|TERRORISM, JUSTIFICATION AND
by Saul Smilansky
Professor Smilansky is in the Department of Philosophy of the University of Haifa in Israel. His main interests are Ethics, the free will problem, justice, problems of self-deception and social illusions.
Bernard Williams once said that doing moral philosophy could be hazardous because there, presumably unlike in other areas of philosophy, we may run the risk of misleading people on important matters.1 This risk seems to be particularly present when considering the topic of terrorism. I would like to discuss what seems to be a most striking feature of contemporary terrorism, a feature that, as far as I know, has not been noted. This has implications concerning the way we should view terrorism (and counter-terrorism), and shows the force of a number of neglected illusions surrounding the issue of terrorism, as well as its justification.
First I will quickly go over some definitions and clarify some of my assumptions. There is a broad sense in which terrorism can be understood as “intentionally targeting noncombatants with lethal or severe violence for political purposes”.2 In ethical terms, this formulation seems to capture the salient feature of the practice, the intentional targeting of noncombatants (and not in the context of crime or the like). However, I wish to focus here on terrorism in a narrower sense, as practiced by members of small or weak groups that lack the capacity to field an army and engage in warfare. Henceforth when I speak of terrorism I shall refer to this narrower sense. The distinction between combatants and noncombatants, and its relation to the notion of innocence, are problematic, but to a lesser extent in the context of terrorism than in that of warfare. Terrorism has typically and specifically targeted civilians without concern for their innocence; this is a large part of the indiscriminate murderousness and randomness that terrorizes. Similarly, terrorists themselves are typically not coerced conscripts or people ignorant of the nature of their commitments, of whom one can wonder whether they might not be significantly morally innocent.
Two dominant claims on this issue that will concern us later on are:
a. The Principle of Noncombatant Immunity (PNI): it is never permissible to aim to kill (or severely harm) noncombatants. PNI forbids terrorist as well as counter-terrorist activities aimed at killing (or severely harming) noncombatants.
b. The Anti-Oppression Exception to PNI: PNI is correct in general, but there are exceptions when weak forces are fighting unjust oppression. In our context, the Anti-Oppression Exception permits terrorist targeting of noncombatants if it is necessary in combating oppressive regimes. Violating PNI in counter-terrorist activity is still, however, forbidden.
Some general remarks about the normative views underlying this paper. Some philosophers follow the Principle of Noncombatant Immunity and categorically reject terrorism as such. Coady, for example, writes “I… object to the technique of terrorism as immoral wherever and whenever it is used or proposed”.3 I do not hold any such unambiguous position. Following in the footsteps of previous discussions,4 I think that matters are more complicated, and that, as we shall see, the attempt to stick the square absolutist-deontological peg into the shapeless hole of terrorism cannot always be successful. At the same time, I recognize the moral force of the deontological insistence on strict noncombatant immunity: according to this position the only permitted intentional targets are combatants, broadly understood, for it is only they who have in some sense forfeited the universal human right of security, by seeking to endanger others.5 In my view unless there are overwhelming countervailing reasons, the strict constraint on the intentional targeting of noncombatants should be followed. But such reasons may occasionally exist, in extreme situations.6
Moreover, as has been often pointed out, the widespread acquiescence in the idea of nuclear deterrence puts paid to any absolute deontological adherence to PNI. The relationship between jus in bello and jus ad bellum also seems to me to be closer than PNI requires, so that we would need to pay close attention to jus ad bellum.7 And the distinction between what is philosophically justified and what it would be pragmatically best to do also makes its presence felt in the issue of terrorism. These and other matters will concern us in detail ahead. For now all I wish to do is to note that all these complications suggest a multi-level pluralism (of various deontological and non-deontological ethical concerns, and of principled versus pragmatic considerations) that defies easy codification.
2. Terrorism and justification in practice
It seems to me that the relationship between terrorism and moral justification in the world today is striking: the major instances of terrorism are not justified, while in cases where terrorism might be justified, there is no or relatively little terrorism. In other words, in the world today we have abundant terrorism without justification, and possibly-justified terrorism that does not materialize! We shall take up the issue of what this means in Part 3. Here I shall defend the claim just made. In all three of our test cases I shall only be able to outline the factors relevant for our issue, while the wealth of historical detail and complex nuances lie beyond our scope.
The following examples of terrorism are the most prominent ones of the post–Second World War era:
1. The IRA struggle against the British and Protestants in Northern Ireland.
2. The Palestinian struggle against Israel.
3. The al-Qaeda struggle against the West in general and others who refuse to recognize the exclusive authority of fundamentalist Islam.
2.1 The IRA
In order to see the hopelessness of the case for IRA terrorism, it is enough to note the following facts:
a. There is adjoining Northern Ireland an independent, flourishing, democratic Irish state, namely, the Republic of Ireland. Established in 1921, it covers some 85% percent of the island. The Republic fully enables the right of the Irish nation to self-determination, to cultural and religious development, and to unencumbered formation of identities as Irishmen and Irishwomen. Any Catholic living in Northern Ireland need only move south or west the distance of an hour’s drive, and all of the above rights and privileges will readily be available to him or her.
b. If choosing to remain in Northern Ireland, any Catholic is a citizen of the United Kingdom, which is similarly a wealthy and democratic state and an open society. He or she will enjoy full political rights and religious freedom as a British subject, and be represented in the British Parliament, as well as in democratic local government within Northern Ireland.
c. Living conditions for most Catholics in Northern Ireland, while unequal to those of most Protestants, partly due to discrimination, have throughout the period not been terribly harsh. Discounting certain measures arising from the need to deal with terrorism, there has been little violence inflicted on the civilian population by the British authorities, and hardly anything that can be described as tyranny or repression.
d. There is complete freedom of movement and ample possibility for cultural interaction with the Republic of Ireland, for any Catholic choosing to remain in Northern Ireland.
Irish Catholics have a strong historical case for resentment against the English. Under contemporary conditions, however, the Catholics of Northern Ireland are arguably among the few percentiles of the world’s population who are the most fortunate, in most respects that matter – political, cultural, economic, and religious. The case for armed struggle, let alone for continuous terrorism, is very weak. There is, in terms of just-war theory, no just cause. Unless one implausibly makes almost every grievance or interest justification for terrorism, the IRA’s terrorist campaigns have no ethical justification. (Unionist terrorism in Northern Ireland can similarly be shown to be unjustified. Even immediate unification of the whole of Ireland could not justify terrorism by Protestants, for reasons parallel to the above.)
2.2 The Palestinians
In the case of Palestinian terrorism the major factors that make for the absence of justification are the clear existence of alternatives to terrorism and the fact that the condition of the Palestinians has largely followed from their own choices. Consider the following:
a. Israel was established in 1948 following a decision in 1947 by a large majority in the United Nations to partition what remained of the British mandate over Palestine (the part west of the River Jordan) into two independent states, a Jewish State and an Arab State (Resolution 181). The Jewish leadership accepted the decision. The official leadership of the Palestinian Arabs rejected the very idea of an independent state for the Jews as well as the compromise partition plan, and the Palestinians began fighting, which included a terrorist campaign, combined with the invasion of the military forces of five Arab armies. Hence already in 1948 the Palestinians could have had an independent state alongside Israel.
b. Between 1948 and 1967 the Palestinians could have called for and attempted to establish an independent Palestinian state in the West Bank and East Jerusalem (captured by Jordan in the 1948 war) and in the Gaza Strip (captured by Egypt in the 1948 war), both areas intended to be within the Palestinian/Arab state according to the partition plan. The Palestinians made no such attempt, aiming their political efforts, coupled by continuous terrorist incursions, at Israel. Cross-border terrorism was led in the pre-67 period by the mainstream Palestinian Fatah movement, headed (since 1964) by Yasser Arafat, with the avowed intention of provoking a war between Israel and the Arab states.
c. The uncompromising Palestinian denial of Israel’s right to exist continued after the Six Day War in 1967, in which Israel captured the West Bank, East Jerusalem, and the Gaza Strip, until the late 1980’s and the signing of the Oslo peace accords in 1993. Indiscriminate terrorism aimed at targets such as airplanes, synagogues, schools, and supermarkets, was continuous.
d. It seems that once these territories were in Israeli hands Israel became a classic target for non-violent resistance, as practiced by Gandhi in India. The fact that Israel is a democracy, the moral traditions and sensibilities of Jews who themselves were continuously persecuted when non-violent, and Israel’s dependence on and support from similarly open and principled societies, could have made such a non-terrorist campaign (if aimed at the establishment of a Palestinian state alongside Israel and not instead of it) particularly successful.8 But the opposite course has been repeatedly taken.
e. In 1978 Israel signed a peace treaty with Egypt. In that treaty Israel recognized the legitimate rights of the Palestinian people; and one of the provisions of that treaty was the establishment of Palestinian “full autonomy” in the territories, followed by negotiations towards a permanent settlement. That plan could also have led to the establishment of a Palestinian state. The Palestinians refused to join the talks when invited by the Egyptian President Anwar Saadat, and rejected that plan.
f. In 1993 Israel, led by Yitzhak Rabin, and the Palestinians, led by Yasser Arafat, signed the Oslo agreement. This arranged for the gradual withdrawal of Israel from territories in the West Bank and Gaza Strip, in return for the commitment by the Palestinian authority (which was strengthened and well-armed following the agreement) to recognize Israel’s right to exist, cease terrorism, and combat terrorism by other Palestinian groups that continued to call for its annihilation. This conditional “land for peace” agreement was soon broken: devastating terrorist attacks within Israeli cities occurred, often launched from Palestinian controlled territory, with the Palestinian Authority doing very little to stop them. This campaign resulted in the defeat of Rabin’s successor, the Israeli Labor Premier Shimon Peres, in the 1996 elections to the Likud candidate Binyamin Netanyahu, who although continuing to give some further territory to the Palestinians, did not implement the Oslo accords in good faith. By then the Palestinians had some control of around 40% of the territories, including the major Palestinian population centers. The Palestinian state-on-the-way was once again derailed by Palestinian terrorism.
g. In 1999, a Labor candidate, Ehud Barak, was again elected Prime Minister. Barak, in the Camp David negotiations (Summer 2000) and in the following months at the Egyptian city of Taba (partly even after violence had begun), made the Palestinians dramatic offers: accounts of the details vary somewhat, but in Camp David the offers included the Gaza Strip, 90% of the West Bank, and a capital in East Jerusalem, with most Israeli settlements to be dismantled. The Palestinians rejected the offers, made no counter-offer, and resorted to violence. In Taba the offers included around 97% of the West Bank, and Barak offered even to hand over to the Palestinians some pre-1967 areas from within Israel itself (making it overall a roughly “100% deal”). Palestinian independence and the end to Israeli control seemed imminent. However, “like déjà vu all over again”, the Palestinians rejected these offers as well as Clinton’s bridging proposals, and resorted to violence and armed struggle from the beginning, and shortly afterwards - to systematic terrorism and suicide bombings. It is important to note the central role played in the terrorist campaign by the Palestinian mainstream led by Arafat’s Fatah movement, and not only by radical Islamic groups like Hammas and Islamic Jihad. The view that the Palestinians only want a state of their own alongside Israel and, if that is granted, they would truly recognize Israel and let it be (rather than use any territory that would be conceded as a springboard for seeking to destroy it), was perceived to have been discredited once again. The Israeli public in a political backlash elected Ariel Sharon. He has publicly supported the idea of a Palestinian state once terrorism ceases, although it is not clear what his intentions are.
None of this is to deny that certain Israeli actions have been morally unacceptable, and that some Palestinian resentment has justification. No doubt, as in the case of Northern Ireland, the narrative is more complex, and might be interpreted in somewhat different ways at various points. But our question is specific: whether terrorism has been justified. And in this case as well, the negative conclusion is clear: the Palestinians have repeatedly had peaceful opportunities for gaining a state of their own and, tragically, have opted instead for terrorism. For this there is no ethical justification. In terms of just-war theory, the just Palestinian aim of establishing a state of their own alongside Israel did not require terrorism: the necessity condition was not met. Historical circumstances have changed over the years, but the Palestinians have always seemed to prefer the hopes of annihilating Israel in concert with Arab states, or the romance of violent struggle, to constructive accommodation. Rather than terrorism being required in order to establish a Palestinian state, it is on the contrary the Palestinians that have repeatedly sabotaged the establishment of an independent Palestine alongside Israel, both directly, and indirectly through the influence of their choices and actions on the Israeli democratic process. (Instances of terrorism by Jews since the establishment of Israel also lack any credible moral justification.)
Al-Qaeda seems to have developed after the success of the fight against the Soviet occupation of Afghanistan, into a network seeking to establish fundamentalist Islamic hegemony, a self-declared “Universal Jihad”. Al-Qaeda has targeted Western states and westerners in general, Russians, Jews, non-sympathetic Islamic regimes and targets within Muslim countries, and other areas where Muslims may gain power (such as the Philippines). The ideology of this group is radical: it is anti-democratic and totalitarian, utopian, opposes universal human rights and the emancipation of women, anti-Western and anti-Semitic, and in favor of a continuous violent struggle towards the establishment of universal fundamentalist Muslim rule.
I trust that little needs to be said on why there is nothing here that can morally justify the most violent terrorist operations staged by al-Qaeda, which purposefully and typically discount non-combat immunity and moral innocence. Primarily, there is, in terms of just-war theory, simply no just cause. There are 22 independent countries that are members in the Arab league, and dozens of explicitly Islamic countries (the exact number depends on how those are defined). There is ample potential for Islamic self-expression, the development of Muslim culture, and the practice of Islam, the religion of over one billion people. There are many problems within Muslim societies, as well as vast wealth derived from oil that could help deal with them, but nothing here can justify a terror campaign.9
2.4 Where might terrorism be justifiable?
We have seen, then, that the most concerted terrorist efforts since the Second World War, those of the IRA, of the Palestinians, and of al-Qaeda, seem to lie very low in any plausible scheme of moral justification. This evaluation is not dependent on a subtle balancing of considerations, but is apparent to any sensible informed analysis.
What about the other side of the equation? Here, since we are thinking hypothetically, it is much harder to judge and, in any case, one must be very careful when suggesting that terrorist activity that might have been justified did not materialize. Making a convincing case here would also require a very detailed description of the situations. However, I do not think that as philosophers we can hide from ourselves that such cases can probably be made.
One situation where terrorism might be justified lies in situations where there is clear danger to a group’s very existence or the mass extermination of noncombatants. There have been a number of almost genocidal situations in the post World War II period we are considering – Biafra, Cambodia, Rwanda, Sudan, East Timor. It is not clear whether terrorism would have been effective in stopping the horrors in those cases, or that there were not other untried means for doing so but, if such a case for unique effectiveness could have been made, perhaps in those cases it might have been, overall, justified.
Another possible area we might examine is that of limited terrorist actions aimed at galvanizing public attention to the plight of poor people in the Third World. With millions in Africa starving, with further millions dying because they cannot afford to buy inexpensive and readily available medication, and so on, a consequentialist perspective, at least, certainly justifies great moral outrage. It might be argued that terrorism is unlikely to have a successful coercive effect here. However, if selective, limited and symbolic, it could certainly raise the issues to the headlines. Whether there are other as yet untried alternatives, and whether terrorism can be a positive influence here overall, are questions that, again, would require detailed investigation. But for our purposes it suffices that we pay attention to the interesting fact that no serious attempts of this kind – whether justified or not – have occurred. Terrorism has continuously rocked the world, but such moral and idealistic aims have not been its targets.
Thirdly, there is the issue of limited and narrowly focused terrorism aimed at toppling dictatorial regimes and establishing democracy. Many Third World regimes (or indeed Second World ones, until the fall of Communism) are not only undemocratic, but also severely oppressive. In many countries there is no likely possibility of improvement unless present rulers are toppled. It could be argued that such regimes would not care about even a great deal of harm inflicted on their civilian population, hence terrorism would not be effective. However, the regime’s control over power might weaken, and selective terrorism might at least be a means of “communication”, rallying opposition forces in social orders where other forms of communications are tightly controlled. Other means of reform are perhaps not available, while limited terrorism focused on discrediting the regime or on influencing or harming the often-narrow elite might work. Again, great care must be taken here and the possibility of making a pro-terrorism case should be viewed skeptically. The surprising fact, however, is, once again, how relatively uncommon terrorism has been in such contexts. The typical targets of terrorism in the narrow sense have been liberal democratic societies: consider which airlines have been hijacked, for instance. Terrorism has usually not targeted the worst but rather the best type of regimes in the world. These are doubtless easier targets, but not morally fitting ones.
I have argued, in a nutshell, that by and large where there has been terrorism it has not been justified, and where it perhaps could have been justified, it has not occurred. What follows from this?
3.1 The Impotence of Justification
One would have thought that there would be some significant positive correlation between the practice of terrorism and moral justification. But not only is there no direct positive correlation, the two go in opposite directions. It might be argued that terrorists and those assisting them cannot be expected to follow intricate discussions of analytic philosophy. But that was not the expectation: there is, after all, political leadership, public discussion, media coverage, academic research, and individual moral reflection, that might have been thought to have some positive effect, to help get things right. The continuous nature of terrorism as practiced in all these cases also precludes the thought that what we have here are some simple errors of calculation (e.g., the thought that limited acts of terrorism will ensure quick success), or some spontaneous reaction. Rather, long term, well-developed and seemingly self-sufficient bloody “cultures of terrorism” are involved.
Our result implies that the world is curiously disjointed. Perhaps there are situations where terrorism has been contemplated but not pursued as a result of good moral reasoning. Still, in a striking way the role of adequate moral reflection is shown in its emptiness – both when the efforts at justification ought to yield negative results, and when they ought perhaps to yield positive ones. Within the societies and cultures that have generated terrorism, or support it, moral deliberation on our topic has failed to be effective. The thought that terrorism can be adequately guided by processes of justification is an illusion.
What, then, is going on? I think that an alternative “justification bypassing” explanation of the different situations can be provided, but doing this in detail is of course beyond our scope. Terrorism exists in our three major examples for historical, sociological, cultural and psychological reasons. It is not by chance that, in all three cases, religion plays a large role. The nationalistic and religious hatred lying behind IRA, Palestinian and al-Qaeda terrorism goes a long way towards explaining it. It is not so much substantive moral concerns - with massive danger to life, collective self-determination, personal freedom, basic cultural and religious rights, lack of alternatives or the like - that lie behind these instances of terrorism, but the ghosts of history, the depths of ill will and the temptations of power. Fanatical religious and nationalistic pride and intolerance, the psychological attractions of being a “victim” rather than assuming responsibility for one’s difficulties, an uncritical culture of resentment and envy, romantic idealizations of struggle and violence, open hatred of the other for its otherness, irrational myths, the self-destructive desire for mastery, and other such beliefs and passions, seem to lie behind contemporary terrorism.
3.2 Being careful
The general project of moral justification makes certain demands: for instance, that the existence of real needs and just aims be established, that severe violence should be used only as a last resort, that reasonable proportionality be maintained, and that standards of universalization can be applied to the would-be justification.
What does the considerable impotence of this project in the present context imply about what we should do? At the very least, it seems to me to suggest that we take great care with this issue. For those deontologists who would condemn every instance of terrorism as such, matters are simpler. But that even without dismissing the possibility that terrorism can be justified, we have nevertheless concluded that, in the major examples of its prevalence, terrorism has been unjustified, should lead us to be very skeptical about the idea of permitting terrorism. It might be countered that the absence of actualization of those examples where terrorism might be justified should lead us, by the same token, to be more daring in allowing it. But I do not think that matters are symmetrical here. Our conclusion, in brief, is that the connection between justification and actualization is severed: under such conditions, engaging with the issues in the hope of “fine tuning” the permission of terrorist activity is far too risky. We should err on the side of not allowing terrorism.
In a still deeper way, we need to confront the fundamental power of illusory forces. In the past, illusory ideas of superiority and fanatical power-hunger coupled with fantasies of world-mastery, such as those of the Nazis, overtook whole nations. The record of modern terrorism shows some of those elemental illusory forces at play and, in any case, exhibits a similar gross blindness to, or disdain of, acceptable standards of moral justification. There is a grand struggle between moral justification and the temptations of terrorism, and at least where terrorism has occurred, so far moral justification has seemed to have but little effectiveness. This applies both at the grass roots level and with the respective elites. All of this does not mean that we should give up the effort at clarifying standards of moral justification, or give up the ideals of public enlightenment. We should, nevertheless, know where we are, rather than fool ourselves.
3.3 Absolutist PNI as a “positive illusion”
Under such conditions, the Principle of Noncombatant Immunity, or PNI, has a lot to be said for it pragmatically. PNI might be socially useful even though philosophically it is unpersuasively strict. Perhaps, in its insistence on absolute constraints, in its taboo on intentionally targeting noncombatants, it is, by and large, a “positive illusion”.10
A pertinent factor here follows from the general features of combat. Because of its lethal nature, the psychological tendency of situations of combat to lead to strong feelings of hatred and revenge-seeking, and the temptations in situations where normal restraints against violence are left behind, absolute prohibitions are perhaps pragmatically necessary in order to achieve actual restraint. While with many matters ethical sensitivity can be problematic11, in the case of warfare the dangers typically lie on the other side. Concerning the intentional targeting of non-combatants, and perhaps a number of other “temptations” of combat, it is better that people believe in absolute constraints, and not make exceptions. It is far from obvious, in other words, that the philosophical-ethical complexity should be applied in practice; say, in the minds of soldiers and their commanders. Such a widening gap between theory and practice is, however, problematic in itself.12
The absolutist line concerning noncombatant immunity has become dominant in Western public debate and in the laws concerning the conduct of warfare. This has had a large emotional influence, which goes much beyond any possible force that a merely conventional understanding of the constraints might elicit. Noncombatant immunity is enshrined in international law and, with the exception of nuclear deterrence, is widely respected, at least by First World countries. It has a civilizing influence that, other things staying constant, may be extended. Among the things that may not stay constant is terrorism, particularly as it receives support from established states and seeks to acquire non-conventional weaponry.
3.4 The dangerous illusion of the Anti-Oppression Exception
The Anti-Oppression Exception to PNI, the modified version of PNI that allows the targeting of noncombatants by weak groups in the struggle against oppression, is a clear casualty of our discussion. All three of our major examples of terrorism are frequently assumed to be permitted by the Anti-Oppression Exception. If there is no justification for terrorism in these cases, then our confidence in following this common lenient viewpoint should fade.
Moreover, if indeed the strict adherence to PNI is pragmatically so important, we see how dangerous the Anti-Oppression Exception is to respect for PNI. The more “anti-oppression” by the weak is tolerated as a justification for terrorism, the more does the one-sided constraint put upon any counter-terrorist transgressions of PNI seem unreasonable, adding pressure towards the abandonment of such counter-terrorist constraint. Consider the following:
Purity of Arms (Morality in Warfare): The soldier shall make use of his weaponry and power only for the fulfillment of the mission and solely to the extent required; he will maintain his humanity even in combat. The soldier shall not employ his weaponry and power in order to harm noncombatants or prisoners of war, and shall do all he can to avoid harming their lives, bodies, honor and property (from the Israeli Defense Force revised ethical code, accepted September 2001).13 [My emphasis.]
Such limits follow from relevant parts of international law, which clearly incorporate deontological constraints upon combat:
The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited (The 1977 Protocol to the Geneva Convention, Article 13.2).14
Potentially useful ideas such as the following are all forbidden by PNI:
a. Threatening to kill noncombatants that terrorists care about in order to deter the terrorists.
b. Intentionally killing noncombatants as a means to hinder terrorist activity.
c. Indifference to noncombatant casualties during counter-terrorist activity.
d. The idea that some terrorists or their leaders are beyond moral conversational reach and hence everything may be done – including targeting noncombatants – in order to suppress them.
Now, recall the thoughts of David Hume:
And thus justice establishes itself by a kind of convention or agreement; that is, by a sense of interest, suppos’d to be common to all, and where every single act is perform’d in expectation that others are to perform the like. Without such a convention, no one wou’d ever have dream’d, that there was such a virtue as justice, or have been induc’d to conform his actions to it… ‘tis only upon the supposition, that others are to imitate my example, that I can be induc’d to embrace that virtue.15
This may well seem too extreme to many, and I would certainly put independent moral weight on PNI and think that views such as Hume’s should be resisted. However, when for terrorists the indiscriminate murder of innocent civilians is the declared epitome of operational success, the idea that PNI is to be a strict constraint on self-defense from terrorism, with harmful operational repercussions, becomes psychologically problematic, more difficult to maintain in practice, and dubious at least in consequentialist and contractual ways. Even if PNI is maintained, and even if any accidental noncombatant enemy casualties are perceived as an operational failure by forces combating terrorism, concern for them, at least when they occur in the form of “collateral damage”, would tend to diminish. And when terrorism becomes overwhelming, more direct “reciprocal” approaches that are ready to dismiss PNI in return for effectiveness can be expected. Moreover, as the experience in Northern Ireland attests, such anti-PNI escalation can itself take the form of terrorism, with both Catholic and Protestant sides engaging in it. By contrast, a firm insistence on PNI can limit divergence from PNI in counter-terrorism and mutual-terrorism.
Why can the Anti-Oppression Exception be thought to be attractive as compared to strict PNI? The reason cannot simply lie with the moral weight of oppression, for oppression is not the only, nor is it the worse, form of badness that may need to be struggled against. So what line can the proponents of the Anti-Oppression Exception take, given that they want to maintain the permission to transgress PNI as an exception available only for the weak? Perhaps the most plausible argument, from fairness or mutuality, might go like this:
You defenders of strict PNI are actually defending the strong against the weak, which is not fair. The forces of oppression, of course, wish to limit struggle to armies or combatants, because that is where they are strong and we, the opponents of oppression, are weak. Well, we are ready – give us an equal share of your tanks, missiles and warplanes, and we will fight only combatants and forgo terrorism. Until you do so, however, the only way we can defend ourselves and combat oppression is by attacking the oppressors at their weak point, namely by targeting their noncombatants.
Now, one may or may not find this persuasive as a basis for permissible terrorism but, if one does find it persuasive, I do not think that the break with PNI can be contained. On the contrary, if we leave PNI behind, there is no reason why counter-terrorist activities oblivious to PNI could not be defended. If the terrorists are killing noncombatants, counter-terrorist activities can bring forth similar claims for “necessity”, because they may argue that they are confronted by a mirror image of the limitations that the terrorists fighting oppression confront. Those fighting terrorism can just as well say that they would be happy not to have to fight terrorism by targeting noncombatants, but cannot afford such luxury because terrorists are elusively blending into their noncombatant environment, and only by targeting noncombatants is the justified struggle against terrorism possible. They would be quite ready to forgo the unfortunate killing of noncombatants, if the terrorists would only stop hiding and come out in the open.
Of course this leaves open the substantive question whether the aim is justified, as well as whether other conditions such as proportionality are being met. But this equally can be asked of the proponents of the Anti-Oppression Exception in specific cases. The general question is simply whether the pursuit of just aims may proceed at the expense of PNI. There is nothing unique in the struggle against oppression by terrorists representing weak groups that can justify the principled break with PNI through terrorism, but still stop in principle similar justifications for counter-terrorism. Such a gross “Asymmetry Claim” needs firm justification, but one cannot imagine what that might be. My claim is not that a breach of PNI can be justified in the very same case both on the side of terrorism and of counter-terrorism. Rather, it is that if it is just or otherwise morally justified to breach noncombatant immunity on the side of terrorism, it is likely to be sometimes so on the side of counter-terrorism. It is an illusion that you can do morally nasty things in the name of, say, national liberation, but symmetrical justifications could not be found for counter-terrorist breaches of PNI. Wherever we draw the line, it cannot reasonably apply only to one side.
It might be argued that the disappearance of the Anti-Oppression Exception could have harmful consequences, emboldening the oppressors who would know that terrorist resistance would not be thought legitimate. This does not take into account the widespread use that oppressors currently make of the claim that repression is necessary because of the threat of terrorism, a claim which would also be set back. But, in any case, matters are symmetrical here as well: it might similarly be argued that ruthless non-PNI counter-terrorism has a useful deterrent effect against terrorists, who would otherwise be able to count on the fact that, whatever they do, those fighting against them were limited by PNI!
In fact one of the particularly nasty features of terrorism is its ‘parasitic’ nature: as in our three test cases, the terrorist infringement of PNI occurs just because the terrorists know that they can rely on their enemies not to react in a similar, ruthless manner. Sometimes terrorism aims to provoke reaction, but its perpetrators also know that such reaction is typically constrained by PNI and other limitations. This is one of the reasons why contemporary terrorism has typically targeted Western democracies, exploiting the principled respect for PNI.
As I have claimed, a number of different illusions (sometimes conflicting, and held by different groups) seem to be present in the context of terrorism and justification:
(a) The illusion of the efficacy of justification: that processes of credible ethical reflection and justification can be relied upon in generating what actually happens.
(b) The illusion that the major instances of modern terrorism have a significant justification.
(c) The overwhelming spread and force, in our context, of illusions – nationalistic, religious, ethnic, cultural – irrational forces carrying great emotional weight with millions of people, and leading to terrorism and the support of terrorism.
(d) The arguably positive illusory belief, encouraged by the international laws of warfare, that terrorism is never justified, as embedded in something such as the absolutist constraints of the Principle of Noncombatant Immunity (PNI).
(e) The illusion that we might and should permit this line to be crossed, but only in the fight by the weak against oppression (the Anti-Oppression Exception).
Both the widespread impotence of the project of public moral justification as well as the prevalence of illusion, in the context of terrorism, merit further critical examination. What seems already clear is that these two factors should make us, as human beings, considerably more apprehensive, and as intellectuals, more humble.
An earlier version of this paper was read at the “Terrorism and Justice” conference at Georgia State University, April 2003, and I am grateful to participants for their helpful comments. I am also very grateful to Eyal Benvenisti, Michael Gross, Hagar Kahana-Smilansky, Iddo Landau, James Lenman, Jeff McMahan, Daniel Statman, Alex Yakobson, and Noam Zohar, as well as to anonymous referees for Ethics, for their comments on drafts of the paper.
1. Bernard Williams, Morality (Harmondsworth: Penguin Books, 1973), p.9.
2. C.A.J. Coady, “Terrorism” Encyclopedia of Ethics Becker & Becker, eds. 2nd ed. (New York: Routledge, 2001), p.1697.
3. C.A.J. Coady, “The Morality of Terrorism” Philosophy 60 (1985): 58; see also Jeffrie G. Murphy, “The Killing of the Innocent” Monist 57 (1973): 547-8.
4. See, e.g., Michael Walzer, Just and Unjust Wars (Harmondsworth: Penguin, 1978); R.G. Frey and Christopher W. Morris, “Violence, Terrorism and Justice”, in their Violence, Terrorism and Justice (Cambridge: Cambridge University Press, 1991); Virginia Held, “Terrorism, Rights and Political Goals”, in the same collection. To avoid misunderstanding, the type of deontological view I refer to is that which poses absolute constraints on intentionally harming noncombatants. Thomas Nagel, in his influential “War and Massacre”, War and Moral Responsibility Marshall Cohen et al., eds. (Princeton: Princeton University Press, 1974), calls deontology “absolutism”, thereby capturing this feature.
5. E.g. Murphy ibid: 547-8. This is sometimes grounded in the principle of self-defense: see, e.g., Robert K. Fullinwider, “War and Innocence” International Ethics Charles R. Beitz et al., eds. (Princeton: Princeton University Press, 1985), p.94.
6. Such a view is sometimes called “moderate deontology” or “threshold deontology”, but this seems to me misleading. On the need for conceptual clarity here see my “Can Deontologists Be Moderate?” Utilitas, 15 (2003): 71-75.
7. For an extreme view on this, see Jeff McMahan, “Innocence, Self-Defense and Killing in War” Journal of Political Philosophy 2 (1994): 193-221, and his article, “The Ethics of Killing in War”, in this issue.
8. This was suggested to me by Jeff McMahan.
9. It might be thought that by limiting my discussion to post-World War Two events I have avoided the pertinent grievances that might justify terrorism. Since I think that the intentional targeting of noncombatants is morally so bad, very strong justification is required to overcome the constraint against it. It is hard to see why old historical grievances lying generations away, even if substantial, can justify killing noncombatants in the present. To do so would open the door to virtually unlimited worldwide violence, for historically nearly every national territorial holding has been acquired unjustly (and imagine, e.g., any effort to address slavery, Colonialism or the Holocaust through terrorism!). This has interesting implications that limit the role of considerations of justice within moral justification, but this matter cannot be pursued here. In any case, I do not see that in our three cases the grievances are now morally salient, although a footnote is not the place for a thorough defense of this claim. The Protestants have been in Northern Ireland for hundreds of years, and one cannot seriously think of current Protestants as invaders or upstarts. Jews have been in what the Romans (seeking to eliminate Jewish national identity) called Palestine for longer, of course, and even before the modern Zionist movement of the 1870s had a significant presence there (there was a Jewish majority in Jerusalem, for instance). The return of Jews to their ancient homeland was a way of re-establishing political and cultural self-determination, as other people’s had, with the hopes for security in a dangerous world. Zionist immigration was non-violent, and made into a politically undefined place (at the beginning of the process the local Arabs saw themselves as part of the larger Arab entity, and Palestinian national identity itself developed as a response to the Jewish immigration, which of course does not imply that it is not now morally legitimate or important). I cannot begin to imagine how a serious argument for historical justification of terrorism is supposed to work with al-Qaeda; judging from the rhetoric perhaps the Crusaders are the main culprits.
10. On this notion, see Saul Smilansky, Free Will and Illusion (Oxford: Oxford University Press, 2000), Ch.7. The usefulness of a “positive illusion” typically depends on its not being recognized as such.
11. See Saul Smilansky, “The Ethical Dangers of Ethical Sensitivity” Journal of Applied Philosophy 13 (1996): 13-20.
12. See Smilansky, Free Will and Illusion: Ch.11.
13. “The Spirit of the IDF” (the revised ethical code of the Israeli army; Israeli Defense Force official publication, 2001).
14. “Protocols additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977”.
15. David Hume, A Treatise of Human Nature 2nd ed. (Oxford: Clarendon Press, 1987), p.498.
This paper is from the journal ETHICS, 114, July 2004, pp. 790-805)
For related articles, go to
Chaim Gans, The Palestinian Right of Return and the Justice of Zionism
Alon Harel, Whose Home Is It: Reflections on the Palestinians' Interests in Return
Tamar Meisels, The Trouble With Terror: The Apologetics of Terrorism -- a Refutation
Ben Saul, Two Justifications for Terrorism: A Moral Legal Response
Daniel Statman, Targeted Killing
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