A Moral Inquiry into the Killing of Noncombatants

Presented at The Joint Services Conference on Professional Ethics (JSCOPE) 2004

Terrorism and Response:

A Moral Inquiry into the Killing of Noncombatants

Camillo C. Bica, Ph.D.

School of Visual Arts, New York

cbica@sva.edu

Inherent in modern war-making practice is the conviction that there is a significant moral difference between killing innocent civilians in an attack such as that on the World Trade Center or on a bus filled with college students and killing noncombatants during a military response to such an attack. This conviction is clearly demonstrated in a myriad of Israeli reprisals against Palestinian terrorist groups such as Hamas and in the United States war in Iraq, Afghanistan, Kosovo, and Vietnam. It is reflected in the language used to describe the noncombatant deaths, the value laden term "terrorism"1 in the case of the former, and the morally neutral term "collateral damage" in the latter.

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

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

Some Assumptions about Rights

A right is a claim against others and the correlative of a duty that others respect that right. A privilege is the absence - - or lack - - of a duty.3 Among the rights that human beings enjoy are the rights to life and liberty - - fundamental human rights - - and to live in a nation that enjoys territorial integrity and political sovereignty - - rights as citizens.4 Moral patients, i.e., all human beings, may assert these rights - - act in self, other, or national defense - - should their rights be violated or threatened. Whatever their origin, whether by nature or convention, rights are an assertion of human dignity, an integral part of our moral world, and presupposed in the very possibility of a moral community. These rights find expression as moral principles in Kantian-like imperatives of respect for and the intrinsic worth of persons, and within a myriad of international agreements and conventions of war. Rights and their correlative duties are, in my view, not absolute. Rather, they are prima facie, and in the event of conflict, may be overridden in behalf of a more stringent right or duty.

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

Distinguishing War from Terrorism

War, even as a response to terrorism, is rule governed. According to Just War Theory7 and a myriad of international agreements and treaties, war is evaluated according to whether established criteria are satisfied.8 Traditionally, these criteria are divided into two categories, the jus ad bellum criteria - - governing when war may be utilized - - and the jus in bello criteria - - governing how war is prosecuted. While there are several criteria in each category, the two most relevant to this essay are the jus ad bellum criterion of just cause, i.e., as a response to aggression, and the jus in bello criterion of Discriminating and Affording of Immunity to Noncombatants (henceforth the Criterion of Discrimination or the COD), i.e., not harming and/or killing noncombatants.9 War, then, is judged twice and these criteria are conjunctive rather than disjunctive, i.e., both sets of criteria must be satisfied if war is to be just. It is important to note that the COD, as traditionally interpreted, is Deontological rather than Teleological. That is, killing noncombatants is morally wrong - - intrinsically evil - - and, therefore, absolutely prohibited, regardless of particular situational variations or consequentialist considerations of "greater good"- - calculations of the relative proportion of nonmoral good to evil that doing or refraining from doing the act promotes in the world.

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

Moral Permissibility and Sanctions

Given the moral stringency of the Just War Theory’s Criterion of Discrimination, I offer the following principles as a general guideline for determining permissibility, liability, and culpability for one’s actions in war.

The Moral Permissibility Principle (MPP): an act of war is morally permissible within the context of an otherwise Just War (that is, the Jus Ad Bellum criteria have been satisfied), if and only if the act does not violate or pose a real and immediate threat to violate the right to life of noncombatants - - does not kill noncombatants.

The Moral Culpability Principle (MCP): Moral culpability for an act of war, i.e., moral blame and condemnation - - being subject to retribution and punishment after the fact - - is warranted only as a consequence of acting impermissibly knowingly and with free will and consent, i.e., knowingly violating or posing a real and immediate threat to violate the right to life of noncombatants.

The Moral Liability Principle (MLP): Liability for an act of war, i.e., the forfeiture or override of the agent’s rights or immunity and being the object of the justifiable use of violence and deadly force in self or other defense - - is warranted only as a consequence of culpably or non-culpably acting impermissibly - - i.e., knowingly, unintentionally, or accidentally violating or posing a real and immediate threat to violate the right to life of noncombatants.

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

The Doctrine of Double Effect

The DDE has evolved as a means of resolving dilemmas in which an absolute moral principle prevents actions for which there are strong, even morally compelling, reasons. First developed by Catholic casuists during the Middle Ages, the DDE, it is alleged, achieves a resolution by morally differentiating the intended effects of an act from those that are unintended, though foreseen. Thomas Aquinas observes,

". . . nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. Now moral acts take their species according to what is intended, and not according to what is beside the intention, since this is accidental."16

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

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

"A person may licitly perform an action that he foresees will produce a good and a bad effect provided that four conditions are verified at one and the same time:

(1) that the action in itself from its very object be good or at least indifferent;

(2) that the good effect and not the evil effect be intended;

(3) that the good effect be not produced by the means of the evil effect (non-instrumentality);

(4) that there be a proportionately grave reason for permitting the evil effect (proportionality)."17

Applying the DDE Resolution

As noted above, it is through the application of the DDE that dilemmas posed by a conflict between absolute moral principles and other important values are often resolved. To unpack the moral subtleties and implications of the DDE resolution, consider the following moral dilemma posed by the conflict between accomplishing an important military goal - - military necessity - - and the moral principle requiring that noncombatants be discriminated and afforded immunity in war - - the COD

Terrorist Conference: In response to a particularly heinous terrorist attack in which three thousand innocent civilians were killed, the nation of Kovinia has declared war on terrorism, specifically upon the professed terrorist organization al Dumas. Al Dumas has claimed responsibility for the attack and has vowed to continue the slaughter until their religious and political goals are achieved. No one doubts their resolve or their capacity to do so. The Kovinian intelligence agency has received information from reliable sources that, in about two hours, at a specified location in the center of the city of Montagne, the best trained and motivated terrorists will meet with the al Dumas leadership to discuss and plan future, even more devastating, attacks upon the Kovinian capital city. After considering all military options, the Kovinian leadership concludes, given the time restraints and availability of forces in the area, that air bombardment is the only militarily effective means of neutralizing the terrorists. Captain John is a pilot in the Kovinian bomber group sent to attack the terrorists. As he approaches the target, he realizes, that should he and the other pilots complete their mission, despite the sophistication of their satellite guided weaponry and their willingness to exercise "due care" and accept greater risk by flying at a lower altitude, many Montagnian civilians living in this busy and densely populated area of the city, will be injured and killed. While Captain John appreciates the importance of following orders, of ending terrorism, and of saving untold numbers of future victims of terrorist attacks, he also understands the moral and legal principle of noncombatant immunity and his obligation not to harm and kill noncombatants under the COD. What should Captain John do in this situation?

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

Observations on Terrorist Conference

In Terrorist Conference, the Montagnians have done nothing to warrant override or forfeiture of their right to life and immunity, i.e., they are not terrorists, nor do they support terrorism, nor are they linked in any way to the terrorist attacks. Consequently, moral agents, including Captain John, continue to have a duty not to kill them. Yet, the DDE, allegedly, renders the attack on the conference morally permissible. It does so by "overlooking" the rights violation,20 focusing, instead, upon the moral distinction between what is intended (the good effect) - - ending terrorism and saving the lives of future victims - - for which Captain John is responsible, and what is unintended though foreseen (the evil effect) - - the deaths of the Montagnians - - for which he is not responsible. Further, since, under this interpretation, Captain John is acting permissibly in bombing the conference he ought warrant neither culpability nor liability for his act. That is, Captain John suffers no moral condemnation, forfeiture of rights, nor loss of claim against others, including the Montagnians, that they not kill him. In fact, he should probably be awarded a citation for his courage and moral upstandingness.

Terrorist Conference from Another Perspective

Consider next a modification of Terrorist Conference that shifts the focus from Captain John’s perspective, the potential bomber, to the Montagnians, the potential victims.

Terrorist Conference Victim’s Perspective (TCVP): This case is identical to Terrorist Conference except, in this scenario, the Montagnians, living in proximity to the conference site, become aware that an attack is imminent. They realize, should Captain John bomb the conference, due to the crowded urban environment in which they live, they would be unable to escape injury and death. While appreciating the evils of terrorism and sympathizing with the plight of future victims, they are unwilling, however, to sacrifice themselves in their behalf. Consequently, noting Captain John’s intent to carry out his mission, the Montagnians repeatedly radio him not to drop his payload. Having already been convinced by DDE reasoning that it is permissible that he does so to end terrorism and save future victims, the Montagnian pleas have gone unheeded. As Captain John begins his approach to the target, the Montagnians prepare to fire their SAM (surface to air) missiles. What should the Montagnians do in such a situation?

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

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

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

Acts of Collateral Violence

Where the DDE resolution goes wrong in such cases as Terrorist Conference is in the moral importance it assigns to the directing of intent. That is, it relies primarily upon the intended effect of the act as proclaimed by the actor, rather than taking into account the entire set of foreseen probable effects, as the crucial moral consideration for determining permissibility and moral value. Under the DDE resolution, since Captain John proclaims his intent is only to kill the terrorists, the good effect, it alone becomes determinate of the permissibility and moral value of the act of bombing the conference. Consequently, the foreseen evil effect of killing the Montagnians becomes somehow abrogated and moral responsibility for their deaths somehow diffused.

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

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

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

Distinguishing Accidental Killing and Unintentional Killing from Collateral Violence

There is an important moral difference in war between killing noncombatants during (a) the bombing of a military bridge in a very remote location that has hitherto been used exclusively by terrorist traffic; (b) the bombing of a bridge on the outskirts of a town that is used primarily by the terrorists but occasionally by civilian traffic after repeated leaflet drops warning the civilian population of the impending attack; and (c) the bombing, without warning, of a bridge in the center of a busy metropolitan area that serves as a major thoroughfare for civilian traffic. The moral difference between these scenarios hinge upon the likelihood of noncombatants being killed in the attack, the precautions implemented to prevent noncombatant deaths, and a reasonable interpretation of intent.

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

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

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

The Warrant Theory of Permissibility

Given the moral importance of the JWT’s criterion of discrimination and my rather stringent interpretation of moral permissibility, doesn’t the possibility, however remote, that noncombatants may be accidentally and unintentionally killed in an act of war, together with our predilection not to act immorally, render all war morally unacceptable? If we can never be certain that an act of war is morally permissible - - that noncombatants will not be killed - - must we either embrace an Absolute Pacifism or abandon morality altogether?

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

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

Prima Facie and Actual Duties

My argument against the DDE resolution in cases of collateral violence is contingent upon an interpretation of the COD that views rights and duties as absolute. However, as noted above, rights and their correlative duties are, in my view, not absolute, but prima facie. Prima facie rights and duties apply without exception - - are absolute - - unless and until they are overridden as a result of a conflict with a more stringent right or duty - - the actual right or duty. Consequently, it is conceivable that in some situations of conflict, a prima facie right to life and duty to respect that right may be overridden and the right bearers, in this case the noncombatants, may be morally targeted, injured, and killed. To determine whether this rejection of absolutism constitutes an abandonment, or at least a weakening, of the COD, consider the following parameters for the practical application of prima facie rights theory to acts of war.

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

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

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

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

Further Clarification

To be more concise, moral dilemmas such as that presented in Terrorist Conference are not, strictly speaking, instances of conflicting prima facie rights. While human beings possess a right to life and not to be harmed unjustifiably, they do not possess the right to use all and every possible recourse available in asserting those rights. The use, therefore, of a particular Defensive Response Alternative (DRA) is not, in and of itself, a right. So to morally condemn one DRA - - bombing the conference - - is not to override nor ignore an individual’s or group of individual’s - - the Kovinian’s - - right to life and not to be harmed unjustifiably, but merely, for the sake of fairness, to recognize that others - - the Montagnians - - possess similar rights as well. Further, in ruling out bombing the conference as a morally viable DRA, one is not condemning the Kovinians to passively submit to injury/death, but is instead, requiring them to select another DRA. Not every act of self/national-preservation is a morally appropriate act of self/national defense. Deadly force is one of several possible DRA, and one which, if it is to be a moral act of war, must be subject to the rather stringent restrictions and controls of the COD. It may be the case, then, that potential responders may be morally obliged to forego the utilization of a particular act of war (the bombing of the conference) and opt, rather, for another DRA to assert their rights, even if such an DRA proves riskier, costlier, less politically expedient, more time consuming, etc. And, in a very unlikely scenario in which a particular act of war is the only DRA available, it may well be the case that the potential victims will be morally required to acquiesce to the aggression, i.e., to suffer a rights violation without "effective" response.

A Practical Concern

One may object that such a strict interpretation of the COD as I have presented in this essay is unrealistic as it places unacceptable restrictions upon military necessity, that is, upon a nation’s ability to protect its sovereignty, territorial integrity, and its citizenry. Consequently, though morally well-intentioned, it undermines Just War Theory and encourages War Realism, that is, an abandonment of any application of moral criteria to war. This objection fails, I believe, as it implies that either morality must accommodate the dictates of military necessity, to include the killing of noncombatants, or face total irrelevancy. In doing so, it views morality, in its application to acts of war, as a tactic of advantage, i.e., as having relevance only should belligerent nations find it conducive to their national and military interests.

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

Conclusions

No one denies that in war and the response to terrorism noncombatants may be accidentally and/or unintentionally killed. My argument against the DDE is not intended to refute that possibility. It is also tragically clear, however, that the DDE resolution has become so commonplace that its legitimacy is taken for granted and rarely questioned. On April 8, 2003, for example, in an attack strikingly similar to Terrorist Conference, a U.S. warplane dropped four 2000 pound Joint Direct Attack Munitions (JDAMS) and blasted a smoking crater 60 feet deep in the busy, densely populated, well-to-do, al-Mansour section of western Baghdad in the hope of killing Saddam Hussein and his sons. While Saddam Hussein and his sons escaped injury and death in the attack, some sources estimate the noncombatant deaths at fourteen, some of them children.26

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

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

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

Endnotes

1. Some thinkers have argued quite forcefully against terrorism as intrinsically unjustifiable or unjustifiable by definition. See for example, Virginia Held, "Terrorism, Rights, and Political Goals," in Violence, Terrorism, and Justice, R.G. Frey and Christopher Morris, ed., Cambridge University Press, 1991

2. The U.S. Air force defines collateral damage as the "unintentional damage or incidental damage affecting facilities, equipment or personnel occurring as a result of military actions directed against targeted enemy forces or facilities." United States Air Force Intelligence Targeting Guide, Air Force Pamphlet 14-210 Intelligence, 1 February 1998, p.182.

3. For perhaps the foundational work on rights, see Hohfeld, Wesley N., Fundamental Legal Conceptions, ed. W.W. Cook (New Haven: Yale University Press, 1919). For an insightful discussion of Hohfeldian thought, see Thomson, Judith J., The Realm of Rights, (Cambridge: Harvard University Press, 1990).

4. I choose to term these "the rights of citizens" rather than the "rights of nations" as it is my view that rights are a function of individual human beings rather than of collective entities such as a nation.

5. For an in-depth discussion of the criteria for the justifiable use of violence/deadly force in self, other, or national defense, see my Just War Theory and a Practical Pacifism, Ph.D. diss., City University of New York, 1995, pp. 15-36.

6. See among others, Judith Jarvis Thomson’s, The Realm of Rights, pp 366-367.

7. I will accept, without argument, the legitimacy of Just War Theory and that the immorality and illegality of harming and killing innocents is self-evident. I have argued elsewhere for a rights-base foundation for both. See my Just War Theory and a Practical Pacifism, Ph.D. diss., City University of New York, 1995, pp. 15-37.

8. For an interesting and encompassing examination of the rules of war, see, among others, Robert Holmes, On War and Morality (Princeton, N.J.: Princeton University Press, 1989), p. 146, and James Turner Johnson, Just War Tradition and the Restraint of War, Princeton, N.J.: Princeton University Press, 1981.

9. While non-innocent noncombatants, such as munitions workers, some politicians, etc., may be liable to be harmed and killed in war, all innocent non-combatants, henceforth to be referred to as "noncombatants," must be afforded immunity.

10. Of course if enough jus ad bellum criteria are not satisfied the war status may be jeopardized.

11. Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977). P. 21-47.

12.Crimes against humanity are defined as, "murder, extermination, enslavement, deportation, and other inhumane acts against any civilian populations, before or during war; or persecutions on political, racial, or religious grounds . .." Article VI of the Charter of the International Military Tribunal, U.S. Army Pamphlet 27-161-2, International Law, Vol. II, pp. xi-xvi.

13. See for example, Jenny Teichman, "How to Define Terrorism," Philosophy 64, 1989, pp. 505-517.

14. Though not sufficient.

15. I see no reason why, if the violation of the COD becomes policy, that a war may not degenerate into slaughter, genocide, massacre and butchery - - that war status may be lost. Based upon this observation, one may argue that the carpet - - "terror" - - bombing of cities that characterized WWII warranted a forfeiture of war status.

16. Quoted in Paul Ramsey, War and the Christian Conscience, (Durham, N.C.: Duke University Press, 1961), p. 39.

17. Mangan, Joseph, "An Historical Analysis of the Principle of Double Effect," in Theological Studies 10, p. 43.

18. DDE resolutions have become so common that the United States Air Force and various study groups and "Think Tanks" have developed "macro" and "standard" models for determining expected collateral damage. "One such model is TANDEM (Tactical Nuclear Damage Evaluation Model), developed by the RAND Corporation. This program takes target data such as location and the probability of damage to targets and population centers, vulnerability numbers, inter-relation maps, weapon assignments (yield, height of burst, CEP, etc.) and other factors as inputs. TANDEM is analyzed, and outputs may indicate target damage, collateral damage, and bonus damage. USAF Intelligence Targeting Guide, United states Air Force Pamphlet 14- 210 Intelligence, 1 February 1998, 182-3.

19. Thus satisfying what Michael Walzer regards as a further criterion for the application of the DDE. See Just and Unjust Wars, pp. 151-159.

20. The fact that Captain John is relieved of responsibility for the evil effect of his act, has lead some to believe that no rights have been violated. See Jeff McMahon, "Self-defense and the Problem of the Innocent Attacker," Ethics 104, no. 2 (January 1994). While I will defer a discussion of this complicated issue to another occasion, Judith Jarvis Thomson argues quite convincingly that " . . . fault is not required for the violation of a right." Judith Jarvis Thomson, "Self-defense" in Philosophy and Public Affairs 20, no. 4, (Fall 1991), p. 301.

21. An appropriate term, I think, since the innocent victims of DDE resolutions (such as the Montagnians in Terrorist Conference) are rhetorically dehumanized by being collectively designated as "collateral damage." For a more detailed exposition of collateral violence see my, "Collateral Violence and the Doctrine of Double Effect," in Public Affairs Quarterly 11, no.1, January 1997.

22. This case clearly illustrates the moral difference between justifiability and excusability.

23. Alan Gewirth, Human Rights: Essays on Justification and Applications, University of Chicago Press, 1982, pp. 231-232.

24. The argument for a causal connection between Captain John’s not bombing the conference and the deaths of the Slovinians, I believe, does not hold up in this situation. According to the Principle of Intervening Action " . . . when there is a causal connection between some person A’s performing some action (or inaction) X and some other person C’s incurring a certain harm Z, A’s moral responsibility for Z is removed if, between X and Z, there intervenes some other action Y of some person B who knows the relevant circumstances of his action and who intends to produce Z or who produces Z through recklessness. The reason for this removal is that B’s intervening action Y is the more direct or proximate cause of Z and, unlike A’s action (or inaction), Y is the sufficient condition for Z as it actually occurs." Alan Gewirth, Human Rights, Essays on Justification and Applications, University of Chicago Press, 1982, p. 229.

25. Robert Holmes makes the point well. He writes, "To ask whether it is wrong to kill innocent persons in wartime might be to ask whether it is ever in fact right, given the world as it is or likely to be. Or it might be to ask whether it is right under any conceivable circumstances, however absurd or contrived . . . One could believe that it is never right to kill innocent persons in a world as we know it but concede that if the world were radically different that world change." Robert Holmes, On War and Morality, p. 195.

26. The Decatur Daily News, April 8, 2003

Copyright 2003

Camillo C. Bica