On the Moral Importance of Noncombatant Immunity


Michael A. Carlino





I. Introduction


The world did not change on September 11, 2001; the felling of the World Trade Center and the attack on the Pentagon altered not the ontological nor epistemological state of world affairs. The foundations of justice and truth were not damaged nor destroyed—for such ideals ought to be independent of world events, not altered to suit them. What changed was the naïve American belief in its own invulnerability—a belief partially perpetuated by America’s geographic isolation, which had helped to insure that the United States had not been directly attacked since Japan’s incursion upon Pearl Harbor. Commensurate with this epiphany has been the philosophic rejection or at least extensive revision to the once prevailing notions within Just War Theory (JWT).  Unlike the former revelation, the latter was not as sudden as the attacks themselves. Since the collapse of the bipolar world some twelve years ago, America has engaged in an extraordinary number of military operations. The pursuit of the moral justification of these, which has at times been rather opaque, sowed the seeds for change.1 Now as American foreign policy metes reprisals and attacks as part of its Global War on Terror, the rules of war, once rigidly demanded by the cosmopolitan world, are being arguably set aside by philosophers as they cast new models and theories in an attempt to justify the growing trends of pre-emptivism and unilateralism.


            Such ethical revision should come as no surprise. The current threats existing in the world are argued to be qualitatively, not simply quantitatively, different than their predecessors in that the asymmetric warfare they wage, which is marked by a newfound ability to infringe upon nations’ rights with catastrophic effect.2 As such, the changing nature of war speaks against the immutability of the “Westphalian model” or Walzerian “legalist paradigm” notion of Just War Theory; certainly, many aspects need to be re-examined.3,4 However, the core ethical principles providing the foundation for any tenable conception of Just War Theory, the most fundamental of these being basic human rights, remain as immutable as ever and must not be compromised.


Unfortunately, even the sanctity of basic human rights is potentially threatened by the predominant emerging theme in current Just War Theory—the attempt to provide justification for non-defensive uses of force. The problem is that any argument for a doctrine of pre-emptivism ultimately must appeal to consequentialist ideas and intuitions if it is to succeed; yet in doing so, it invariably treads upon human rights. One cannot seriously advocate rights while simultaneously propounding consequentialism.5 To do so ultimately requires sacrificing rights to the demands of moral calculus, which is nothing more than hypocrisy. Nowhere is this disturbing trend more obvious than with regard to the infringements of non-combatant immunity in the name of supposed military necessity, and it is upon this aspect that I wish to focus.


II. Noncombatant Immunity and a Soldier’s Right to Kill


The idea of noncombatant immunity is grounded upon the acceptance of basic human rights. Basic human rights, though itself an admittedly vague term witnessing continued disagreement on its constituent members, logically stems from each person’s autonomy and moral agency. If such rights exist at all, then necessarily inclusive among them must be the right to life as it rationally commands primacy with respect to moral agency. It follows then that if one accepts a notion of basic human rights, one must concede that all moral agents possess at a minimum the right to life. I take the existence of such rights as self-evident and will not offer any further argumentation for their existence. If one rejects rights out of hand, one need not read on.


It must be noted that the right to life is not a single claim in itself but is rather a cluster-right containing rights, privileges, certain immunities and claims to noninterference. 6 As such, the right to life is inalienable only in the sense that “others lack the power to make one cease to have it, and thus for one to have immunity against others in respect of it.”7 Inalienability with regard to the right to life need not extend to a stronger interpretation holding that a person cannot make himself cease to have the right by any means at all. 8 This is clearly not the case since combatants voluntarily give up at least a part of their right to life—the right not to be killed by other combatants—in order to gain the right to kill.


The aforementioned right to life serves as the foundation for the moral distinctions drawn among the spectrum of actors in conflict. In a moral sense, a broad division still exists between combatants, those who actively fight, and noncombatants, those who do not. The arguable inversion in the nature of war has convoluted or at least added to the complexity of traditional terms of Just War Theory, particularly across the combatant/noncombatant spectrum. 9 Refining these terms is a discourse unto itself, and rather than ignite a potential firestorm with a superficial discussion, I will only briefly elucidate and hopefully limit my enquiry to uncontentious categories.


It remains the case that soldiers serve in militaries fully knowing their lives can be subject to greater risk than their fellow citizens. With the onset of hostilities, soldiers become combatants and are thus imbued with a fundamentally different moral status than noncombatants. The reason for the difference involves an exchange of rights between combatants—namely the rights to kill and be killed. Traditionally, soldiers from both sides, who were willing to fight and die for the defense of what they consider essential values worthy of such import, were considered legitimate combatants. For US soldiers, these values include those of the liberal democratic tradition such as life and liberty. 10 When states decide to enter into hostilities in defense of their respective values, service members operate on a good faith principle regarding their country’s intentions, namely that the intent is the defense of the values. In other words, the moral responsibility of engaging in war is a jus ad bellum issue resting squarely with the political authorities of the state—be they authoritarian or democratic in nature—and not on the soldiers prosecuting it. Hence, legitimate combatants as a general class can be considered in the absence of jus ad bellum concerns.11


Though legitimate combatants do not choose the wars involving their states, they do fight in them against what they believe constitutes a legitimate threat to the preservation of their values—the enemy combatants. At the same time, they know that the enemy’s actions and beliefs mirror their own, differing only with regard to the values in question. Because they have this shared epistemological insight, combatants also share the moral responsibility for posing an imminent threat to one another. Assuming that combatants have no other recourse but fighting to protect these values when threatened as such, combatants are not only allowed, but in fact, are obligated to use force. Thus, combatants on both sides of a war enjoy moral equivalency since they share the same moral obligation—the defense of their nation’s values. It follows then that combatants are not considered criminals for fighting in a war, even if they are fighting for the “wrong side,” since they are not responsible for the jus ad bellum decision. 12 Soldiers need concern themselves primarily with adherence to the tenets of jus in bello, so that in fighting the good fight, they cannot be considered murderers or morally reprehensible for killing in combat. To dissent and consider soldiers fighting for the “wrong side” murderers is grossly counterintuitive and ultimately untenable upon any reflection whatsoever. 13


It is important to note that obtaining combatant rights necessitates the commensurate reduction in the stringency of the combatant’s right to life. In other words, the combatant no longer has a stringent claim that he not be killed. After all, combatants have the right to kill their foe, but their foes concurrently have the right to kill them. Thus, these two rights are mutually dependent. The loss of stringency regarding the combatant’s right to life also entails that a combatant is not safeguarded by an absolute prohibition against a superior’s decision to jeopardize his life for mission accomplishment or the nation’s decision to deploy him into combat when the vital interests of a nation are threatened. Thus, the combatant’s right to life is no longer stringent.


At a basic level, this principle still holds true especially with regard to soldiers fighting for the United States. However, considerations brought into play by the vast array of current challenges posed by rogue states, non-state actors, terrorists and guerillas to name a few have added newfound complexities. For instance, the Taliban government in Afghanistan was arguably illegitimate or a rogue state which in turn jeopardized the status of those fighting in support of it. As the US invaded the country in pursuit of al Qaeda members, who were terrorists, it liberally applied the same term to every member of the Taliban itself. Despite the aut bibat aut abeat mentality, it is counterintuitive to think that everyone fighting in support of the Taliban had no moral right to do so and was engaging in a criminal action by supporting what he might have held as a legitimate government.14


The post-war peacekeeping operation in Iraq offers a second example of the evolving complexities. Whether or not the invasion of Iraq was morally justified, it was traditional in the sense that it was a war between states.15 Since Saddam Hussein’s fall, the occupying army is now fighting an undefined foe no longer state sponsored. Though it could be argued that the insurgents have a right to resist foreign occupation, their adoption of wanton terrorism betrays any sense of moral value in their effort and negates any legitimacy as to the assertion of their combatant rights. 16 Thus, legitimate combatants are not fighting against their moral equivalents but instead against criminal elements.


What should be clear is that the moral status of a legitimate combatant is unaffected by any change to that of his enemy, because the legitimate combatant’s right to kill stems from a theoretical exchange of rights. Those intentionally outside this exchange who lack the right to kill in this formal sense are merely criminals who should be brought to justice. Though the distinction is a moral one, the gradations of combatancy have become linguistic victims of a propensity for litigiousness as evidenced by prisoners of war held in Guantanamo though failing to qualify for Geneva Convention rights. What actually changes in these types of situations is not the moral status but the amount of force and violence a combatant can use. The apprehension of criminals does not give license to the indiscriminant use of lethal force. If terrorists or criminals lack the right to kill, they commensurately lack the right to be killed in the same manner as combatants, entailing that only the appropriate amount of force required to apprehend them be used, which of course may be lethal in some cases. Obviously, this is an area that Just War Theorists must now address.


In contrast to combatants, noncombatants do not participate in any such moral exchange, and their right to life, which is inalienable, remains stringent. Given this difference, the noncombatant is not subject to direct attack, being targeted or intentionally harmed by combatants. Of course, my use of noncombatant here refers only to the innocent noncombatant and not the non-innocent. The broader category of noncombatants can and ought to be further sub-divided into at least the two aforementioned categories. Innocent noncombatants are those with no direct involvement with fighting the war or materially supporting the war effort. Non-innocent noncombatants, on the other hand, are those people who, though not engaged in making war by killing enemy soldiers, directly support the war effort. The paradigmatic example is workers at munitions or armament factories. In virtue of their activities while at such facilities, non-innocent noncombatants have a less stringent claim not to be killed though they still cannot be directly targeted. In other words, bombing the factory with the minimal number of workers present is much less controversial than inflicting the same number of casualties on innocents who are not engaged in a war supporting activity. The non-innocent noncombatants killed increased their own risk by engaging in an enterprise solely designed for the purpose of war. 17 Regardless, such fine grain distinctions are not critical to my thesis as I submit that in any modern conflict there will be innocent noncombatants. It is upon them that I wish to focus, and my future unspecified uses of the term noncombatant refer to the innocent variety rather than the non-innocent.


Thus, it is the inalienability coupled with the stringency of a noncombatant’s right to life that bestows upon him moral immunity from harm. Such immunity necessarily obligates the combatant to respect the inalienability and stringency of a noncombatant’s right to life; the combatant must never intend to harm or use one as a means to an end. 18 Those who use the innocent as a means to their ends, even if legitimate, commit a gross injustice, which is why they ought to be universally condemned, as in the case of terrorists. 19 This obligation to rights is particularly poignant for US soldiers since the protection of such rights are the same liberal, democratic ideals upon which the Constitution is founded.


III. The Tension of War and the Doctrine of Double Effect


            Despite the acknowledgment of noncombatant immunity, a tension remains. Modern warfare has taken combat directly into the midst of innocent civilians. Battlefields are no longer grassy plains or Maginot lines but instead are dominated by heavily populated urban sprawl. One need not look any further than Baghdad or Israel to ascertain the verity of such a claim. Arguably, the immersion into populated areas might be one of the most desirable advantages that an advocate of asymmetric warfare could obtain since such action greatly complicates matters for his opponent. The obvious problem is that any such intermingling cannot but put innocents in harm’s way. Even fully knowing the moral import of noncombatant immunity, it seems virtually impossible to prosecute a war without harming innocents.


            A possible recourse might be an appeal to pacifism to resolve the tension, but such a move seems unsatisfying. Violence is not an evil in itself, and the use of violence cannot be categorically condemned: for it is counterintuitive to consider a cat immoral for killing a mouse since it has no moral agency. What bestows moral status upon a violent act is not the violence itself. For consequentialists, justifying violence is fairly straightforward as one follows formulaic calculations proving the resultant good exceeds the bad. However, even Kantian approaches speak against a strict pacifist stance. Kant held that right actions are those whose maxims are consistent with universal laws of freedom and maintain a respect for human dignity.20 Logically it follows then that a use of force, whose maxim promotes or defends human freedom and dignity, is just. Any reformulation of the pacifist position, such as condemning only the violence of war, ultimately succumbs to similar criticism.21Thus, pacifism fails to offer a viable means of eliminating the tension.


            At issue remains the desire for a normative framework to resolve the tension created by the prosecution of war as it conflicts with the sanctity of noncombatant immunity. Usually, this framework manifests itself in some form of the Doctrine of Double Effect (DDE), which if satisfied, purports to provide a moral justification for an act that has simultaneous good and bad consequences. The philosophy behind DDE is that it is able to temper a straightforward consequential approach that would otherwise logically force one into holding counterintuitive and seemingly untenable positions. The most palatable construal of DDE is that of Michael Walzer who refines the traditional formulation of DDE by adding further restrictions against consequentialism in light of Kantian concerns regarding intent. Walzer’s construal of DDE states that an action is justified if it satisfies the following the four necessary conditions:


(1)   Legitimacy: the act is good in itself—i.e. it is a legitimate act of war.

(2)   Effect: the direct effect is morally acceptable.

(3)   Intent: the intention of the actor is good, that is he aims narrowly at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends, and, aware of the evil involved, he seeks to minimize it, accepting costs to himself.

(4)   Proportionality: the good effect is sufficiently good to compensate for allowing the evil effect. 22


A close examination reveals that the efficacy of DDE rests upon the third and fourth provisos, and it is upon these that I will now focus.


            Although many consider DDE to be the ultimate court of appeals in such matters, it remains problematically vague. The intentions of an actor, captured in the third proviso, are not epistemologically accessible, and proportionality, expressed in the fourth proviso, suffers from an inherent subjectivity in the assignment of relative values to military advantage and noncombatant injury. DDE’s ability to convincingly handle simple cases reinforces the call for its blanket acceptance. For example, the paradigmatic instance of an innocent Frenchman unfortunately wandering on the shores of Normandy at the wrong time need not have precluded the D Day invasion under DDE. Similarly, bombing the whole of Belfast to kill an IRA terrorist known to be hiding in a local pub fails to satisfy DDE and rightly so. In difficult cases, like those arising from effects-based targeting of enemy centers of gravity or the targeting of asymmetric threats like terrorists, DDE seems less reliable. Where DDE might justify the use of precision munitions to destroy a given target as part of an effects based attack, it might not prove as permissive given the same task and conditions assigned to a ground force commander.


Consider a hypothetical attack on an enemy radio station. Assume that the radio station has the capacity for dual use in that it serves as a component of the state run propaganda machine vital to the leader’s control and in theory could serve, though it is not currently doing so, as a redundant node in the enemy’s command, control and communication network (C3). Since the target is arguably legitimate and its destruction would have an acceptable effect, a precision munitions attack by strategic airpower assets intended to keep collateral damage to a minimum by neutralizing the target in the middle of the night when it is occupied by the least amount of civilians would appear to satisfy the third proviso of DDE. Questions of proportionality are problematic. The value of such targets is difficult to measure, since as discrete elements, they are components in a complex system that will not fail from only a limited number of attacks. Even so, I submit that in this example the value of the attack might be considered justifiable if the collateral damage was limited to let us say a dozen employees.


Ironically, the third proviso of DDE seems to demand that a ground force commander faced with the same task and mission conditions cannot simply destroy the structure knowing that a dozen civilians are inside, especially if he is not himself under direct hostile fire. Since the ground force commander has many options open to him, like sending soldiers in to clear the building prior to destruction, failure to mitigate risk to civilians fails the third proviso of DDE and hence cannot justify the action. Although one might challenge the over-simplicity of the given example, I submit that the disparity of risk reduction will remain when comparing precision munitions attacks to those conducted by soldiers on the ground. 23


The differing moral judgments point to a vagueness in DDE, and it is precisely this vagueness that ethical revisionists are exploiting to the detriment of noncombatant immunity. The vagueness allows intent, the third proviso, to be subjugated to proportionality, the fourth, shifting the essence of the doctrine back towards consequentialism. However, this is a mistake and undermines the very reason Walzer strengthened the third proviso in the first place.24 What bestows moral status on an act is not the resultant consequences but is instead intimately tied to intent. Intent, therefore, cannot be subjugated without risking all semblance of moral authority. 25


            Consider the following two cases. Suppose John were to offer assistance to a stranded motorist he happens to pass while driving home in a torrential rainstorm. Naturally, John thinks that he is doing a good deed by providing a temporary respite from the weather and giving the man a ride into town so that he can coordinate repairs for his inoperable vehicle. Even if it turned out that the man was an assassin who because of John’s assistance was able to successfully murder the mayor, John’s good deed would be no less good just because it was inexorably linked to a bad consequence. Similarly, if Joe randomly kills a person simply for the thrill of it, his act is no less evil if it happens to turn out that his victim was a wanted felon. Even if one holds the result of Joe’s act desirable, the act itself was still evil. Moral justification for the consequentialist is grounded in the notion of moral luck, which means that it is always contingent upon factors well beyond the agent’s span of control. Hence, such actions always lack sufficiency in bringing about any desired end.


            Though intent has moral primacy, the subjugation of it by proportionality in DDE occurs due to an equivocation of sorts: the foreseen but unintended fallacy. Returning to the example of the C3 node, the effects-based, precision munitions attack is considered to satisfy the intent proviso in DDE in virtue of the fact that smart munitions are used during hours that statistically have minimum workers on shift. Such an approach is thought to expose noncombatants to less overall risk and harm, since conventional attacks would ultimately prove more costly in terms of both combatants and noncombatants. The civilian deaths are foreseen but considered collateral and hence unintended, since they are the unfortunate byproduct of a legitimate act of war.


            However, the reasoning that allows foreseeable as unintended is flawed. Unintended implies accidental not simply unfortunate. If casualties are foreseen, they are knowingly caused and accepted to obtain some end. There is a moral difference between blowing up a bridge and having three cars full of people unexpectedly drive across at the moment of detonation and blowing up a bridge knowing that the people in the three cars on it will be destroyed. In the former case, the deaths are unintended; in the latter, there is a prior knowledge entailing a consequential calculation to offer justification. Good intent is much more sophisticated than simply possessing the ability to espouse regret over civilian deaths. It is utter nonsense to imagine that the chosen means to one’s end was unintended. Foreseeable deaths are intended. There is no room for equivocation or legal maneuvering on this point, and in virtue of this fact, they are thus immoral.


IV. Psychology and Moral Disparity


            I believe that there are two primary factors, both psychological, that have strengthened this morally regressive step of embracing consequentialism: the first is an intuition delineating innocents into enemy and friendly; the second is a belief in the primacy of force protection over noncombatant immunity. Together, these misguided ideas threaten to whittle away all of the moral progress mankind has made regarding Just War Theory in the past century resulting not a better state of peace but potentially in a world under the dictum of victor’s justice.


First and foremost, innocent noncombatants are not viewed with moral parity. Arguably, the majority of people cling to an intuition suggesting that somehow there are friendly and enemy noncombatants falling along the same lines as their combatant counterparts. The belief holds that those residing in the country of an enemy, though not a direct threat to combatants or their nation, are still the enemy. Perhaps central to this thinking is an erroneous though underlying suspicion that their relationship to enemy combatants is seemingly pernicious.


I submit that such an intuition is misguided, because it focuses on socio-political concerns while ignoring the moral ones. Though there are geographical and ideological distinctions, no such moral division actually exists. It is difficult to see how the contingent matter of nationality or spacio-temporal disposition has any moral import whatsoever. The fact that some innocents reside in an enemy state fails to delineate the moral differences between those who prosecute a war and those who only witness it. This is not to say that they could not bear any responsibility for a given war, especially when they have the freedoms to influence such decisions, as in the case of a democracy.26 Even so, this hardly constitutes grounds for the cessation of their noncombatant immunity. They are not a threat and cannot be considered legitimate targets.


Furthermore, it is untenable to hold, for example, that the citizens of Country X enjoy a moral superiority over foreigners simply in virtue of the fact that they are citizens of Country X: any such presumption of moral superiority is groundless. It would be absurd to think that one could establish some sort of equities exchange system where the traded commodity was individual worth. It cannot be the case that the life of one resident of Country X is worth the lives of ten Country Y citizens or 1000 Country Z citizens. Innocent noncombatants of all nationalities, friendly or enemy, must enjoy the same inalienable right to life, which carries the same stringency regarding noninterference, else we are not talking about rights at all.


The force of this initial fallacy exacerbates the second: the prioritization of force protection above the protection of noncombatant immunity. It has already been established that an innocent noncombatant has a stringent, inalienable right to life whereas the combatant does not. Hence, when the combatant’s actions have foreseeable negative effects to innocents, the moral burden falls upon the former to ensure that he minimizes those effects even at the cost of risking himself. This is the essence of DDE’s third proviso and the basis for Walzer’s revision. This minimization now manifests itself in the application of precision-guided munitions with smaller effects as opposed to indiscriminant, conventional weapons. However, this is hardly sufficient. Precision munitions, though reducing risks within the discrete categories, do nothing to transfer the risk from the category of noncombatants to combatants as morality demands. Soldiers, with the capacity for target discrimination, who are willing to put themselves in harm’s way for the protection of basic human rights of any noncombatant, must be the primary weapon of choice.


Consider the following: suppose a commander has a mission to eliminate a terrorist cell consisting of five prominent subjects who are located in a residential building in a small, though moderately populated town. The commander knows that sending ground forces would be very dangerous, and his men would in all probability suffer some casualties, further adding to the recent losses of some ten soldiers in the past few weeks. Given the topography, the commander also has the ability to call in a precision air strike, which would incur foreseeable innocent noncombatant casualties, suppose between five and ten, who reside in the same building. It is not unlikely that the commander would opt for the air strike given that his choice enjoys a seeming moral justification as it could arguably satisfy DDE, much as the previous example with the C3 node, as well as the legal protection afforded by satisfying his country’s rules of engagement.


Now suppose that the above commander was in the US military and that the noncombatants residing in the building were Americans. I submit that these conditions would definitely impact his course of action, and he would not opt for the precision munitions attack. Interestingly enough, I believe that the rules of engagement would have already been previously made more restrictive given the presence of innocent Americans in harm’s way. Every precaution would be taken to ensure their safety including transferring risk to soldiers. For support to my claim, I appeal to a domestic analogy. We do not place Americans at risk for the protection or the expedience of law enforcement officials: to do so would be unconscionable. Hence, the domestic rules of engagement are already very restrictive. However, this illustrates the moral disparity to which I previously alluded.


 One might contend that such domestic restraint exists because of legal prohibitions that have no international equivalent invalidating my analogy.  Unfortunately, this only hints at a deeper problem. Legality has begun to supercede morality, yet this is backwards.27 It is the moral foundation that grants legitimacy to law thus transcending any strictly legal approach. Rules of engagement supposedly purport conditions ensuring legality, but unless they are grounded in morality, they are meaningless. Impartiality guarantees justice, not legal finagling. There is simply no moral reason why nationality ought to affect the decisions with regard to the use of force in situations that threaten innocents. Unfortunately, it often does, especially as bad consequences mount. Soldiers often see themselves as not fighting for national values or basic rights but simply to protect their brothers in arms. As they see their comrades killed or wounded, it naturally becomes more difficult to remain objective. In the battle between emotionalism and rationality, the latter rarely proves victorious. The result is often a focus on force protection to reduce combatant casualties and risk to soldiers manifesting itself in more permissive rules of engagement and the use of standoff type weapons such as artillery or air strikes. Unfortunately, the increased safety has a cost: increased risk to innocent civilians. 


Ultimately, if an objective is worth achieving or a war worth winning for that matter, then the success must be worth the cost of soldiers’ lives. Intent not only justifies jus in bello actions but also is a necessary condition for the satisfaction of any morally worthy jus ad bellum construal. Thus, any just use of force must be for reasons that are worthy of soldiers’ deaths. This does not mean soldiers must die, but instead they must be willing to bear the risks of dying rather than noncombatants. To do otherwise counteracts any just reason for fighting in the first place. The focus even during combat must always remain on ensuring the safety of innocents. Again, nowhere is this point as particularly poignant than in the United States. Any war involving the US ultimately must center on the advancement of rights; any fight for the US is a fight for basic rights—including the right to life—for not only their own citizens but those of the enemy state as well.28


One might object by arguing that a nation has a positive duty to protect its own citizens whereas no such positive obligation exists with regard to others, only a negative restriction that as such is weaker. Such a sentiment might seem natural, since one tends to give moral priority according to various degrees of association. For example, it seems right that given the choice one would save his children over a stranger or a fellow countryman over an alien. Even so, any positive duty cannot be justly fulfilled if the means to such an end violate the universal duty of not harming innocents. It is simply contradictory to cause harm to people whose right to life you are obligated to protect. If a nation supports rights domestically, it would be inconsistent to violate them internationally.


A final, desperate appeal might be made along the same lines as the supreme emergency argument: the destructive nature of today’s asymmetric threat is simply too serious for passive observation and instead must be actively eradicated, else millions not just thousands could die from a single terrorist act.29 The argument simply stated is that the current threat is so grave that it necessitates risk to some for the betterment of all. Hence, Just War Theory must adapt, especially with regard to noncombatant immunity, to allow the swift prosecution, to include pre-emptivism, against any fight against terror to include pre-emptivism.


Such reasoning should come as no surprise though. People have a rich history of philosophizing about another’s toothache but rarely are their views binding when they suffer their own orthodontic malaise. The growing clamor to abandon longstanding philosophic tenets is directly attributable to the current threat putting those doing the philosophizing at risk. However, terrorism is not an exclusive 21st century problem; it has a longstanding history and will always be an immoral option open to those struggling against some greater force. It is true that terrorists have more potent means of terrorizing. However to allow modern warfare, including any fight against terrorism, to impinge on freedom, especially as freedom manifests itself in the idea of noncombatant immunity, betrays the entire foundation of the liberal democratic world: basic human rights. Simply that it is one’s own security that is threatened and not another’s does not constitute grounds for exception. Furthermore, the fact that a threat exists is not the same as being threatened. Pre-emptivism, like all of its consequential brethren, rests on moral luck for justification, which then leaves justice at the mercy of factors sometimes unpredictable or unreliable.


V. The Moral Road Ahead


Freedom is not free. It entails risk, and ironically adheres to what I will call the Inversion Principle: the active elimination of risk to a given freedom, though intending to promote the freedom, actually has an inverse effect in that it eliminates the freedom itself. For example, free speech, if truly free, will ultimately hurt some people’s feelings when exercised. However, the stronger the measures imposed to keep others from saying unpalatable utterances, the less free the speech. The same logic applies with regard to liberty: the more one willingly violates the liberty of others, even in the name of liberty, by violating say the noncombatant immunity of others, the less coherence there is to basic human rights. The world must realize that the threat of terrorism cannot be entirely eliminated unless freedom is to be sacrificed for a different form of tyranny.


The use of force is becoming not a regrettable last alternative but increasingly the preferred instrument of power with regard to international politics. The seeming efficiency of execution combined with relatively few combatant casualties has cast a seductive and enticing lure in political decision making. Furthermore, professional militaries absorb the hardships of such actions, which then shelters citizens from the actual horrors of war. However, war is never good. Even when seemingly justified, it represents a grand tragedy and a failing of humanity.


As the world now engages terrorism globally, we cannot be so eager to cast aside all of the moral progress we have made. Terrorists are criminals, nothing more. Logically, it seems that the apprehension of criminals, such as terrorists fighting in support of the insurgency in Iraq would fall under the same sorts of rules of engagements governing police-type actions, not the more permissive rules found when engaging in maneuver warfare in sparsely populated areas. Thus, the war on terrorism is not a war at all but rather a policing action on a grand scale, which the rules of engagement and moral justifications must reflect. Terrorists are evil precisely because they violate basic human rights of innocents. To succeed against them does not necessitate the willingness to do the same. If anything, it requires exactly the opposite, else they have already won.






1 The bipolar world existed during the cold war when the two world superpowers, the US and USSR, influenced world politics based on their strategy towards one another. This ended shortly after the fall of the Berlin Wall and subsequent collapse of USSR.

2 See Tony Pfaff, “Non-combatant Immunity and the War on Terrorism,” accessed 23 September 2003; available from http://www.usafa.edu/isme/JSOPE03/Pfaff03.html. His contention, to which I strongly object, is that such a threat necessitates less restriction on force and subsequently more harm to innocents in the name of global security.

3 The Treaty of Westphalia, 1648, marked the end of the Thirty Years’ War and significantly contributed to the idea of nation states and states’ rights.

4 See Michael Walzer, Just and Unjust Wars, Basic Books, 1977, pp 61-62.

5 I realize that consequentialism has many forms. Some, especially versions of rule utilitarianism, attempt to accommodate rights. However, my contention remains. Theories are based upon some kind of assumption. Every version of consequentialism must hold that right action involves some kind of maximization process of the good. In doing so, they invariably conflict with rights. If rights were to be deemed more important than the consequences, be it long or short term, et cetera, then the theory is no longer consequential. Hence my criticism applies.

6 See Judith Jarvis Thompson, The Realm of Rights, Harvard University Press, Cambridge, 1990, p. 285.

7 Ibid, 283.

8 For an excellent defense of this claim, again see Judith Jarvis Thompson, The Realm of Rights.

9 The inversion to which I refer is a suggestion that the primary execution of war is moving away from conventional doctrines towards unconventional methodologies.

10 It should be quite apparent that these values accord with the notion of basic human rights as previously discussed.

11 Of course, the higher the echelon, the more blurry this distinction becomes since in many militaries, high level officials do influence national policy. For my purposes though, I will ignore such cases.

12 It is interesting to note that non-state actors, like terrorists, are entirely outside this framework.

13 To wit, German soldiers were not held responsible for the crime of aggression of their state during the Nuremberg trials.

14 Furthermore, it is not clear that every person fighting against the US in Afghanistan was a Taliban per se. The notion that many were ordinary citizens recruited just before the invasion is more likely.

15 I defer on the jus ad bellum issue since regardless of the interpretation; US and Iraqi soldiers were arguably both legitimate combatants at the outset.

16 An interesting issue arises here, although it is beyond the scope of this paper. With the fall of Saddam and the government of Iraq, do the insurgents still have a right to resist? The pre-emptive nature of the war certainly complicates matters. However, the apparent resort to immoral means condemns them regardless, despite the possibility of a justified end.

17 See Michael Walzer, Just and Unjust Wars, Basic Books, 1977, p. 146, for a discussion of this point.

18 See Immanuel Kant’s Formula of Humanity for a discussion of the immorality of people as means, in Groundwork of the Metaphysic of Morals, trans H.J. Paton, Harper and Row, New York, 1964. Although using people as a means is a rather complex and philosophically sophisticated concept, it might be best understood by those unfamiliar with Kant as treating people in a way to which they would not consent, such as torturing, harming or stealing from them.

19 This is the primary condemnation of terrorism: that it uses indiscriminant harm against innocent people as a means of influence. However, many other acts, though not universally condemned, are similarly evil such as the demolition of homes belonging to families of convicted or even suspected terrorists.

20 See Kant.

21 Pacifism is by no means an all or none proposition. There are many interpretations that allow for varying degrees of self-defense. However, any argument that supposes violence in war to be different in kind rather than degree when contrasted to violence of a domestic police enforcement sort makes a category error, which lacks a tenable supporting argument.

22 Walzer, 153-155.  Walzer improves the doctrine with his addition the phrase ‘and, aware of the evil involved, he seeks to minimize it, accepting costs to himself.’

23 The point of this example is simply to suggest disparity of interpretation, which arises with DDE. Any attempts to criticize or sharp shoot specifics quite misses the point.

24 Again, see Walzer.

25 I concur with Kant’s view that right acts are those whose universalized maxims are consistent with freedom and human dignity.

26 See Gray’s Principle in Walzer, p. 298.

27 The FBI’s current definition of terrorism speaks to this point. Terrorism is defined not as an immoral use of force but as an unlawful use of force.

28 This is why defending humanitarian interests is part of the National Security Strategy.

29 The supreme emergency argument is a fine example of leaving a consequential escape route when morality becomes too demanding. The argument holds that given a situation so horrific for humanity itself it becomes allowable to violate morality in order to prevent it. Again see Walzer.