Upholding the Principle of Distinction in Counter-Terrorist Operations: A Dialogue

Abstract

Asa Kasher and Amos Yadlin have recently argued for a revised principle of distinction under which states should prioritize the protection of their own soldiers over that of noncombatants in certain combat scenarios. The situations that they envision are those in which a state's army is forced to fight terrorists on terrain which is not under the state's effective control. Kasher dramatizes the argument that the soldiers' safety should be prioritized by setting up a hypothetical conversation between the state and a soldier who asks ‘Why should my state prefer an enemy citizen over me?’ Kasher challenges his readers to offer the soldier a morally compelling answer. This article responds to Kasher's challenge by presenting a dialogue in which a commander (representing the state) offers the soldier four arguments which together provide a convincing answer. The commander grounds his arguments in differences in the amount of choice exercised by soldiers and civilians, the divergent ways the operation can be expected to impact on them, the different obligations they each have to the state, and the likely consequences of emphasizing the safety of soldiers over civilians. The dialogue provides support for the ‘double intention’ reading of the principle of distinction championed by Michael Walzer.

Keywords:

• Principle of distinction
• counter-terrorism
• targeted killing
• civilian immunity
• double intention

Notes

1. The traditional doctrine of double effect as seminally formulated by Thomas Aquinas recognizes that actions may have multiple effects and asserts that sometimes a harmful side effect may be justifiable provided that the actor intends only to produce a distinct and justifiable effect. For example, Aquinas notes that ‘one's action in defending oneself can have two effects: saving of one's life and slaying the aggressor’ (Aquinas 2003: 170). He argues that as long as one aims only at the first effect, of saving one's own life, and, he adds, uses force in proportion to that end, the unintended second (harmful) effect, of slaying the aggressor, is justifiable. Similarly, Aquinas argues that public authorities may legitimately employ lethal force in collective self-defense, provided that they act only with the intention of securing that public good (and not, for example, ‘motivated by private animosity’; see Aquinas 2003: 170).

2. I set aside the issue of sovereignty here because it does not apply to the cases Kasher and Yadlin are most concerned with, and because it adds an additional factor of complexity. I do not suggest that the issue of sovereignty would necessarily decide the matter either way, only that it would require additional discussion that for reasons of space must be foregone here.

3. I do not mean by this to suggest that ground operations always impose a lower danger to local civilians than airstrikes, and therefore should always be preferred. All that is suggested here is that at least sometimes they do pose less danger to civilians, and that this is one of those cases.