FAILURES OF JUST WAR THEORY:
TERROR, HARM, AND JUSTICE
F. M. Kamm
DRAFT -- PLEASE DO NOT CIRCULATE
I
Standardly, discussion of terror and justice has been raised in connection with whether terror bombing is a just means by which to pursue a war initiated in accord with justice. That is, in just war theory, a distinction is drawn between jus ad bellum—whether the war is, in principle, justified—and jus in bello—whether the means used to carry it out are justified. Just war theory is deontological insofar as not every means is justified in pursuit of just goals. Typically, terror killing of noncombatants (TKN), that is, intentionally killing them because, for example, fear will lead to surrender, is ruled out as a means to use in fighting a just war. Use of it will make the war unjust, even if it would be just when pursued by appropriate means.
	Jus in bello theory distinguishes how we may treat combatants from how we may treat noncombatants. Hence, though I have never seen this discussed, it remains possible that jus in bello permits terror bombing combatants. Intentionally killing combatants while they are attacking (or their leaders while they plan the war) may be considered self-defense or defense of others and so not terror killing. However, suppose that those engaged in a war jus ad bellum intentionally kill combatants who are asleep, not to prevent a future attack by them, but rather to frighten their country into surrendering by a show of superior power. Is this permitted? Suppose they terror kill retired leaders who previously led their country into an unjust war, in order to frighten the country into surrendering. (Would it have been consistent with just means to drop a bomb on sleeping Japanese soldiers for such a reason, even if it was inconsistent with just means to bomb noncombatants in Hiroshima?)
	Such issues are not what the topic of terror and justice is likely to call to mind since 9/11, in part because the 9/11 terror is not occurring as a means during a standard, declared war between nation states. Still, the focus remains on the deliberate killing of noncombatants as a means to some end. So, is this truly unjust as a means, even if used to pursue a goal which itself is just?
	The short answer to this question is that a goal could be just and yet terror be an unjust means simply because not all just ends are important enough to justify killings however they are brought about. The jus ad bellum doctrine about standard war between nations deals with the issue of what injustices may be corrected by killing, even carried out in permissible ways. Not all injustices are great enough to merit war; and if war is the only way to correct them, one must rather live with the injustices.
	And so, outside of standard war between nation states, we must also consider whether an injustice is severe enough to merit being corrected by means that involve killing, intentional or not, and whether of noncombatants or of armed personnel. Sometimes, the objection to those who commit acts of terrorism outside of standard war is that their cause does not merit their killing anyone in any way. If this is so, then even if attackers were to announce in advance their aim of bombing a munitions plant, and kill as a side effect of this bombing the plant only soldiers called up to protect the plant, the attackers would still be in the wrong. 
	For purposes of this discussion, let us suppose that even outside of standard war, the only injustices that merit any sort of killing are the same as would make a standard war between nations permissible. If those killing outside of standard war do not have such a just cause, they fail a minimum standard analogous to jus ad bellum. But meeting this minimum standard does not necessarily mean that one may act as a state would if it met this standard. Should a group of individuals that officially represents no one, perhaps, but themselves have the same rights to act as states that have some claim to be the legitimate representative of people? Perhaps this failure to be a legitimate representative is sufficient to rule out the permissibility of using warlike means of any sort even for a just cause. Perhaps, it is this failure that makes the use of terror (which can be undertaken, rightly or wrongly, by a legitimate state) into the act of only a terrorist. However, I find it hard to believe that no non-state groups can legitimately represent and permissibly act for people who suffer sufficient injustice. So it is possible that some nonstates, such as the French underground in World War II, might meet the requirements of being a legitimate agent. For purposes of this discussion, let us assume this is so. Furthermore, I find it hard to believe that no nonrepresentative agent—a mere onlooker—could not sometimes act legitimately in a warlike manner. For example, suppose some sympathetic white individuals had made war on slaveowners as a last resort when no one else had taken action. 
	Standard war theory typically assumes that warring means aside from TKN are available to pursue a just war, even if the war will then not be pursued as efficiently. Nonstates that have a sufficient just cause to kill, however, may not have access to means of war aside from terror. As an aid in considering whether they—with a sufficient cause and claim to be morally legitimate agents—may resort to terror, we might consider whether a state that no longer had any other means to pursue a sufficient just cause could permissibly resort to terror. It will also be necessary to consider whether, if they also lack the means to terrorize armed personnel, they may terrorize noncombatants.
	So far, the considerations I have mentioned give rise to the following checklist (or decision tree, if used by the agent itself) in Figure 1. Note that each time a new means or new type of victim is contemplated, we must again ask if the injustice is sufficient to merit those means and those victims.  I assume throughout that the  means would be useful in eliminating the injustice, otherwise just cause is insufficient to justify use of the means. 

sufficient injustice for killing?
                          	   			       		
yes			                  no
		  				   
legitimate agent for killing?	              (stop)		
      	           
           	       yes			            no
		        			            
           nonterror means, 		         (stop)
           harm combatants?
 		
          yes			      no
           				        
      (stop, unless terror		     
     against combatants is 		
     equal to nonterror killing       nonterror means,
     of combatants)	         harm noncombatants?
		       	        		
 		       	yes			   no
         	              		
		 sufficient injustice for	
 killing noncombatants?	  		
                 	      	      
           	  yes			        no
                                 		        
   (stop, unless terror	         (stop, unless terror
   against combatants	         against combatants
   is preferable)		         is OK)
combatant terror means?
				                            
       yes		        	           no
                     		           
			          sufficient injustice	
          for terror of               	 noncombatant
          combatants?	 	 terror means?
                     		  	   
			        yes		        no		yes                   no	     
         		                      	 	          
      (stop) 	     (stop)    sufficient injustice   	            
	     for terror of
	     noncombatants?
   	    
         yes		        	 no
        		                   		 
		  				                      (stop)

If an agent is eliminated for failing some earlier requirement, we do not even have to consider whether its use of terror on noncombatants might be permissible. Presumably, the earlier in the checklist that the agent is eliminated—or in case the checklist is in the wrong order, the more “stops” it goes through—the worse morally speaking it will be for that agent to use terror on noncombatants.

II
	Now, let us assume, for purposes of argument, that an agent has passed the just cause and legitimate agent points on the checklist and we must decide on the permissibility of its terror killing noncombatants (TKN). In this section, I will consider a common explanation in just war theory for why TKN is impermissible and contrast it with killing that this theory has considered permissible. I will argue that the explanation fails, for (a) it predicts as impermissible acts that are permissible, (b) it predicts as permissible what is impermissible, and hence, (c) cannot account for the distinction in permissibility of different acts when it is present.
The Doctrine of Double Effect (DDE) is standardly appealed to in order to explain why TKN is impermissible even as a means to a greater good. The traditional DDE says that it is absolutely impermissible to intend an evil even as a means to a greater good. However, it may be permissible to pursue a greater good by neutral or good means even if one will cause an evil as a certain and foreseen side effect, as long as the evil is less than (or, more generally, proportional to) the good to be achieved and there is no better way to achieve the good.  Hence, bombing a munitions plant (called strategic bombing) may be permissible, though we foresee that it will certainly kill some children as a side effect, but intentionally killing (e.g., terror bombing) an even smaller number of different children is impermissible. 
It is important to keep in mind that a terror bomber is not necessarily someone who directly hits the noncombatants. For suppose that a terror bomber has not enough fuel to get directly over the children. However, he knows that if he directly bombs an abandoned building that he can reach, its blowing up will, as a side effect, certainly kill the children. He hits the building only as a means to killing the children, which is a means to ending the war. This should also qualify as terror bombing.
The DDE depends on a conceptual distinction between (acting or omitting) intending x and (acting or omitting) foreseeing that x will certainly thereby come about. I think there is such a conceptual distinction; the question is whether it has moral relevance. A common test for the conceptual distinction is the Counterfactual Test. It says, suppose that, counterfactually, an evil would not occur if you acted but all else remained the same. Would you continue to act? It is said that the agent who intends the evil at least has a reason not to continue, but an agent who merely foresees the evil would have no reason not to continue. 
The DDE’s prohibition on intending evil does not necessarily lead to minimizing harm to noncombatants, since fewer might be killed in terror bombing than as a side effect. Rather, some argue that the point of the prohibition is to respect the dignity of the person. For example, Warren Quinn offered an explanation of the attempt to distinguish intending evil from acting with foresight to its occurrence. The former, he said, was objectionable when it involved treating other people as available to be used for our profit; it involved treating people as mere means in an objectionable sense. The latter involved not being willing to constrain the pursuit of our goals by legitimate means simply because of the harm to others that would result. It could involve objectionably failing to treat them as ends in themselves by not taking seriously enough their interests as constraints on our goals. Objectionably treating as a mere means involves not treating as an end, but not necessarily vice versa. He thought that treatment as a mere means adds an additional objectionable element to merely acting despite harms to others, holding constant harm done in the two cases. Notice that respect for the dignity of persons can make it impermissible to treat them in certain ways, even to minimize impermissible treatment of many others. Roughly put, the reason for this is that if morality permitted using some to save others, everyone’s status would be lower. By contrast, if many people are actually treated impermissibly, this lowers no one’s status. Status is connected to what it is permissible to do to people, not with what actually happens to them. 
The DDE’s other requirement that evil must be proportional to good does serve to limit noncombatant harm. But it must be combined with a general preference for killing combatants rather than noncombatants to achieve the fullest permissible reduction in noncombatant deaths. For example, Michael Walzer emphasizes that it is not enough for jus in bello that we not intend the deaths of noncombatants; we must intend not to kill noncombatants (admittedly, without giving up war to do so). That implies that even if we would only kill noncombatants as a side effect proportional to the good of our goal, we should instead, if we can, harm a greater number of combatants as a means to our goal. 
I have discussed the DDE and the Counterfactual Test elsewhere in detail. Here I will only try to briefly gesture toward some problems with them relevant to just war theory
(A)  I believe that the Counterfactual Test does separate off (i) those who act despite the evil from (ii) those who intend the evil as a means or goal. However, the test does not isolate intending evil from (iii) doing an act that causes evil because the evil will occur but not in order that it occur. Hence, using the test will incorrectly lead to the conclusion that the DDE rules out bombing in the following case, which I call Munitions Grief: We plan to engage in strategic bombing that we foresee will kill children as a side effect. We know that if the parents can quickly rebuild the munitions plant, there will be no point in bombing. However, we foresee that because the children will be killed, the parents will be consumed with grief and unable to rebuild. It is only because we know that the deaths will have this effect that we bother to bomb the munitions plant. If the evil did not occur, we would not bother to bomb. Hence, according to the Counterfactual Test, we intend the children’s deaths, but this need not be true. We need not be rationally committed to doing anything for the purpose of killing them or to make it the case that our bombs kill them, if they did not already have this effect. We just take advantage of an expected side effect of our act in deciding to do the very act that causes that side effect. In this sort of case, the bad effect is a reason to act but not because it is a goal of our act (not even an intermediate goal, such as a means to a final goal). Rather, it is a reason, in the sense of being a condition of action, because the bad effect will defeat a potential threat to a goal we have achieved by bombing (i.e., it defeats the parents’ rebuilding the plant we have destroyed). Hence, finding the reason for someone’s act is not the same as finding his intentions, contrary to a common view. If terror bombing the children is impermissible because it violates the DDE, that does not imply that it is impermissible to bomb in the Munitions Grief Case. Hence, one may sometimes avoid transgressing the DDE, even if one acts because of, not just despite, some lesser evil that one causes.
(B)	The first problem with the traditional DDE per se is its claim to be absolute, never overrideable. (Though not all those who use the DDE in just war theory treat it as absolute.) If intending evil were never permissible, one could not intend even in self-defense the death of an aggressor or a morally innocent person who has been made into a fatal threat. Does it help to understand the DDE as absolute only when one is intending evil to persons who are not threats or parts of threats (e.g., shields)? But suppose that because of their previous acts carried out because of conscientious commitment to an unjust cause, they have responsibility for a current war though they are not a current threat. Could they not be terror killed to stop war? This seems permissible, for it seems permissible to use someone who acts unjustly as a mere means to save his victims or potential victims. For example, suppose A deliberately takes B’s crucial  organs. This may because he hates B or just because he wishes to use the organs to save others. A is captured and is no longer a threat. However, the only way to save B is to transplant all of A’s organs into B. I think doing so is permissible.  Going even further, suppose the organs have been transplanted into morally innocent C who would otherwise have been dead. He is what I call an innocent beneficiary of the crime. It may even be permissible to remove the organs, causing his death, in order to save A. This is because the innocent beneficiary is no worse than he would have been if he is deprived of his ill gotten gains. Hence, if TKN only deprived bystanders of life they have as an illgotten gain from injustice, they too might be used to help the victims of the injustice.  	
Or suppose the lesser intended evil to person A would lead to a greater good for person A himself. For example, if it is impermissible to intentionally paralyze A as a means to a greater good, it would still be permissible to do this as the alternative to permissibly killing A as a mere side effect. This is because it is much better for him. Or, suppose someone would die very shortly anyway and killing him as a means would do a great good for others. For example, consider the following scenario: We will permissibly produce a great good by innocent means despite the foreseen evil side effect of killing Joe and Jim. Then we are told of an alternative: we could bring about the great good by intentionally killing Joe as a means and without harming Jim. Since Joe will be no worse off than he would otherwise permissibly be, I believe it is permissible to kill him as a means.
Is the DDE’s prohibition of intending evil absolute when it is narrowed to intending evil to nonconsenting, never-threatening, never-benefiting persons who cannot themselves but be made overall much worse off by the evil? The bombing of Hiroshima is a case of intentionally killing many noncombatants who fulfill this condition of a narrowed prohibition. However, John Rawls, in an article attacking the morality of the U.S. bombing of Hiroshima, also claims that such a type of bombing could be morally permissible in some circumstances. For example, Rawls believes that if Britain had stood alone against the Nazis in World War II, was about to lose the war, and such an attack on German noncombatants could reasonably prevent the Nazi victory, it would have been permissible. These are very high standards to meet, but if they do make terror bombing of noncombatants justifiable, then the DDE even with a much narrower prohibition is not absolute.
Here is another possible example. The policy of mutual assured destruction pursued by the United States and the Soviet Union targeted noncombatants for destruction by nuclear weapons. This targeting was a threat undertaken as a means to prevent war. Was this impermissible? Or is it permissible because it is only a case of intentionally threatening to do what it would have been impermissible to do? But would it not be permissible to arrange for an attack on noncombatants to be undertaken automatically (by a doomsday machine)—at least when the attack would cause a lesser evil relative to achievement of a greater good at that very time it is undertaken -- if only the threat of such an attack would prevent an attack by one’s opponent?? (Arguably, threatening noncombatants helps avert war and makes a country’s policies more cautious because no one can shift the threat to himself away onto a “disposable” soldier. Still, this alone is not enough to justify the policy.)
I have mentioned Warren Quinn’s view that treatment of another as a mere means for our profit adds an additional objectionable element to conduct. But this element, on his view, does not make action absolutely wrong; it merely raises the bar for the reasons one must give to engage in it. Hence, it seems to me his view allows that it could be wrong to bring about much greater harm to a group simply as a foreseen side effect when one could instead cause much less harm to a different group by treating them as a mere means. 
Rawls and Quinn are examples of “threshold deontologists”: avoiding some great cost can override the prohibitions. Rawls, as we have seen, considers a case in which terror bombing is the only option and the just cause is sufficiently important (the last step in Figure 1). By contrast, in discussing Quinn, I have suggested that his approach to the DDE would permit overriding the DDE even if there is an alternative way to achieve our goal. So, in his reasoning, the cost that goes beyond the threshold is not necessarily only the defeat of one’s great just cause. The cost that goes beyond the threshold can be the difference between the cost of each possible course of action. That difference might be too great to merit staying with action 1 rather than doing action 2. This is true even though if action 2 were not available, it would be worthwhile to use action 1. In particular, this is true when the difference in cost between the courses of action is the same as a cost that we might permissibly make it our goal to avoid by overriding the DDE. For example, suppose for the sake of argument that it would be permissible to terror bomb some hundreds of noncombatants to stop a million different noncombatants from being killed as a mere side effect. Suppose it would also be permissible to use the only available means to stop the Nazis winning the war, even though it will, as a side effect, kill a million people. Then, it should be permissible to terror bomb hundreds to stop the Nazis in order to avoid having to do what kills a million different people. 
Overriding prohibitions raises many questions pertaining to the status of persons. A way of understanding what is going on is as follows: Suppose prohibition expresses the respect for the dignity of persons and reveals something about their status as persons. We wrong the person if we violate the prohibition. If it is wrong (i.e., impermissible) to do the act that wrongs the person, even as the costs of not doing so go up, then the wrong we would do him must be very serious. The fact that it would be impermissible to treat him in the prohibited way is a mark of his status. Suppose the costs go above a threshold and it becomes permissible, that is, not wrong to override the prohibition. Still, we can be wronging him in doing the right act, as evidenced by the necessity of compensating him, for example. The fact that he is still wronged and the fact that a great cost was needed to make it not wrong to wrong him are marks of his high status. This status, however, no longer gives rise to the impermissibility of treating him in certain ways. That, too, is a mark of his status as it would be even higher if an even greater cost would have to be sustained rather than wrong him.
(C)  Let us assume that the prohibition on terror killing never-threatening, never-benefiting persons who have not consented and who cannot but be made overall much worse off is not absolute. Our question will then be whether it is the DDE that explains the existence of a nonabsolute prohibition on TKN of this sort. The first problem with claiming that it does is the Problem of Narrow Intention, emphasized by Jonathan Bennett. He notes that a terror bomber might truthfully say that his intention is only to make the children appear dead until the war is over, as that is enough to get the enemy to surrender; he does not intend that they be dead, he just foresees that the only thing he can do to make them appear dead (bomb them) will certainly also kill them. His certainty as to their death is no greater than the certainty of the person who foresees deaths as a side effect of bombing the munitions plant to destroy weapons. The DDE would then rule this so-called terrorist act to be permissible. 
One approach to dealing with this problem, suggested by Warren Quinn, is to revise the appropriate object of intention. The DDE so-revised [DDE(R)] would say that it is inappropriate to intend an evil but also to intend involvement of noncombatants without their consent when we foresee that this will result in evil to them. Let us call this joint object of intention evil*. The terror bomber, but not the strategic bomber, intends evil*, since he intends involving the people knowing that harm will come to them, though in the standard case, the strategic bomber only foresees evil*.
(D)  The third problem with the DDE (and also for the DDE(R)) is more general: we cannot, contrary to the DDE, derive the permissibility or impermissibility of an act by considering the state of mind of the person doing the act. Consider a case suggested by Judith Thomson. Assume that strategic bombing is only permissible if the pilot merely foresees evil*. Suppose the pilot selected to bomb the munitions plant in strategic bombing is someone who would not have taken the job unless he knew that the children would be killed as a side effect. For it has always been a goal of his in life to kill some children and he sees his bombing of the plant as a means of achieving that goal. Does the fact that he intends the evil* (here as a final goal rather than a mere means) and would not go on the mission if the evil* did not occur mean that it is impermissible for him to bomb the munitions plant? Must we wait until we find a bombardier who does not intend that the children die either as a means or goal? I think not. I agree with Thomson that an act is permissible because of its properties not because of the intentions—or as Kantians would put it, the maxim—of those who perform it. One may do a permissible act for a bad reason. Hence, the DDE is incorrect because it would declare as impermissible acts that are permissible. 
	What seems crucial in distinguishing terror from strategic bombing is a non-state-of-mind property: the bombing of the munitions plant, even if it were unaccompanied by the deaths of the children, produces a good that is thought sufficient to justify bombing, even when it actually also produces the evil*. Whether achieving this good serves as a motivating reason or only as an excuse for a particular agent to do what will kill children is irrelevant to the permissibility of the conduct. If we (mistakenly) conceive of TKN cases as only ones in which someone directly attacks noncombatants, aiming to hit them, we will probably be imagining cases in which nothing but hitting the children brings about a good greater than the evil*. In these cases, evil* will be a cause of the greater good. By contrast, in the cases where blowing up the munitions leads to greater good, a neutral means, not an evil*, is a cause of the greater good. This difference in causal structure—not states of mind—helps account for the sense that there is a difference in moral permissibility of the acts of the strategic and terror bomber in standard cases. 
Hence, when the pilot has a terror intention (or even seeks the death of the children as a final goal) but he bombs a munitions plant that causes a good to which the deaths of the children is proportional, his act is as permissible as the act of a strategic bomber without these intentions. If terror cases that have typically been contrasted with strategic bombing cases are ones in which the means of hitting the children do not themselves produce a great good, and the harm to the children (or their involvement leading to harm) causes the greater good, this helps account for the mistaken conclusion that it is the intention of the bomber that makes the moral difference. 
It is possible to understand the DDE and DDE(R) as non-state-of-mind theories not interested in the reasons of agents for acting. Instead, one can understand them as focusing on causal structure as well, ruling out evil* as a means to greater good, at least in the first instance. Understood in this way, the DDE and DDE(R) are still subject to the next objection. 
(E)  The fourth problem with the DDE, shared by the DDE(R), is that it is incorrect when it claims to justify strategic bombing. Hence, it will declare permissible some acts that are impermissible. The DDE and DDE(R) are perfectly general, moral doctrines, here applied to a wartime context. But, as Philippa Foot pointed out long ago, the DDE leads to the wrong conclusion in nonwar cases. This is because it is not true, as the DDE and DDE(R) hold, that it is always permissible to act by neutral or good means to bring about a greater good when we merely foresee that a lesser (proportional) evil will occur. For example, suppose I must rush five people to the hospital to save their lives. On the road I must traverse is an immovable person (Car Case I). May I run over him, since I foresee but do not intend his death, and his death is a lesser evil by comparison to saving five lives? I think not. 
But, it may be said, this Car Case I is not strictly analogous to what happens in strategic bombing. For, though we do not intend to involve or harm the person in Car Case I, we do intend to drive over the spot that he already occupies (though not because he occupies it). Something comparable would only be true in a strategic bombing case, if we bombed a munitions plant in which children were immovably lodged, though not because they were there. But that is not how the strategic bombing case is typically described.
This complaint, raised on behalf of the DDE(R)’s ability to justify strategic bombing does not eliminate the problem the DDE(R) has with Car Case I. It does not declare impermissible action in Car Case I that is impermissible. Furthermore, it does not yet show that strategic bombing is permissible in the standard case. The complaint, however, does help us to see another problem with the DDE(R), namely that it does not attend to the various ways in which the evil* that is a side effect might come about and the possibility that these differences make a moral difference. Suppose another principle—call it Principle X—explains why action in Car Case I is impermissible. If only a general moral principle like Principle X is needed in order to decide war and nonwar cases alike, then Principle X will at least declare impermissible strategic bombing when the children are immovably lodged in the plant, unlike DDE.
Here are some other possible ways in which strategic bombing may cause death as a side effect: (a) our bombs, before or after they hit the plant, also hit and kill the children who are not in the plant, but near it; (b) the blowing up of the plant itself causes the death of the children near it; (c) our bombs not only hit the plant but they hit the roof of the nearby schoolhouse that falls on and kills the children; and (d) our bombs that hit the plant also cause an avalanche of rocks; the rocks land on the schoolhouse roof, which caves in and kills the children.
 	I suspect that (a) is the way strategic bombing is typically conceived. The DDE(R) would permit it. Would action be permissible in an analogous nonwar case? Consider Car Case II: We have to rush to the hospital to save five people. The road is clear to the hospital, but there is someone immovable at the side of the road. We know that the car we will drive has an unavoidable tendency to emit  deadly fumes. Hence, it will kill the person at the side of the road. May we proceed in this case because the death of one is a less bad side effect by comparison to the greater good we seek? I do not think we may proceed, but the DDE(R) would allow it. (I do not think that we may proceed, even if the “bystander” is far away but will die from the fumes.) If this is so, then we have another reason to think that Principle X, not the DDE(R), is necessary to account for permissible and impermissible action in nonwar cases, and that Principle X would rule out strategic bombing in (a). I believe that Principle X (which I have described elsewhere but will not describe here) may permit bombing in (b) and (d). 
But, what if we think bombing in (a) is permissible, though action in Car Case II is not? Then, we may have to consider the possibility that the special context of war is introducing special factors that override in some ways a general principle like X. These factors are in addition to any general factors, such as extraordinarily horrific consequences, that account for the nonabsoluteness of Principle X. I shall return to this possibility in Section III.
(F)  The Car Cases and their analogous Strategic Bombing Cases raised concerns that the DDE(R) declares as permissible acts that are impermissible. The fifth problem with the DDE and DDE(R) raises the same concern in a different way. Suppose that country A is waging a just war against country B, whose unjust acts make A’s war just. Country B lies to the west of A. Neighboring country B on its west is Country C, which is neutral in this war. There are several ways in which a munitions plant in B can be bombed. In route A, A bombs the plant and the foreseen side effect is that some of its own children living on the border with B get killed. In route B, A bombs the plant and the foreseen side effect is that some of B’s children in B are killed. In route C, A bombs the plant in B and the foreseen side effect is that some of C’s children living on the border with B are killed. In all these cases, let us assume the evil* is proportional to the good to be achieved. If the DDE(R) were sufficient to account for the permissibility of strategic bombing, then no moral distinction should be drawn between these different routes. If the number of children killed were fewer using routes A and C, then the duty given by the DDE(R) to minimize noncombatant deaths in all permissible ways should make it a duty not to choose route B. The important point these cases bring out is that the DDE(R) treats all noncombatants the same; noncombatants who are citizens of the enemy country and/or reside in the enemy country do not have a lesser status when it comes to harm. (The same is true for Principle X.) 
But I do not think, even if a form of strategic bombing is permissible, that all three routes are on a moral par nor that country A must always choose the routes with fewer deaths, other things equal. Indeed, I think that if the DDE(R) or Principle X declares route C as permissible as the other routes, it would permit the impermissible. If this is so, then even if strategic bombing of some sort were permissible, and even if the DDE(R) or Principle X were the principle in part explaining such permissibility, some principle in addition to these (call it Principle Y) must play a role. The DDE(R) or Principle X could at most be necessary not sufficient conditions for permissibility. For example, country A may have a special, strong, positive duty to care for its own citizens that interferes with acting on a principle that permits causing harm equally to them and to others. (Analogously, if it is permissible to turn a trolley away from five people toward one, one may have a duty not to turn it toward one’s child because of a special, strong duty of care one has to him, and rather turn it toward someone else.) That is, while the status of noncombatants in the enemy country B is not lowered relative to a standard baseline, special care raises the status of those in A. This explanation depends on duty not to harm one’s own citizens rather than noncitizens, if someone must be harmed in a permissible manner. But there is an alternative explanation: One may conceive of the situation as one in which country A must decide whether to harm itself or harm someone else, both options involving permissible ways to harm people. It may simply be superorogatory (not forbidden because of a duty) to direct the threat to oneself rather than send it to someone else to whom it is also permissible to send it. Analogously, suppose a trolley is headed toward killing five people and it is permissible to redirect it along another track towards killing one person instead. One track leads to Joe and the other to me. It is not impermissible for me to turn the trolley to Joe rather than toss a coin between me and Joe. Furthermore, it is not impermissible to turn the trolley to Joe, even if I would, in the absence of his side track, refuse to save by the five at all by turning the trolley onto myself.Notice also that even though it is permissible for me to turn the trolley toward Joe, it is also permissible for him to send it back. Neither of us is required to sacrifice himself. 
But I also think that it is impermissible for A to choose route C. Indeed, it may be more impermissible to choose route C, killing neutral’s children, than to choose route A, killing A’s own children. This cannot be because A has a special duty of care for citizens of C. Nor can it be because we have a duty not to bomb a neutral country, since we are not bombing them. We bomb the plant in B, and (we can imagine), the plant’s blowing up sends deadly fumes into country C. This suggests that noncombatants in B, and even perhaps in A, have a lower status relative to each other than other noncombatants. (I shall return to this in Section III.) 
In sum, the proposal is that in activities undertaken by A in its just war against B, noncombatants in B and A may both fall below the status baseline for other noncombatants, but A’s duty of special care to its own noncombatants or a self/other asymmetry compensates partially, making this status lower than C’s but higher than B’s. This leaves it open that very large numbers of deaths in B should be avoided by choosing route A when it kills a much smaller number in A. That is, there may be some ratio in place between A, B, and C noncombatants such that when, for example, A acts, n deaths in C are worth, 3n (but not more) in A, and 5n (but not more) in B.
Finally, keep in mind that in just war theory based on a general moral principle, the DDE(R) or Principle X would be combined with a strong preference for killing combatants before noncombatants. This implies that no strategic bombing that will kill noncombatants as a side effect is allowed if combatants can be sent in to fight other combatants instead. Combatant casualties are at least strongly discounted relative to noncombatants not only of the homeland but of the country with which one is engaged in a just war. So, n noncombatant deaths in A might be worth 20n A combatant deaths and 40 B combatant deaths. It is only relative to B’s combatants that A’s combatants have as great a value as A’s noncombatants, so that n A combatant deaths might also be worth 40n B combatant deaths. This equivalence of A noncombatants and A combatants relative to B combatants does not interfere with the 20:1 ratio between A combatants and A noncombatants, since combatants may have reduced status only relative to some and not others. In sum, expendability, from the point of view of a country waging just war, in increasing order is : A noncombatants, B noncombatants, A combatants, and B combatants.
If there is only a discount ratio between combatant and noncombatant deaths, then Figure 1 is wrong to claim that if one has nonterror or terror means to use against combatants, one should act and stop rather than consider harming noncombatants. Figure 1 also does not distinguish between harming one’s own and an opponent’s combatants or noncombatants. It would have to be further modified to take account of the possibility that not only its opponent is subject to harm by an agent.  
Hence, relying on an air war rather than sending ground troops may violate jus in bello. United States nervousness since Vietnam to have large combatant casualties may result in violation of standard just war principles. It might also, of course, prompt reconsideration of the legitimacy of preference for noncombatants, at least enemy noncombatants over combatants of one’s own country if one is waging a just war.
These results depend on considerations of jus ad bellum, for if the war A is fighting is unjust and A knows it, its own combatants and noncombatants may have greater responsibility to shoulder burdens than those of B. A’s duty of special care to its citizens gets replaced by a concern it and its citizens must have for their victims. Then expendability in increasing order might be B’s noncombatants, A’s noncombatants, B’s combatants,  A’s combatants. If accompanied by reconsideration of the preference for combatant deaths of the just side over noncombatants of the unjust side, this ordering might put the expendability of the unjust A’s noncombatants higher than that of B’s combatants. 

III
A.  Suppose, as has been argued, that the DDE(R) as a general moral principle is incorrect. Suppose that the correct general Principle X rules out both terror bombing and some cases of strategic bombing, for example, where our bombs directly kill noncombatants located elsewhere than where we aim to bomb (type (a)). While this prohibition need not be absolute, in most circumstances, the goals to be achieved by bombing would not override the prohibition, and other means would have to be used, unless some consideration present in wartime invalidated the application of Principle X in some respects. What might such considerations be, and do they validate strategic bombing (a) and TKN? In this section, I shall present two arguments for special circumstances overriding Principle X, only one of which seems plausible to me. 
Consider the following argument, which I shall call the Shared Sovereignty Argument: Just states typically have the authority to draft some of their own citizens to become combatants. Having the right to send combatants to fight and perhaps be killed by the enemy is the right to intentionally put people in danger as a means to a goal, a right not typically held by just anyone. Hence, if just anyone sent people into danger, he would violate Principle X. Even the right to send people into danger is not exactly the right to deliberately kill one’s own soldiers as a means to a goal. For example, it is not clear that a just state not in the most dire circumstances may kill its own soldiers (who do not volunteer for death) in order to mislead the enemy about its military capacities and, thereby, win a war. That is, it may not terror kill its own combatants whilst others conduct is available.
What might a just state do to its own noncombatants, including children? Suppose that it must deploy from its own territory missiles against the enemy or else surrender. However, the missiles sometimes backfire and cause deaths among civilians around the area where they are deployed. Efforts are made to minimize such harm, but some of it is unavoidable. Presumably, a just state at war is permitted to use the missiles in many cases. Yet, if just anyone did this, he would violate Principle X. (In nonwar emergencies, perhaps a state may do similar things to its own citizens. Then, the factor of war will be needed only to explain the permissibility of its doing these things to some noncitiziens.)
A state is permitted to do these things to its combatants and noncombatants despite its having a special duty to care for its own citizens. I have not here given an argument for the state having these powers. At this time, all that will be argued is that if a state may do these things to its own citizens, and in essence, override the applicability of Principle X in some respects, it may do similar things to the citizens of the country against whom it wages just war. For example, strategic bombing that directly harms noncombatants of an enemy country is supposed to be the parallel to the case of backfiring missiles. Furthermore, a state has no special duties of care toward the citizens of other countries the way it has toward its own citizens. This implies two things: (1) If there is a choice between endangering its own noncombatants or those in the country it is fighting, it can favor its own noncombatants at least to some degree, and (2) If it may cause harm x, even in the presence of a duty of care, it is possible that it may cause harm x+n to others to whom it has no duty of care. Even independent of such a duty of  care, selecting oneself rather than another whom it is  also permissible to harm is supererogatory conduct. Finally, suppose A would rather forgo a goal in a war rather permissibly harm itself for the goal when harming itself is the only way to achieve the goal. This does not mean that it may not still permissibly impose such permissible costs on its opponent. (This was discussed above, p. ___, by analogy with a trolley case.) A state may not be able to favor its own combatants relative to the other country’s noncombatants, however, since, arguably, they have been assigned the task of bearing risks not only for their fellow citizens who are noncombatants but for all noncombatants.
Does the prohibition on a state, except in the most dire cases, terror killing its own nonvolunteering citizens, combatants or noncombatants, to achieve wartime goals imply anything about what it may not do to citizens of the country it is fighting? Could it be that it is only the duty of special care that stands in the way of the deliberate killing of its own noncombatants and even combatants for wartime goals? If not, then the grounds for the prohibition may apply quite generally to citizens of the country it is fighting, and will rule out terror bombing of combatants and noncombatants, except when general constraints on Principle X apply. Of course, its combatants are not helping an unjust cause and not conscientiously committed to helping an unjust cause. Hence, it is still possible that those who are threats, conscientiously helping an unjust cause, or satisfy other conditions described in Section II (B) (whether one’s own citizen or those of the enemy country) could be terror killed. 
An interesting question is whether a country fighting a just war has something like the authority to even draft citizens of the country it is fighting. If so, it would have a right to expose those “draftable” noncombatants to dangers comparable to the ones to which it can expose its own combatants. Note, however, that its own combatants are permitted to defend themselves against the risks presented to them by combatants they fight. But if a state may treat as drafted some of the citizens of the state it is fighting, it will be drafting them to accept risks from the very same state that drafts them. Something comparable may exist in the case of the risks of so-called friendly fire. 
Here is an objection to this Shared Sovereignty Argument for overriding parts of Principle X: A state may draft its own citizens and expose them (even children) to risks and harms because it is acting on their behalf as a collective. Citizens are to accept these risks and harms for the good of the collective of which they are a part in wartime. Perhaps this justification is not strong enough, but the point to focus on now, this objection claims, is that this possible justification does not apply at all to the citizens of the opponent state. “Why,” these citizens may ask, “should you impose risks and harms on us for your good when it is not for our own good?” In this question, there are two claims: (i) it is not for our good that risks and harms are imposed on us, and (ii) who are you—not our state—to impose them on us as you impose them on your own citizens? 
Here is a possible answer to the first question: If one’s country is engaged in a just war that satisfies jus ad bellum, then its enemy country has done something sufficiently unjust to support a war against it. Citizens of a country should undergo risks and harms in order that their country not be unjust, as much as in order that their country’s interest be promoted. (I am here accepting a distinction, for the sake of argument, between being just and promoting one’s interests.) This claim was also relied on when we revised the order of expendability for an unjust state in Section II.
Here is a possible answer to the second question: A state that is at war, at least the unjust state, loses, with respect to its opponent, the exclusive authority of a sovereign state over its populace. Its citizens can be enlisted in the service of the state waging just war against it, just as that state’s own citizens can be enlisted. This accounts for the title, “Shared Sovereignty Argument.” (The title may even be too modest, for it is not clear that the state engaged in unjust war has any legitimate authority to draft its own citizens.)
What about neutral states, like state C in our example, involving B and A at war? The theory now being presented distinguishes, I think, between what A may do to citizens of B and what A may do to citizens of C. Not all states have an obligation to fight injustices to A. And even if it were good for C that A triumph over B, just as it is good for A and its citizens that A triumph, C has done nothing to lose its right to decide by itself what goods it will pursue and whether its citizens will be enlisted to help A. This is unlike B, I have argued. Hence, A’s conduct toward C is still governed by Principle X. Suppose a certain type of strategic bombing against the plants in B is not permitted by Principle X because of the effects on citizens in C. Then, A may not engage in such a type of strategic bombing, except to the extent that Principle X is nonabsolute for perfectly general reasons, such as horrific consequences. Notice that a self/other asymmetry cannot be used to show that a course of conduct against a neutral country is permissible; it can only be used to decide between conduct that has already, on independent grounds, been shown to be permissible. (This is why it was important to give some grounds for thinking one could  permissibly do things to an opponent country,  before using the self/other asymmetry to account for selecting among permissible acts.)
Suppose an agent other than a state has passed the various just cause and legitimacy points on the checklist given in Section I. Then, does the same exemption offered by the Shared Sovereignty Argument from Principle X that applies to a state apply to this other agent in its relations with the combatants and noncombatants of its opponent? Only if we can answer “yes” to this agent’s having moral (if not legal) authority to enlist and endanger citizens on its own side, subject to a special duty of care to them or  self-other asymmetries discussed above. Hence, their refusing to sacrifice people on their side for a goal (even if it were permissible to sacrifice)  need not always interfere with the permissibility of harming others for this goal.
This analysis speaks of what an agent that satisfies jus ad bellum may do. In reality, each side may think itself as having the just cause. Only the one that is really in the right is entitled to override Principle X. If one had good reason to think one was in the right when one was not, one’s impermissible overriding of Principle X may be excusable, though, of course, not justifiable. And if it was not reasonable for one to think one’s side was in the right, one’s impermissible overriding of Principle X is punishable. 
B.  Here is a second argument that might be offered to override prohibitions supported by Principle X. I call it the Shifted Responsibility Argument. It points out that Car Cases I and II omit a feature present in war and when we add it to nonwar cases, Principle X may itself allow more harm bystanders. This feature is that the country with just cause for war has to act in a way that endanger people because it is treated unjustly by another country. Hence, perhaps some or all of the evils that are necessary for its defense may be done by it, but become the moral responsibility of the unjust country. Let us add this feature to produce Car Case III: A is trying to escape an unjust attack by B in a car that he knows will veer off course, killing bystander C. May he try to escape in this way rather than impose greater risks on himself by not using the car? May he try to escape in this way if it is his only way to go? May he shift responsibility for C’s death from himself to B? I do not think A may do these things. 
Might A do these things if he has four other people with him whom B will also kill? Again, I do not think the introduction of an evildoer makes it permissible to override Principle X even to produce a greater good. Though this is not because the five should not make C bear the cost of their rescue. For if A and the five could redirect B’s threat to C away from them, this might be permissible according to Principle X itself. (Principle X should explain the moral difference between these different ways of threatening C.)
This suggests that in war, too, one cannot, in general, override the constraints of Principle X by transferring responsibility for evil* that one does to the unjust country. A recognized exception is when a country itself puts bystanders in the way of what would otherwise be a just response to its threat that would have hurt no one. Then moral responsibility for deaths caused by A’s permissible strategic bombing are put at the doorstep of the agent who moved people into harm’s way, to use them as shields or hostages. The option of redirecting the threat discussed above also suggests that we could develop a device that conforms to Principle X and would insure jus in bello. It is a defensive screen that would deflect threats to A’s noncombatants from an aggressor back to his own population, if the numbers of noncombatants thus killed would be minimized. (Recall that Principle X is neutral as between one’s own noncombatants and one’s opponents, hence minimizing is required.)
There is an additional element that might be added to strengthen the Shifting Responsibility Argument: Suppose the bystander in Car Case IV supports the unjust agent by encouraging his threat to A and those with him. Then he is not such an innocent bystander. Does this not diminish the “bystander’s” immunity? It may depend on whether he is merely cheering, providing supplies, or something in between. Some of these are activities he undertakes now that help make him into part of the threat since he makes it possible, let us suppose without his activities making anything else good possible as well. As already mentioned, even moral innocents, such as children, can be part of the threat in virtue of their activities, and then they may be subject to harm. But suppose someone was previously a supporter of the combatants. Might their immunity be lowered? Only, I believe, if they were not morally innocent threats. It is in lowering the immunity of past threats that reasons for being a threat seem relevant. But having moral fault for activities unrelated to the current war does not lower immunity. Hence, former child bomb producers, former drafted combatants, and criminals serving sentences for civilian crimes may not have lowered immunity, but retired volunteer combatants for the unjust cause might have lowered immunity. Can we deny there is diminished immunity simply by saying that it has been decreed that, in the “game” we are playing, only those who actually pursue A along with the threatening agent have diminished immunity? I do not think so. 
This version of the Shifting Responsibility Argument is very different from the first version. It does not merely insist that it is permissible to wrong the bystander, but moral responsibility for the wrong goes to the evildoer. Rather, it insists that the bystander is not wronged for responsibility for the evildoer is, in part, his.
The moral objection to threatening even a supplier bystander comes if he is amongst other bystanders who have not supported the unjust acts of the evildoer, and these bystanders would also be threatened. The protection that Principle X affords these other bystanders is not overridden by the presence of an evildoer who might be held responsible for evil* A  does or by evildoer’s supporters amongst the bystanders. Hence, I believe this second Shifting Responsibility Argument fails to justify strategic bombing (a) in which children are killed.

IV
Michael Walzer has done much to reintroduce just war theory and to give a big role in this theory to the DDE, and to the distinction between combatant and noncombatant deaths in war. Recently, he has argued that just war theory has been a success insofar as even the military establishment has accepted it. My conclusion is that just war theory based on the DDE fails and so may not deserve its success. A further conclusion is that any other general moral principle, such as Principle X, will also fail as a basis for just war theory. If it is true that such acts as strategic bombing (a) are justifiable in nonhorrific circumstances, factors specific to war that override the applicability of such a general moral principle may be  necessary in order to justify much conduct that is commonly thought to be part of jus in bello. Terror killing in nonhorrific circumstances seems most likely to be permissible either on  (1) those who are currently or were previously conscientiously committed to threatening on behalf of the unjust cause that one is currently opposing , or on (2) those whose lives are illgotten gains from injustices one is currently opposing. 

ENDNOTES