Defense of Terrorism

Here is Dr. Viminitz’s argument surrounding the defense of terrorism

A DEFENCE OF TERRORISM
Paul Viminitz

Philosophy, U. of Lethbridge

Abstract

In this paper I argue from legal realist premises to the sub-conclusion that, popular misconception to the contrary notwithstanding, there is no immunity of non-combatants, neither in law nor in morality, and thence to the conclusion that terrorism is not only permissible but permissible categorically. Moreover, where neither championing nor passive resistance are available, terrorism may even be morally mandatory.

A DEFENCE OF TERRORISM

I. SOME BACKGROUND FUNDAMENTALS

Every day we hurdle ourselves towards each other on a narrow strip of blacktop at a combined speed of 120 miles an hour with nothing to protect ourselves save a paper-thin layer of plastic. We do so on the supposition that

1. there won’t be an earthquake which, at the last second, will cause the pavement to suddenly fall away. We do so on the supposition that
2. the manufacturers and mechanics charged with servicing our vehicles are keen to see to it that the steering doesn’t fail us. And we do so on the supposition that
3. the driver of the oncoming vehicle has as little reason to aim at, rather than to the right of, us as we have to aim at, rather than to the right of, him. Furthermore, every day tens of millions of us step blithely into a crosswalk with nigh-absolute confidence that
4. oncoming traffic has reasons to stop for us that trump virtually any the driver might have to just truck on through.

The task of the physical scientist is to explain how we can suppose (1). Her task is relatively easy. The task of the political philosopher is to explain how we can suppose (2) and (4). His task is much more difficult.
It’s also the task of the political philosopher to explain (3), but (3) is relatively unproblematic. Situations like meeting oncoming traffic are just (what game theoreticians call) straightforward coordination problems, by which is meant an interaction in which our interests coincide. Each of us just wants to get safely past the other, each knows that each wants nothing more than this, each knows that each knows this, and so on. So all that remains is to settle on what joint strategy to adopt to give each of us this first choice. In the absence of such a strategy we do the all-too-familiar-but-usually-just-comical dance. But at 120 miles an hour we don’t want to step on each other’s toes! So the strategy we’ve adopted, in North America at least, is, “Aim to the right of the oncoming vehicle!”
(2) and (4), by contrast, are a tad more complicated. Neither the manufacturer nor the mechanic wants to put the requisite money and/or time into quality control. But neither do they want the rest of us to cut corners on the goods and services we provide them. Similarly, because time is money, the truck driver prefers not to brake. And though he has no particular reason to want to see me dead, he’s indifferent, suppose, as to whether I live or die.# Generalizing over this preference matrix - and in the absence of arrangements designed to alter that matrix - life would be, as Thomas Hobbes put it, “solitary, poor, nasty, brutish, and short”. And it’s so for all of us, including the truck driver, since on some other occasion it might be me threatening to run him down. So what we’ve done, it would appear, is given him reasons to replace his first choice - I die, he saves a few seconds - with what was his second - I live, he loses a few seconds. And we do this, in turn, by threatening to make his life much more miserable if he does run me down than it’ll be if he brakes and loses those few seconds.
The explanation for (2) and (4), then, is that such situations are (what we call) mixed motive impasses, for which the solution is, as already noted, to alter the order of our preferences. When the means of doing so is some kind of intra-mental adjustment, we call such adjustments moral. When the means of doing so is some kind of external sanction we call such arrangements political.
Now allow me to put all this on the back burner while I turn to …

II. GIVING OFFENCE

As Canada’s foremost philosopher-of-war-as-such - probably because I’m Canada’s only philosopher-of-war-as-such - it came as no surprise to me that I should be inundated with invitations to opine on the events of 911. I’ve been loathe to accept these invitations, and for very good reasons. The climate immediately following the events of that day has been such that anything I might have been wont to say would have been received as either highly offensive, highly partisan, or both. Let’s deal with the offensiveness first.
The first thing I’d have wanted to say would’ve been, “Relax, people! More people are killed by drunk drivers in a week than were killed in the collapse of the World Trade Centre. So your chances of being killed by an act of terrorism are considerably less than those of being killed by a drunk. Did the latter dissuade you from driving here today? No? So neither should the threat of a hijacking dissuade you from flying rather than driving to visit your folks next weekend, nor persuade you to cancel the trip altogether. Eventually the time, expense, and inconvenience of driving will trump the irrational fear of flying and all will return to normal.# In time more sober minds will prevail and the economic effects of these irrational risk assessments will be washed out. So, in short, notwithstanding the quaint rhetoric of ‘After 911, our world will never be the same!’, nothing really changes under the sun. 911 is no more significant than the O J Simpson trial. It’s a story. It’s not a news story.”#
That, as I say, is what I’d have wanted to say. But I’d have been ill-advised to say it. Why? Because, as it turns out, our fears are not in direct proportion to real danger, nor even to perceived danger. They’re the product of what risk analysts call ‘bivalent’ modelling of the world.# Erstwhile we North Americans conceived of our continent as an essentially friendly place. Now we conceive of it as a hostile one. To point out that it’s in fact no more hostile today than it was on September 10 is insensitive to our predilection for bivalence. That is, to ask aloud, “So what’s the big deal about 911?!” is isomorphic to - and so as offensive as - wondering aloud, “Provided there’s no tissue damage, what’s the big deal about rape?!”
The ‘big deal’ about rape is not the tissue damage; it’s the attack on one’s sexual autonomy. Similarly, then, the big deal about 911 is not the 4,000 lives lost, nor the nigh-one-trillion-and-still-counting in damages, but the sense of having exited a predictably friendly world and entered a unpredictably hostile one. It’s that we used to be able to suppose we could hurdle towards each other down a narrow strip of blacktop at a combined speed of 120 miles an hour confident that the oncoming driver values his life as highly as we value ours. We used to be able to suppose that the truck driver was at worst indifferent as to whether we live or die, or that even if he felt murderous towards us he’d be dissuaded by the dire consequences for him if he ran us down. Both suppositions have been retired by the events of 911. And that’s what’s the big deal about 911. It is, to repeat, not the actuarials, nor even the perception of the actuarials. It’s the distress of realizing that there are people out there who really would rather die in a head-on with us than suffer us to live, or would rather go to jail than refrain from running us down.
But if, as I’ve argued, the number of such people is too minuscule to significantly alter our actuarials - if, that is, our distress is not about being unsafe - why should the realization that there are such people distress us?
One answer is that it has to do with the discomfort of being hated. But this is implausible. Jews and Arabs, Catholics and Protestants, have been hating each other for centuries. We all thrive on such hatred! So what’s brought these people to the negotiating table is not that they’ve ceased to hate each other, but that they’ve tired of fearing each other. That is, the streets of Jerusalem really are more dangerous places to be than the highway connecting Jerusalem and Tel Aviv, as were the streets of Belfast more dangerous than the ring-road surrounding it. But, as just noted, even with 911, downtown Manhattan is not more dangerous than the New Jersey Turnpike. So there must be something else going on here.
Or, perhaps, nothing at all. That is, it might just be that, not unlike the O J Simpson trial, we’re bored and we’ll seize on anything that promises to put some high drama in our lives …
But wait! Would anyone deny any of what’s just been said? To what purpose, then, save gratuitous offense, might one say what everyone already knows?!

III. APPEARING PARTISAN

But I also said that whatever I’d have had to say would come across as partisan. Here’s how:
It’s certainly true that once I become convinced that to kill me you’re willing to go to jail - or if need be even die yourself - the first thing I’m going to do is try to protect myself. And this will be so even if - as might well be the case here - I’m prepared to concede that you have every right to want me dead. And if the best way to protect myself is to kill you first, that will certainly be my first priority.#
But having said that, one would hope that I’d take the time to wonder

1. what I might have done such that you so vehemently want me dead. Or - what amounts to the same thing - to wonder
2. what I could do such that you’d cease to want me dead.

But, in the wake of the events of 911, to even raise such questions is to announce oneself as on the side of the so-called terrorists. Worse yet, to call the perpetrators of 911 ‘so-called terrorists’ rather than terrorists simpliciter is doubly partisan. And yet (1) and (2) are precisely the questions I’d have been inclined to ask. And ‘terrorist’ is precisely the term I’d have been inclined to deconstruct.
Raising such questions and questioning such terms among professional philosophers wouldn’t count as partisan. But this is hardly a defence against a charge of partisanship were I to do so before an audience or readership of lay persons. Are the events of September 11 far enough behind us that such questions can now be raised? We’re about to see.

IV. A POLEMIC

My mother was already old when, finally accepting her barrenness, she acceded to my father to have their maidservant Hagar bear them a son. His name, recall, was Ishmael. Subsequently Sarah did conceive. But when Isaac was born Sarah prevailed upon Abraham to send Hagar and Ishmael into the wilderness to perish. There God took pity on the hapless mother and child, led them to water, and blessed Ishmael as the father of a nation no less great than that God promised would be fathered by Isaac.
Three years ago - which is to say four thousand years later - my Anglican wife and I were at a conference in Tel Aviv. The only Palestinian we saw on the entire campus was an elderly char woman, trucked in each morning from the desert to clean our toilets, and trucked back out again each evening when we had no further need of her. Apparently Hagar is still maidservant to Abraham and Sarah.
Two years earlier my wife was in Jerusalem without me, in the Old City. A young Palestinian - who, had history gone differently, might have been a scholar at that university in Tel Aviv - was selling himself as a guide to American and European tourists. He offered. She declined. He pressed. She refused. He insisted. She drew away. Whereupon he turned and over his shoulder shouted back to her, “Fucking Jew!” This he said to my Anglican wife! This is what my half-brother Ishmael has been reduced to by my rapacious mother Sarah, my spineless father Abraham, and my iniquitous brother Isaac.
As of 911, the Palestinians have been an occupied people for over 54 years.# Some Palestinians - the so-called ‘moderates’ represented by Yasser Arafat - have long since come to accept that this occupation is likely to be permanent. Since the occupying power has an official policy of apartheid, what remains to the Palestinians is some kind of semi-autonomous state in the very desert to which Ishmael was banished by Abraham and Sarah. They’re prepared to accept this, not because they think it in any wise just, but because they’ve been litigating with Israel and the international community for their share of their inheritance for 54 years to no avail#, and they’ve come to think it’s the best they can hope for under the circumstances.
Other Palestinians, by contrast, are not prepared to accept this. They think they can do better by fighting for
their birthright, over the issue of Palestinian refugees, over the return of, or at least compensation for, expropriated lands, over the Jewish settlements question, over East Jerusalem, indeed over the very existence of the Jewish state!
And, it would appear, they’re right. That is, it was the first Intifada that gave the Palestinians what little territory and provisional self-government they currently enjoy. This second Intifada, though costly, is designed to get them a tad more. But here’s the point: It’s not for us to judge whether those gains are or are not worth the price being paid in Palestinian lives and limbs.
But nor is this a judgment to be made by these so-called ‘extremists’ alone, any more than it was for the IRA alone to judge whether the continued struggle for a free Northern Ireland was or was not worth the price of the Troubles. Just as it was in large measure the Catholic mothers of Belfast who finally forced their husbands and sons to give up the fight for a free Northern Ireland, so it might be that someday the mothers of Palestine will force their husbands and sons to give up the fight to expel the Israelis from Palestine. But the Palestinians are equally entitled to hope that it’ll be the mothers of Israel who’ll break first and pressure their husbands and sons to make some kind of accommodation with the Palestinians.
This is a war of nerves, a war of resolve. But just as the Israelis had much less to lose in 1948 - they, recall, had nowhere else safe to go - so the Palestinians have much less to lose now, which is why they can afford a much higher body count. Until 911 that body count was disproportionally in the favour of Israel and its allies. But even 911 has fallen far short of evening the score.
By supporting the State of Israel militarily since its inception, the United States of America has been at war with the Palestinian people for over half a century. But not just against the Palestinians. American forces in Saudi Arabia are arguably all that stand between the Saudi royal family and ignominious overthrow. Likewise in Jordan and Egypt. Thus from the perspective of many Moslems, Egypt’s Mubarek and Jordan’s Hussein are no less Quislings than was the Shah of Iran, or the current regime in Pakistan.
The claim that Islam abhors liberal democracy is clearly disingenuous. None of the American puppet regimes in the region are democratic. And as to liberality, blasphemy remains a capital offence in most of these countries. Neither is Israel a democratic country, any more than was South Africa under Apartheid. Most Palestinians are not Israeli citizens, and those that are are barred from bearing arms. Non-Israeli Palestinians have no civil liberty claims against the occupying power whatsoever. The Israeli Supreme Court has only recently reversed an earlier judgment allowing torture. The Israeli army has consistently violated the Hague and Geneva conventions concerning the rights of occupied peoples. Shatilla and Sabra in 1982 are precisely isomorphic to Babi Yar in 1943.
From what’s just been said it might be supposed that I’m therefore pro-Palestinian. Such would be the wages of speaking philosophically to non-philosophers! But I’ve said nothing of the sort! In fact if push came to shove, as a Jew I’d be fighting for Israel with nary a thought to the Palestinian children whose heads I’d be blasting off with the shells aimed at their hillside shanties. Two peoples, mine and theirs, each want the same piece of territory, and neither, it would seem, is prepared to share with the other. What choice is there but war?!
But going to war doesn’t require that one bethink himself somehow in the right.# As I indicated earlier, we have as much right to go to war against those who’d disturb our security, or even our prosperity, notwithstanding that it was we who disturbed theirs first. As Hobbes opined, in war “The notions of Right and Wrong, Justice and Injustice have there no place … no Propriety, no Dominion, no Mine and Thine distinct.”#

V. THE IMMUNITY OF NON-COMBATANTS

“Not so!” comes the rejoinder. Even supposing any notion of asymmetry in jus ad bellum is inappropriate here# - and only the propagandist who’s swallowed his own propaganda could suppose otherwise - even in war there are rules of engagement. And among those rules, surely, is the immunity of non-combatants. So notwithstanding the right of the occupied peoples of the Middle East to make war on their occupier and its allies - and if need be to bring that war to the shores of those allies, e.g. the attack on the Pentagon - the attack on the World Trade Centre violated the immunity of non-combatants. And it’s for that reason that we are - and justifiably so - in such high dudgeon.
Let’s translate this rejoinder into game theoretic terms. What’s being said here - and quite rightly - is that war is a mixed motive game. This isn’t an analytic claim, because it’s at least logically possible that when we say, for example, “We shall suffer no Papist to live!” we mean that not as a mere battle cry but as our actual war objective. And if so, such a war would not be mixed motive, and so there’d be no logical space for constraints on our behaviour. But no real war - including the so called ‘War on Terrorism’ - is actually like that. We talk the talk of such uncompromise, but we’d be fools to walk the walk of it. If bin Laden could credibly threaten the Americans with a weapon of truly mass destruction, the Israelis would be out of the West Bank within the hour.# Thus the rhetorical flourish, “We don’t negotiate with terrorists!”, though it makes for good press, is oxymoronic.
“We don’t negotiate with terrorists!” is oxymoronic because if a terrorist is

someone who terrorizes a population with a view to persuading
the government of that population to accede to his demands,

and if he knows that that government won’t accede to his demands, then he’s someone who undertakes an exercise, at considerable expense to himself, for a purpose which he knows can’t be realized. But no rational person undertakes such an exercise. Thus to refuse to negotiate with a terrorist is, by definition, to render him no longer a terrorist. It’s to render him at most a vandal, by which, presumably, is meant

someone who terrorizes a population as an end in and of itself.

Much of the post-911 rhetoric makes precisely this charge, i.e. that there’s nothing that bin Laden wants other than to destroy, and so there’s nothing that can be offered him to dissuade him from continuing to destroy. Such rhetoric is innocuous enough, provided policy-makers don’t buy their own rhetoric. But apart from the what’s-the-go’ment-I’m-agin-it types, most of us know, in our heart of hearts, that policy-makers aren’t really that stupid!
One could, of course, adopt a policy of not negotiating with terrorists as a kind of pre-commitment strategy. But this just invites the terrorist to counter with a pre-commitment strategy of his own, namely to terrorize the target population notwithstanding that its government has adopted a policy of not negotiating with terrorists. If the terrorist adopts that strategy - which is precisely what a savvy terrorist will do - the government will be well-advised to revise its pre-commitment strategy. Thus “We don’t negotiate with terrorists!” is just double-speak for “Of course we negotiate with terrorists, but the terrorist in question has yet to convince us of a) the resources available to him, b) his resolve to employ those resources, and c) our inability to absorb the punishment attendant on those resources and that resolve.”
But, it might be countered, though no rational person undertakes an exercise he knows to be futile, the terrorist remains a candidate for irrationality if either a) the objective of the exercise is itself irrational or b) the means of achieving that objective are irrational. But this just returns us to our previous problem. It’s certainly our right to oppose his ends and/or his means. But, as before, it’s not for us to judge whether those ends and/or means are rational for him. Of course we don’t think the way of life he wants to preserve is worth preserving. If we did we’d be importing his way of life rather than exporting ours. Off course we don’t think our loss of the World Trade Centre is a proportional means to getting our McDonalds and Patriot missiles out of Arabia. But that’s because Arabia isn’t our country.
Still, presses the objector, as already noted, there are constraints on these means other than means-end efficiency, are there not? What about the Geneva and Hague conventions? What about international law? What about the whole just war tradition, both jus ad bellum and in bello?
These what-about’s, quaint as they are, reveal an egregious misunderstanding of the nature of law. Let’s clear up that misunderstanding.

VI. WHAT IS A LAW?

Suppose there was a pronouncement from on high that commanded

1. That shalt p and.

Since such an utterance is not a well-formed formula, it’s incoherent, and as such couldn’t count as a law. Suppose it read something like

2. Thou shalt p and not-p.

3. is coherent, but it violates the axiom that ought-implies-can. So neither can it count as a law. Suppose it read something like

4. Thou shalt not exceed the posted speed limit by any speed
   greater than you’re exceeding the posted speed limit.

(12) is both coherent and follow-able. The problem is that it’s impossible not to follow it. And so, since law must be coercive, it too fails to count as law. Then suppose it read something like

4. Thou shalt not park in a handicapped zone,

but no provisions are made to enforce this prohibition. Then, though (4) could count as entreaty, it couldn’t count as law. And, finallly, suppose it read

5. Thou shalt not park in a handicapped zone unless you’re handicapped, [but]
   what it is to be handicapped is just to so self-identify.

Suppose that, unlike (4), (5) is coupled with provisions for enforcement. And, note, unlike (3) it is possible to run afoul of (15). One could simply refuse to self-identify as handicapped and yet park in the handicapped zone nonetheless. But what (5) would amount to, at least effectively, is a requirement that all parkers self-identify as handicapped. This would, of course, be a silly law, but it would be a law nonetheless.#
So, to summarize, a law, to count as such, must be 1) coherent, 2) follow-able, 3) coercive, and 4) enforceable. And, if it’s not to be just a silly law, it must show some promise of achieving what it hopes to achieve, a.k.a. it must be 5) efficacious. But these are necessary conditions, not sufficient ones. What remains in dispute among philosophers of law is how, if at all, to understand each of two further conditions, namely 6) pedigree and 7) promulgation. Let’s deal with pedigree first.

VII. PEDIGREE

Divine command theory - the view that a law is a law just in case it’s authored by God - can be dismissed ab initio on what’s come to be known as Euthyphro grounds. Euthyphro is the Platonic dialogue in which Socrates shows that for divine command to be of any normative import, the good must be ontologically prior to God. And so, since we have to consult our own moral judgments to identify which of God and Satan might be speaking, citing God as the author of law can do no work for us.
Worse yet, at least for our purposes, is that even if God’s commandments were taken to be the authoritative with respect to jus in bello, He, recall, is neither a respecter of non-combatants - remember the first-born of Egypt? - nor even an advocate of such respect - recall His instructions for the ethnic cleansing of Canaan.
Legal positivism, by contrast, hangs its account of pedigree on what H L A Hart calls ‘rules of recognition’. On this view, and baldly put, a law is a law just in case those subject to it give uptake to the procedures by which it became the law. If not, not. On Hart’s view, then, the Nuremberg laws were laws alright, they were just bad laws. So bad, in fact, that one had no obligation to obey them, and indeed an obligation to disobey them.#
Natural law theorists, like Lon Fuller, by contrast, prefer to hold on to the intuition that if it’s a law then one ought to obey it. So to accommodate the further conviction that the Nuremberg laws ought not to have been obeyed, Fuller includes moral acceptability among the conditions of a command being a law in the first place. So on the positivist view a law is a law notwithstanding that we needn’t, in the moral sense, obey it. On the natural law view if we needn’t obey it it isn’t a law.
If we parse this debate we quickly see that nothing substantive can hang in the balance. It’s true that, according to Hart, if I defy the Nuremberg laws I’m a criminal. But this is only an unwelcome consequence of the positivist view if, at the same time, we think criminality is something to be ashamed of, which, in the case of the Nuremberg laws, it’s not.
What might matter, however, is the notion of ‘right authority’. If you rip me open with a knife, even if you repent and sew me back up afterwards, you’ve committed an assault. Not so if you’re a surgeon. Similarly, a jailer can’t be guilty of unlawful confinement. Likewise, then, not just any act of violence authored by anyone can count as an act of war, and therefore fall under the rules of war. To make war, as distinct from committing a mere crime, one must have the authority to make war. And this, some might argue, is the sole prerogative of sovereigns. And it is for this reason that bin Laden is to be judged as a mere international criminal rather than a legitimate freedom fighter.
But what counts as sovereign authority, and therefore authority to make war? It can’t be enough that

1. one be able to command the obedience of those subject to one’s will.

For then there’d be no way to distinguish taxation from highway robbery. Nor is it enough to add that

2. those subject to that will regard themselves as such.

For if (1) and (2) were sufficient, the conduct of any gang of thugs could count as subject to military judgment rather criminal.# It must also be the case that

3. those with whom the gang in question are engaged recognize that conditions (1) and (2) are met.#

Of course by ‘recognition’ here I don’t intend an epistemic term but rather a performative one.#
The problem with insisting on (3), however, is that it rules out as oxymoronic the very idea of a war for recognition. By definition there could be no such thing as a war of independence. So, since the recognition component of the rightful authority requirement would seem to be ineliminably question-begging, some philosophers of war, myself included, would prefer to drop it altogether, leaving the distinction between war and criminality, if such a distinction there be, hanging entirely on (1) and (2).
This has the virtue of making the attack on the World Trade Centre an act of war rather than of mere criminality. And of making Bobby Sands a prisoner of war. But, nota bene, at considerable cost. For now we can no longer distinguish between a soldier and one of Tony Soprano’s hit men. Nor can Timothy McVeigh be distinguished from Bobby Sands. Clearly something beyond (1) and (2) seems required. But what?
My own view is that this additional condition cannot but itself be military. That is, (3) should be replaced with

(4) it behoves those with whom the gang in question is engaged to process their strategic thinking about that gang in military rather than political categories.#

But nothing in the present analysis hangs on my being right about this.

VIII. PROMULGATION

What does have to be cashed out, however, is how we’re to understand promulgation. The traditional view - running from Hobbes to Austin - would have it that law, to count as such, must be promulgated explicitly. Otherwise it amounts to arbitrary state action. Since the early 1950’s, however, a more ‘liberal’ view has emerged, inspired by Wittgenstein, motivated by the jurisprudential difficulties of the Nuremberg and Eichmann trials, and canonically articulated by Hart in his Concept of Law. The difficulty, recall, was that

1. no law, extant between 1934 and 1945, could be found that Eichmann could be said to have contravened, and
2. though retroactivity in tax law has long since been deemed indispensable for purely ‘policy reasons’, retroactivity in criminal law is thought to be an egregious violation of both natural justice and policy requirements.

Hart’s solution, to both (1) and (2), was to suppose the prior existence of an implicit law against genocide against which Eichmann offended.
The problem with this solution, of course, is that it courts rendering positive law epistemically indistinguishable from natural law. Natural laws are those which are supposed by their advocates to be either a) inscribed onto our hearts (a.k.a. legal intuitionism) or else b) rationally discoverable. And the problem with postulating natural law is that it quickly devolves into legal moralism. You just know that homosexuality is contra natura. I’ve rationally derived that the Sabbath is Saturday, not Friday or Sunday!
We can avoid these dangers, however, by adopting an even more radically Wittgensteinian analysis, according to which law is a report on legal judgments rather than the, or even a, determinant of them.# That is, law is descriptive rather than normative. How so? Well, just as the rules of English grammar describe the way English-speakers speak rather than determine what is or isn’t an English utterance, so law, rather than governing the way the court can rule, merely predicts which way the courts will rule. Laws are normative, then, only insofar as prediction of consequence informs behaviour.
And why is this ‘radical’? Because in the wake of the O J Simpson trial, for example, one might reasonably predict that, in California at least, one will not be convicted of a crime if those investigating the crime are manifestly racist. Hence killing under such circumstances is not, in fact, illegal. And this is, if not counter-intuitive, certainly an odd way of speaking. Odd but, on the view under examination, correct.
What’s most important to note about this view, at least for our purposes, is that the law immunizing one from successful prosecution in such circumstances was in effect at the time of the killing but was only promulgated at the moment of O J’s acquittal. And if that’s so, then likewise can it be so that the law against genocide, though only promulgated at the moment of Eichmann’s conviction, was already in effect at the time when that genocide was committed. That Eichmann could not have known that he was violating the law at the time that he violated it is certainly a regrettable consequence of this view. But we could view this consequence as just a case of moral luck. O J Simpson lucked out. Adolf Eichmann did not.

IX. CHAMPIONING, PASSIVE RESISTENCE, AND TERRORISM

Now then, if this is right, or even approximately right, then we’re finally in a position to look more specifically at the jus in bello ‘law’ - so-called or not, we’ll have to see - concerning the targeting of non-combatants.
George Mavrodes argues that the laws of war - not unlike the rules of grammar - are neither natural nor posited. They’re reports on the constraints constitutive of the practice of war. And as such they’re to be updated as the practice evolves. How came we, then, to have thought there’s a law against targeting innocents? As follows:
Mavrodes imagines an ‘original position’ in which the immunity of non-combatants was not the convention. One day two brave souls - one from each of two sides poised to square off against each other - rushed forward, engaged in single combat, and your champion killed ours. Since the champion your champion killed was our best, we induced that, were the battle to continue, your side would best ours. And so rather than await this nigh-inevitable outcome, we raised our white flag and acceded to your demands.
In the wake of this we noticed that of the two practices - all against all and champion against champion - the latter was pareto-superior. That is, no one, including our vanquished champion, was any worse off, since he would have been killed anyhow, and at least someone - indeed most of us - were considerably better off. And so the practice took root and stuck. What began as an accident became an experiment, the experiment self-replicated, and eventually a purely descriptive claim - “We don’t do that!” - came to be understood as a normative one - “That’s just not done!”
Note, however, that the practice depends upon a key meta-understanding, that being that if your champions best ours we’ll accede to your demands. That is, you go to war against our champions, and only our champions, on the supposition, and only on the supposition, that

if you best our champions we’ll bend our will to yours.

Absent that understanding the practice forfeits its pareto-superiority. What we call passive resistence, then, is simply

the withdrawal of that understanding.

And we call it passive resistence because, absent that understanding, nothing’s settled by your besting our champions, and so it ceases to make sense for us to even have any champions.
The most useful understanding of terrorism, in turn, then, is as
the withdrawal of the understanding that we’re party to the practice of championing,

and therefore of civilian immunity. And one engages in terrorism rationally, and therefore defensibly, when championing is not, or no longer, pareto-superior.
Neither pareto-superiority - nor, for that matter, pareto-optimality - is a knockdown reason to adopt the pareto-superior or pareto-optimal strategy or practice. We’ve already seen this earlier when we considered the rationality of pre-committing to pareto-inferior strategies or practices. But pre-commitment complications aside, there’s powerful, nigh-irresistible, natural negative selective pressure against sub-paretian practices. In the war between Palestinians and Israelis, confining oneself to championing is grossly sub-optical for the Palestinians. Palestinian stone-throwers are no match for Israeli tanks. Targeting instead the Israeli civilian population is no more dangerous than stone-throwing. One dies either way. But the rest of the Palestinian population is considerably better off, since the outcome of any negotiations between the two sides is, ex hypothesi, a function of body count.#
Championing, passive resistence, and terrorism are what we might call pure strategies. But most conflicts - including the ongoing one in the Middle East - are conducted with recourse to a mixture of these strategies. No one wants to practice passive resistence. Nor is any terrorist unmindful that recourse to terrorism invites retaliation in kind. But the fewer the conventional military resources available to them, the more a people must rely on passive resistence and/or terrorism. The Palestinians rely on both. Likewise does bin Laden.

X. DOUBLE EFFECT

But in noting that terrorists are well aware that their terrorism invites retaliation in kind, I have in mind the Israelis and Americans no less than the Palestinians and bin Laden. As I noted at the outset, the Israelis and Americans have been practising terrorism in the Middle East for over half a century. The hoi polloi and propagandists will pretend that there’s a morally relevant distinction between collateral damage and the intentional targeting of civilians. But no military strategist buys into this fatuous distinction. The Principle of Double Effect may be of Jesuitical use when justifying a therapeutic abortion, but it’s utterly disingenuous when applied to military contexts. If champions and civilians can’t be separated physically without egregious prejudice to the former, an attack on our champions just is an attack on our civilians. It is, and it’s intended as such, as revealed by the standard test for the intentional content of an act. That test is this:

In virtue of what is Israeli shelling of Palestinian residences self-replicating?

In virtue of the champions such shelling bests? Or in virtue of the terror it strikes? Clearly the latter.

XI. SUMMARY

Let’s sum up. The term ‘terrorism’, as it’s currently employed - both by propagandists and, as a result, by the hoi polloi - is a plastic term, little more than a stand-in for ‘Them!’ But if the term is to do argumentative, as distinct from rhetorical, work for us, we’re going to have to stipulate. Furthermore, if we want our disapproval of terrorism to be substantive rather than merely analytic, we need a morally neutral understanding of the term. Otherwise “Terrorism is wrong!” would be about as interesting as “Murder is wrong!” Of course murder’s wrong, since it just means wrongful killing.
I’ve proposed that we understand terrorism as the failure to subscribe to the practice of championing or, more commonly, the cancelling of that subscription. Terrorism is wrong - or, if you prefer, unlawful - if but only if one’s a subscriber to the practice of championing. It would be unconscionable for a people with a vastly inferior conventional military capacity to subscribe to that practice. So for them, at least, terrorism isn’t only morally acceptable. It may well be morally mandatory. It’s certainly morally mandatory for those Palestinians who’ve been suffering under the yoke of Israeli occupation for 54 years. And it’s at least morally permissible for those, like the clients of bin Laden, bridling under satellite yokes.
And, last but not least, the much-touted immunity of non-combatants can’t be grounded in divine command, God having commanded nothing of the sort. Neither can it be grounded in natural law, there being no such thing. It must, therefore, be grounded, if grounded at all, in positive law. Positive law, in turn, requires both pedigree and promulgation. A law enacted by states can’t have pedigree for those who don’t consider themselves subject to that state. Indeed who may be flighting to free themselves from that state. Thus enactment is a question-begging mechanism for the coming into being of law. A law that comes into being by convention, by contrast, needs neither explicit articulation nor external enforcement. Thus the law immunizing non-combatants, if it exists, exists whether or not it’s explicitly articulated. Hence the Eichmann trial, though perhaps unjust on independent grounds, was not ultra vires on grounds of non-promulgation.
What remains, then, is whether there’s a law immunizing non-combatants where the complainant and respondent stand in vastly asymmetrical positions vis a vis the rationality of subscribing to the practice of championing. And the answer is clearly no. So though it’s quite understandable - perhaps even psychological requisite - for both the Israelis and the Americans to whip themselves into high moral dudgeon over the terrorism directed against them, that moral outrage is utterly unwarranted. They had it, quite literally, coming!

Moved from Essay & Theses

In the middle east joint American-Israeli parties represent the origin of defining whether your a terrorist or not.