when we must most zealously guard and cherish our integrity. For in the end it is our integrity that is under the severest assault. We face a challenge of our deepest values, and we cannot capitulate in the face of such moral coercion. So I have fired a volley in defense of our profoundest human ideals, offering a conceptual apparatus that both explains and proves legitimate our deep intuitions about the justness of our response against this most heinous of evils. My hope is that a clearer understanding of the moral reality of the war against terrorism will yield consistently appropriate and ethical responses to this plague upon humanity.

NOTES