Unraveling Emergency Justifications and Excuses for Terrorism more

Unraveling Emergency Justifications and Excuses for Terrorism Shawn Kaplan Is it conceivable that indiscriminate terrorism can ever be justified or excused?1 To deliberately target the “innocent” with any sort of political violence, regardless of how one conceives of “innocence” or liability to attack, is a clear prima facie wrong. Whatever harms inflicted upon those who have done nothing to forfeit their rights to life, bodily integrity, liberty, or property are taken ex hypothesi to be unjustified. While not all indiscriminate political violence is terrorism, it is the targeting of the “innocent” that primarily makes acts of indiscriminate terrorism morally problematic. In addition, it is often noted that indiscriminate targeting, whether by terrorist groups or more traditional military units, tends to provoke a like response from one’s opposition such that there is an escalation toward total warfare (i.e., warfare where no limits are set regarding the means of fighting). As someone sympathetic to the just war theory premise that not all wars are necessarily total wars and who believes that one significant goal of theorizing about political violence is to arrive at principles which will help to avoid the barbarism of total warfare, I take this second concern quite seriously. On the other hand, absolute prohibitions upon the targeting of the innocent face a number of philosophical challenges, both from those who are less than comfortable with absolute moral claims in general and those who believe that extreme circumstances may place the principle of noncombatant immunity in conflict with other equal or weightier values, principles, or ideals. Broadly speaking, my opening question most often either receives a resounding no or some small room is left open for justification or excuse under extreme circumstances or emergency conditions faced by either a state, a nation, or some sub-national group. I contend that once one begins to analyze the arguments from extremity used to excuse or justify indiscriminate terrorism one discovers a broader rationale for conceivably excusing or justifying such acts and which does not require an emergency per se. In fact, based upon such an analysis, I will argue that some less extreme forms of indiscriminate terrorism can be more readily justified in response to a range of injustices and rights violations which do not constitute emergencies. For the purposes of this paper, I take the principle of non-combatant immunity to prohibit any violent attack upon individuals who, during armed conflict, have done nothing to forfeit their rights to life, bodily integrity, liberty, or property.2 Though there is a lively debate as to how any individual forfeits such rights, JOURNAL of SOCIAL PHILOSOPHY, Vol. 42 No. 2, Summer 2011, 219–238. © 2011 Wiley Periodicals, Inc. josp_1527 219..238 220 Shawn Kaplan my concern in this paper is with the issue of whether this prohibition can be overridden regarding non-combatants. More specifically, I examine how two distinct arguments from extremity construct moral dilemmas whereby the overriding of the principle of non-combatant immunity is claimed to be either justified or excused. I argue that both arguments as currently construed fail and that the nature of these failures points out the limitations of many consequentialist strategies for overriding the deontic principle of non-combatant immunity. The first of these arguments is presented by Michael Walzer under the heading of “supreme emergency.” While Walzer’s argument from supreme emergency in Just and Unjust Wars bears a resemblance to his earlier argument that we ought to excuse political leaders who get their “hands dirty” in promoting the public good, his notion of supreme emergency has evolved since its initial articulation such that it differs from “dirty hands” insofar as it is both far more restrictive and is explicitly based upon an appeal to an ultimate valuation of political and religious communities.3 After analyzing Walzer’s current position more fully, I will focus upon two problems directly associated with the communitarian underpinning of his theory. I will argue that Walzer’s communitarian emphasis at once produces unreasonable limits upon his argument from extremity and, due to its vagueness, permits an expansive set of troubling excuses for indiscriminate terrorism that far exceed Walzer’s intent. The second argument from extremity that I examine is found in Uwe Steinhoff’s On the Ethics of War and Terrorism.4 Steinhoff avoids Walzer’s communitarian emphasis in favor of a rule-utilitarian, liberal approach to questions of indiscriminate political violence. According to his rather Lockean account, an emergency exists when there is not an effective, external authority to either protect the innocent from aggression or to punish and deter aggressors. Under these “emergency” circumstances, Steinhoff argues that indiscriminate terrorism can be justified for the weak by means of a rule-utilitarian rationale. Though I find Steinhoff’s rule-utilitarian argument from extremity more plausible than Walzer’s argument from supreme emergency, I argue that it is unacceptable as it offers little protection from total warfare becoming normalized as a result of escalation and backlash. The view that I will support shares with Walzer and Steinhoff the acknowledgment that the right of non-combatant immunity should not necessarily be held above the value of survival, whether construed as individual or communal survival. While they both propose that emergencies posed by threats to the survival of innocent people establish a justification or excuse for a resort to indiscriminate violence of the greatest magnitude, I argue that such emergencies would also serve to justify or excuse indiscriminate terrorist violence that inflicts non-lethal harms but violates innocent people’s rights to bodily integrity, liberty, or property. In addition, I contend that not only are such less extreme forms of indiscriminate terrorism more easily justified or excused but also that, once it is acknowledged that indiscriminate terrorism can be lethal or non-lethal, a possible lower limit justification might be sought under conditions that are not emergencies per se but Unraveling Emergency Justifications and Excuses for Terrorism 221 ongoing injustices that involve either significant rights violations or the rights of some not being effectively protected. Walzer on the Specific Wrongs of Indiscriminate Terrorism In order to be clear as to what is being excused or justified and what specific value is being overridden in Walzer’s argument from extremity, I will first examine what specific wrongs he believes are committed by a resort to indiscriminate terrorism. For Walzer, most non-combatants are disengaged civilians who are not dangerous to the opposition and, thus, have done nothing which entails the loss of their right to immunity. As such, their being targeted and killed is equivalent to being murdered for Walzer. Walzer is adamant that terrorists always target disengaged non-combatants (i.e., the innocent) and, thus, are murderers.5 Still, Walzer attempts to distinguish the wrongness of terrorism from other forms of indiscriminate political violence. How is terrorism different than wartime civilian massacres and other similar crimes? On this point, Walzer has most recently departed from his previous position and claimed: “This is the wrong of terrorism: The murder of the innocent and the creation of a devalued collective, a group of men and women who have been deprived of the right to life or, alternatively, of the right to live where they are living.”6 While the general disregard for non-combatant lives during war may also be equivalent to murder, it may not seek to “devalue the collective” for which they are members. For example, the massacre of a village where terrorist forces are hidden may seek to effectively eliminate this enemy without placing one’s own soldiers at increased risk. While this is a clear example of a war crime, it does not necessarily communicate the message Walzer believes terrorists invariably send: The message they deliver is directed at the group: We don’t want you here. We will not accept you or make our peace with you as fellow-citizens or partners in any political project. You are not candidates for equality or even co-existence.7 For Walzer, terrorists attempt to tyrannically impose their will upon their opposition, whether that be to force them out of the territory or to so disenfranchise them that a negotiated peace is not needed. As a matter of course, terrorists violate the jus in bello principle of non-combatant immunity in a way which undermines the possibility of jus post bellum. While I am not convinced that terrorists do not in fact sometimes send more modest messages (e.g., negotiate with us or risk being a target in this conflict), it is important to recognize the distinguishing marks by which Walzer differentiates terrorism from other forms of indiscriminate political violence so as to fully grasp his supreme emergency argument. These marks are found not in the terrorist’s stated aims (which may sound rather limited) but in the totalizing purpose they supposedly communicate to their victims of “destruction, removal, or radical subordination of a people.”8 For Walzer, the 222 Shawn Kaplan distinguishing wrong of terrorism is thus a threatened harm to a political or religious community—ranging from its elimination to its complete subjugation. Supreme Emergency Walzer’s claim regarding the wrongness of terrorism runs parallel to his notion of a supreme emergency where a political community is threatened with imminent extinction or enslavement.9 The self-acknowledged paradox of Walzer’s emergency ethics is that it can be used to excuse terrorism which supposedly threatens precisely the same type of harm which one is trying to escape from in such emergencies. “Supreme emergency” describes those rare moments when the negative value we assign— that we can’t help assigning—to the disaster that looms before us devalues morality itself and leaves us free to do whatever is militarily necessary to avoid the disaster, so long as what we do doesn’t produce an even worse disaster.10 Supreme emergencies are not faced by individuals but by a collective community—whether political, cultural, ethnic, or religious. Walzer does not believe we should override the moral limitations placed upon an individual’s self-defense even under the most extreme circumstances. For example, no matter how much danger an individual faced, she should not attempt to escape by attacking the family of her opponent. This is true both in civil society and during war. (As we shall see, Steinhoff questions this position in his account of a justifying emergency.) While Walzer asserts that soldiers can be asked to place themselves at greater risk so as to preserve the immunity of non-combatants, an entire people cannot be asked to risk their communal future when it is truly in jeopardy. Walzer emphasizes that he is not associating the military defeat of a nation state with a supreme emergency. “[T]he state is nothing more than an instrument of the community, a particular structure for organizing collective action that can be replaced by some other structure. The political community (the community of faith too) can’t be similarly replaced.”11 A state cannot die. It can be defeated, have its constitution overturned, reformed, or annulled, and it will be replaced by another state, perhaps one with greater or lesser merit. Communal death, however, is a real possibility for Walzer. Hence, the crux of Walzer’s current position is that only when a political or religious community (as opposed to a state) is at imminent risk of extinction or enslavement can the principle of non-combatant immunity be overridden and an act of indiscriminate terrorism excused. When our community is threatened, not just in its present territorial extension or governmental structure or prestige or honor, but in what we might think of its ongoingness, then we face a loss that is greater than any we can imagine, except for the destruction of humanity itself. We face moral as well as physical extinction, the end of a way of life as well as of a set of individual lives, the disappearance of a people like us.12 Unraveling Emergency Justifications and Excuses for Terrorism 223 The powerful communitarian premise at work in Walzer’s theory of emergency ethics becomes clearer when we realize that in his conception a political community is not a neutral framework established to protect an agreed number of rights. Such a liberal conception of community misses the value which Walzer believes is at risk within a supreme emergency. Alternatively, from his communitarian standpoint, a framework of rights is established to support and preserve a common way of life that is distinct to a particular community or nation. Hence, one can understand why the imminent threat of communal death “devalues morality itself” for Walzer as his conception of rights presupposes a communal basis. Walzer believes that it is a basic lived reality that we not only value our collective way of life but are committed to its continuity over generations as it is a central “source of our identity and self-understanding.”13 Without such powerful emotional commitments to the continuation of one’s own community (and its fundamental values), Walzer acknowledges that there might be fewer wars fought, fewer emergencies faced, and no supreme emergencies at all.14 Yet, these emotional attachments that inform identity stand as a brute fact that Walzer believes we cannot escape. I will not contest this central premise of Walzer’s argument as that would far exceed the limits of this essay. Instead, I wish to consider how this intense valuation of community becomes the theoretical basis for excusing acts of indiscriminate terrorism. It is not sufficient that one’s “way of life” is being threatened (as was often asserted by the post-9/11 Bush administration) to declare a supreme emergency. The destruction of an entire people who may propagate this way of life into the future must be imminent. Any act of aggression places the rights protecting a community’s common way of life at risk. This risk plays a central role in motivating a people toward national (or communal) defense. When faced with military defeat, a people can expect damage to and limitations of their common way of life. However, Walzer points out “we commonly expect the physical and moral survival of the defeated nation; we even look forward to its renewed resistance.”15 This becomes impossible when the genocidal intent of the opposition is made manifest. So long as defeat to such an enemy is not imminent, every legitimate military and political alternative must be exhausted. If defeat and genocide become imminent, then Walzer concedes that the “immoral” response of targeting non-combatants can be excused so long as such terrorism has any probability of stopping the genocide.16 There is some controversy as to how to interpret Walzer’s claim that such targeting remains immoral under supreme emergency. On one reading, Walzer presents a tragic dilemma where both alternatives (allowing genocide and targeting innocents) are equally immoral and, thus, both are equally excusable. However, this neither captures Walzer’s claim that morality itself is devalued under supreme emergency nor does it jibe with his claim that communal death is a consequence only outweighed by the destruction of humanity.17 A more promising interpretation is that Walzer hopes to capture two distinct intuitions in his paradoxical claim. On the one hand, morality is devalued—not eliminated—when 224 Shawn Kaplan communal death is imminent. We are not thrown into a state of nature where morality is suspended until a new social contract can be established.18 The principle of non-combatant immunity only ought to be temporarily overridden by those facing supreme emergency and, while this excuses any blame post factum, it does not make it completely right to target the innocent—only less wrong than allowing genocide. Even though judging that the targeting of the innocent is less wrong can be taken as an ex ante justification, Walzer’s paradoxical claim preserves his second intuition that guilt should be felt by those who do override the principle of non-combatant immunity. Such guilt matches the gravity of actions carried out under emergency circumstances where one is far from proud for targeting the innocent but supposedly had no alternative but communal extinction. Either way, the wrong being permitted or excused is not only the killing of innocent people (those not engaged in war acts or acts of genocide) but the devaluing of the collective to which these victims belong. On the one hand, extremity allows for a consequentialist comparison between the terrorist killing of some innocent people versus the physical and moral destruction of a people. Under supreme emergency, the normal rights of non-combatant immunity can be overridden as the alternative is “a loss of value greater than men and women are morally obliged to bear,” viz., the physical and moral destruction of their community.19 On the other hand, the tyrannical message sent by terrorist attacks during supreme emergency can also be excused as the targets of genocide cannot be expected to accept their opposition “as fellow-citizens or partners in any political project” for the future. To send the totalizing message that one intends to eliminate, or completely subjugate the opposition, rather than allow the physical and moral extinction of one’s own people is excusable. The question of a just settlement between equal parties has already been made moot and a settlement will have to be imposed, possibly under an unconditional surrender. Terrorist attacks under any less extreme circumstances can never be excused for Walzer as they would then threaten mass murder and communal devaluation in order to oppose something of lesser consequence. Criticisms of Walzer Walzer’s willingness to override non-combatant immunity only for the sake of preserving a future people who share some collective identity or way of life leads to some disconcerting results. If some mix of diverse people who share a geographic locale but no collective way of life is threatened with extermination or enslavement, Walzer’s approach does not offer them the same recourse to protect themselves as the more tightly bound community. In effect, Walzer’s criterion of supreme emergency is only satisfied by genocidal violence as opposed to massacres of equal proportion where there is no communal identity at risk. At the same time, Walzer’s standard of imminent extinction or enslavement seemingly discounts the possibility of ongoing emergencies like those resulting from established institutions of slavery or totalitarian oppression.20 Unraveling Emergency Justifications and Excuses for Terrorism 225 Consider for a moment Stalin’s purges during the 1930s. Initially, individuals with connections to rival factions within the Soviet Union were arrested; however, by 1937, a program of rounding up people who were simply deemed “anti-Soviet elements” was instituted and a quota was set for the number of arrests to be made and the percentage of prisoners to be executed. “According to official central records, 681,692 persons were executed in 1937–8.”21 In addition, it is thought that for this same period of time that the total number of deaths due to execution as well as the brutal conditions in work camps and prisons was between one and one and a half million. As detailed in official documents, arrest and execution quotas were set for each geographic region and for each sector of society, for example, the military, state agencies, local administrators, and so on. “The impact of the Great Terror was deep and wide and was not limited to specific political, administrative, military, cultural, religious and national groups.”22 While these atrocities were not focused upon eliminating a people with a common identity, it seems arbitrary to claim that these people did not face just as great of an emergency as those facing genocide. I am not suggesting that large-scaled massacres and genocide are perfect moral equivalents. However, to argue that a threat to the ongoing existence of a people provides an unique excuse to resort to desperate, indiscriminate measures not shared by people facing large-scaled massacres leads to an unacceptable dismissal of their emergency conditions. By placing imminent communal extinction as the sole consequence by which the deontic limit on indiscriminate targeting can be overridden, Walzer has employed a strategy for not allowing consequentialist excuses to expand. While one might agree that excusing indiscriminate targeting by calculating the number of innocent people at risk versus the number of innocents killed by indiscriminate violence is problematic at best, Walzer has unconvincingly placed communal survival as a value above the survival of a similar number of individuals. Innocent people facing imminent genocide or ongoing massacres from a more powerful oppressor both confront emergencies of selfdefense, regardless of whether their communal identity is in peril of extinction. I have not made the case that either emergency situation is a sufficient reason for overriding the principle of non-combatant immunity. However, if those facing Stalin’s terroristic regime could strike at disengaged non-combatants who were either supporters of Stalin or somehow immune from being targeted in an attempt to stop his purges, then why would they not be equally justified or excused for doing so as those facing genocide?23 With the exception of communal identity being at risk, both instances are quite similar. Both sets of disengaged non-combatants may have had limited knowledge of the atrocities being committed and have had comparable influence upon their state’s horrific policies. Again, my point is not that Walzer’s supreme emergency argument establishes a sufficient excuse in either case—only that if one is willing to override non-combatant immunity for the sake of communal survival, then one must also concede that such measures ought to also be excusable for large-scale civilian massacres which may be ongoing. 226 Shawn Kaplan There is a second potential problem with Walzer’s communitarian emphasis. Walzer fails to acknowledge that the extinction of a political or religious community can be interpreted more broadly than genocide or mass enslavement. If the imminent threat to the continuance of a people with a common way of life is sufficient to trigger Walzer’s argument from extremity, we must recognize that conservative elements within nearly all communities have decried at some point that some internal or external threat was about to end their common way of life that provided the source of identity and meaning in their lives. Whether such claims are made from the standpoint of religious orthodoxy, nationalism, or tribalism, collective identities face multiple threats of “extinction.” Each new generation challenges and transforms these categories of identity such that some conservatives may find the results unrecognizable and may assert that the new generation no longer truly belongs to the religion, culture, and so on. In addition, the influence of global markets are viewed by some as threatening to wipe away the distinguishing languages, cultural or religious practices, and broad characteristics upon which such categories of identity are based. The simple point is that “a people like us” can face an imminent “disappearance” without genocide or political violence being to blame. I am in no way suggesting that Walzer would support such an expansion of his supreme emergency argument. However, it is important to recognize how the communitarian premise of Walzer’s argument from extremity flows easily into a much broader and troubling set of excuses for terrorism. Once the imminent destruction of a community is dismissed as an unacceptable criterion for excusing indiscriminate terrorism for both of these reasons, then one must consider how extreme the consequences need to be in order to override non-combatant immunity. Does an excuse from extremity require such large-scale atrocities or can the rescue of some innocents by means of indiscriminate terrorism be justified or excused, if such attacks simply target fewer people than rescued? A straight up consequentialist calculation of this sort would provide little to no limits to war or political violence generally. While Steinhoff both eliminates Walzer’s communitarian focus from his theory of a “justifying emergency” and acknowledges that individuals and groups can face such emergencies without the threat being of a catastrophic proportion, he attempts to avoid the likelihood of total warfare by following a rule-utilitarian rationale for justifying indiscriminate terrorism. Steinhoff on the Specific Wrongs of Indiscriminate Terrorism In contrast to Walzer’s conventional approach where innocence during war is shared by the collective of individuals who pose no direct threat (i.e., disengaged non-combatants), Steinhoff favors the approach advocated by Jeff McMahan and David Rodin where individual liability to attack is the locus of concern.24 Steinhoff’s version of this approach claims that an individual, whether in civil society or during war, forfeits her immunity or innocence by either violating the rights of others through an illegal attack or by being morally responsible for a current or Unraveling Emergency Justifications and Excuses for Terrorism 227 past illegal attack. Following John Locke, Steinhoff argues that any individual subject to a violation of her rights by an illegal attack and for whom there is no external authority to defend her has the right to use proportionate violent force to fend off the attack.25 Keeping with Locke, Steinhoff argues that present and past individual aggressors are liable to violent punishment and, when there is no external authority to carry out such punishment, the individual victim is justified in dealing out proportionate punishment for the sake of deterring future attacks and satisfying the “right to retribution.”26 Given that some might wish to hold democratic citizens broadly responsible for their nation’s acts of aggression, one might ask whether Steinhoff’s Lockean account would make such individuals non-innocent and, thus, liable to proportionate punishment.27 If this were true, then broad attacks upon non-combatants within democratic societies guilty of acts of aggression would not stand as indiscriminate terrorism. For Steinhoff, in contrast, moral culpability for unjust military aggression is not equally distributed amongst the entire civilian population— even within a democracy. Following Locke once more, Steinhoff insists that “the People” cannot give their government the power to initiate an unjust war as they have no such power to transfer.28 Hence, members of the general public can only be found culpable for an unjust military engagement to the degree to which they, as individuals, intentionally and systematically support or abet such military aggression, for example, by either “patriotically trumpeting support for, or otherwise taking part in, an unjust war.”29 All of this supposes that these individuals are living within a well-functioning, liberal democracy where the relevant information can be discovered for determining whether jus ad bellum principles are being satisfied. For Steinhoff, each citizen of a liberal democracy has a moral obligation to discover whether the war is just prior to intentionally and systematically supporting or abetting it. To neglect this duty would apparently make these non-combatants morally culpable for their country’s aggression and, thus, liable to punishment as non-innocents.30 Thus, according to Steinhoff, the targets of indiscriminate terrorism (and indiscriminate political violence generally) have not lost their immunity from attack by violating the rights of others with an unlawful attack in the present nor are they liable to violent punishment for their culpable role in abetting aggression in the past or present. Hence, Steinhoff finds the specific wrong of indiscriminate terrorism to be the violation of the individual’s rights to life, bodily integrity, or property. There is no additional harm to the community, comparable to Walzer’s account, to make indiscriminate terrorism somehow worse from a moral point of view than any other form of indiscriminate political violence. Justifying Emergencies To elucidate the concept of a justifying emergency, Steinhoff provides the following quote from §34 of the German penal code: 228 Shawn Kaplan Whosoever, in order to avert a not otherwise avoidable present danger to life, body, freedom, honour, property, or another legally protected interest, acts so as to avert the danger to himself or others, does not act illegally if, upon consideration of the conflicting interests, namely of the threatened legally protected interest and the degree of the threatened danger, the protected interest substantially outweighs the infringed interest. This, however, is true only if the act is an adequate means to avert the danger.31 A justifying emergency can, in theory, legitimize the violation of the rights of innocent persons when an unavoidable danger or threat to one’s own or another’s legally protected interests (i.e., rights) can effectively and proportionately be averted. The caveat added, however, is that the “protected interest” must “substantially outweigh the infringed interest.” Unfortunately, Steinhoff does not explicitly interpret how this weighing of interests is to occur and I shall return to this problematic issue shortly. There are circumstances that Steinhoff conceives of where individuals facing a justifying emergency can only escape by targeting the innocent. It is under such circumstances that Steinhoff imagines an act of indiscriminate terrorism may be justified. Sometimes a grave present danger for life, body or freedom cannot be averted from oneself or another in any way than by an attack on civilians or non-combatants . . . [I]f they [the non-combatants] are innocent, one faces in the ‘consideration of the conflicting interests and of the degree of the threatened danger’ grave moral dilemmas.32 The apparent moral dilemma is between the interests at risk by overriding the rule of non-culpable non-combatant immunity and the dangers to the interests of those facing an inescapable danger to life, body or liberty due to imminent aggression. I have labeled this as an apparent dilemma for two reasons. First, Steinhoff argues that there is a way to decide between these two violations of legally sanctioned interests or rights; hence, the conflict cannot be a dilemma in the narrow sense where neither option is morally acceptable. On the other hand, while it may not be totally inconceivable that one could only escape from (or rescue others from) grave dangers to life, body, or freedom by targeting non-culpable non-combatants, I am skeptical that any real threat of aggression can only be averted by an attack upon non-culpable non-combatants. I will return to this concern after examining Steinhoff’s argument justifying occasional indiscriminate terrorism by means of the principle of justifying emergency. However, at this point, it should be recognized that if no such cases exist in reality, then Steinhoff’s dilemma is only a conceptual one. Steinhoff on Terrorism and Its Justification While Steinhoff’s definition of terrorism embraces the popular assumption that all terrorism targets the innocent with severe attacks, he also includes in his Unraveling Emergency Justifications and Excuses for Terrorism 229 definition that their property can be targeted and that all terrorism fits a specific strategic model. Terrorism is the strategy of influencing behavior, perceptions, beliefs or attitudes of others than the immediate victims or targets of its violence by the threat, made credible by a corresponding act or series of acts, of the repeated killing or severe harming of innocents or the repeated destruction or severe harming of their property.33 I will not exhaustively evaluate the specific merits or deficiencies of this definition but will mention a few elements that are significant to my later arguments.34 To his credit, Steinhoff gives emphasis to the possibility that terrorists operate by a combination of threats as well as substantiating attacks and that these attacks can destroy or damage property. While the first point is hard to deny, the role of threats is often overlooked in definitions of terrorism. In addition, terrorists can often use threats to and attacks upon property to try to achieve their aims—whether the property is of symbolic value, societal infrastructure, or a case like the Israeli military bulldozing Palestinian homes. If this is true however, it is less clear why Steinhoff includes the condition that the aim of terrorism is always to influence some other party than the immediate victims or targets. Could not the bulldozing of Palestinian homes (a case Steinhoff analyzes as an example of terrorism) be aimed at influencing those same home owners (if not killed) as well as the broader Palestinian population? At bottom, however, I agree with Steinhoff that indiscriminate terrorist violence can inflict a wide range of harms and rights violations of varying severity, including violations of the rights to life, bodily integrity, liberty, and property. In what follows, I will consider how indiscriminate terrorism so conceived can supposedly be judged legitimate according to Steinhoff’s principle of justifying emergencies. Steinhoff makes his initial case by adducing two closely related hypothetical examples. In each case, a person in a role of responsibility (e.g., a head of household or a chief of a tribal association) faces a situation where members of her social unit are abducted by slave traders. In each instance, it is assumed that the slave traders have so great of a weapons advantage that any sort of direct attack upon them would be futile. Steinhoff suggests that for the head of household “there is no other way to save his family than to use an opportunity to kidnap the innocent daughter of the leader of the slave traders, and to threaten to kill her if his family is not released.”35 Presumably this means that there is no external authority to rescue the family and that the kidnapping scheme is either the only potentially effective strategy that has not been exhausted in attempting to address the emergency or it is the only conceivable way to address the emergency. The only significant difference for the second scenario is that the tribal chief dispatches warriors to kill the innocent relatives of the slave traders. Steinhoff does not draw a distinction at a normative level between carrying out the violence oneself and dispatching others to do so nor between kidnapping versus killing the innocent.36 Both acts stand as terrorism for Steinhoff as innocent people are being targeted 230 Shawn Kaplan with either severe harms (e.g., abduction), death, or threats of such, and the strategic aim is to change the perceptions and behaviors of the slave traders. Both situations also satisfy the conditions for a justifying emergency as a “grave present danger for life, body or freedom cannot be averted from oneself or another” without targeting a non-culpable non-combatant. An apparent moral dilemma emerges between the interests of the non-culpable non-combatants who are being targeting and the interests of those facing the inescapable danger of being enslaved. Built into these examples, however, is a way out of a narrowly conceived moral dilemma where neither option is morally acceptable. In addition to the conflicting interests of the innocent parties, there is a “positive duty” of the head of household to save her family and for the tribal chief to rescue members of her tribe. If one acknowledges these positive duties, Steinhoff has then stacked the deck in favor of overriding the interests of the innocent targets and, thus, either justifying or excusing the resort to terrorism.37 To lessen this effect and thus to highlight the broader potential of Steinhoff’s argument, let us alter his examples so that the proposed kidnapping aims to save the neighbor’s family and the tribal chief seeks to rescue members of another tribe. The central factor in these examples which tips the apparent dilemma in favor of being a justifying emergency for Steinhoff is that fewer innocents are being targeted by the terrorist than she hopes to rescue from the emergency. To forbid all indiscriminate violence used as a last resort to rescue a larger number of innocents represents, for Steinhoff, an inexcusable lack of empathy for the oppressed. Whoever is only able to condemn attacks on innocents even in such cases—in which one’s only chance of saving many other innocents with whom one has ties is precisely to attack a smaller number of innocents whose ties are with the enemies side—and is unable to see here a justification or at least an excuse: such a person does not so much demonstrate a Kantian loyalty to principles, but an appalling lack of empathy for the desperation of those who suffer from the arbitrariness and brutality of the strong.38 Here, the ties that one may have to those one intends to rescue can conceivably not entail a strong positive duty that one may have as a head of household or as a tribal chief; instead, one could simply be a person empathetic to the innocents in need of being rescued. To be a person who does not have an appalling lack of empathy requires for Steinhoff rejecting a moral absolutism where justifications and excuses for indiscriminate terrorism are inconceivable. While the emergencies described by Steinhoff can neither excuse nor justify an indiscriminate attack unless it is reasonable to predict that more innocents will be saved than harmed or killed, it is not enough to show in the short term that fewer innocents are targeted. Such a simplistic consequentialist justification would rapidly expand to permit the widespread targeting of innocents during war and other conflicts. For example, the bombing of fewer non-culpable non-combatants to sooner end a war where one’s own non-culpable combatants are at risk could be justified according to this calculation of short-term utility. In contrast, Steinhoff Unraveling Emergency Justifications and Excuses for Terrorism 231 argues that a rule-utilitarian principle for overriding non-combatant immunity must serve long-term, overall utility. Taken altogether, indiscriminate terrorism can only be justified for Steinhoff when the following conditions obtain: (1) a threat to many innocent people’s lives, bodies, or freedoms can only be averted by an attack upon non-culpable non-combatants; (2) the number of those so protected outnumber those who will be targeted; (3) there is no reasonable expectation that the threatened aggression will be deterred by external punishment; and (4) following a rule that encapsulates the previous three conditions will favor overall and long-term utility.39 Steinhoff argues that the stronger side of asymmetric conflicts will usually not be able to satisfy these conditions. He proposes that history shows how once non-combatant immunity is overridden by the powerful there is usually a reciprocal response followed by an escalation of indiscriminate violence from both sides, that is, the steady slide toward the barbarism of total war. In this way, the rationale of there being greater utility in ending a war sooner by resort to indiscriminate terrorism is reasonably dismissed by Steinhoff’s longer historical view. In addition, the powerful usually have means for protecting their innocent populations other than overriding non-combatant immunity and they have greater opportunity to punish indiscriminate attacks and deter such future attacks by “recourse to other countermeasures and reprisals, up to and including war crime tribunals.”40 Steinhoff concludes that the vast majority of indiscriminate terrorist acts are unjustified as they are carried out by powerful states, often as a first resort, when they have other means by which to counter either aggression or the terrorism of weaker sub-national groups. In contrast, however, Steinhoff argues that a militarily weak people who adopt a rule containing the first three conditions will not tend to pose a long-term threat toward normalizing total warfare. He argues that weaker parties who do not punish an aggressor for attacking their innocent citizens (and when no third party will do so) simply allow the stronger power an open hand in slaughtering innocent non-combatants. To refrain from what is presumed to be the only effective use of deterrent force available, viz., targeting the opposition’s innocent non-combatants, does not serve long-term utility as there is no probability of rescuing your own larger non-combatant population, or for the aggressor’s indiscriminate targeting to end, or for the deprivation of liberty to decrease. Criticisms of Steinhoff This appears to be a dubious anticipation of utility. While one might acknowledge that according to Steinhoff’s standards stronger states would be unjustified in resorting to indiscriminate terrorism (even in response to their weaker opponent’s resort to such methods), this by no means indicates that they will not. Recent history shows that the stronger side is often quick to reciprocate in kind when the principle of non-combatant immunity has been overridden. Whether one considers 232 Shawn Kaplan Israel’s bulldozing of civilian homes or its use of missiles attacks in residential sectors of the occupied territories, the U.S. bombing campaigns in Afghanistan and Iraq, or the recent aerial bombardment of Tamils in Sri Lanka, it has become a regular practice for a state’s anti-terrorist violence to be retaliatory and indiscriminate. The point of this strong-armed and indiscriminate approach tends to be both retribution and deterrence, if not extermination. Once one starts down the rule-utilitarian path that Steinhoff has chosen, one cannot dismiss the reasonably anticipated consequences of a widening resort to indiscriminate political violence of an unjustifiable nature in retaliation to that which is supposedly justified. There is a second related problem with Steinhoff’s argument from extremity that needs to be confronted. Steinhoff provides little in the way of real-world examples or cases that satisfy the condition that an inescapable threat to life, bodily integrity, or liberty can only be averted by indiscriminate violence. I am skeptical that one can ever make a convincing case that a threat of aggression can only be averted by an attack upon non-culpable non-combatants. If indiscriminate terrorism is not the only or least harmful means to avert the threat of aggression, then Steinhoff’s rule-utilitarian justification for such measures is less than convincing. One could similarly ask for real-world examples where a resort to indiscriminate terrorism has been effective in averting a grave threat to innocent persons. Not only are no examples provided of such an effective resort to indiscriminate terrorism but one must wonder why we should not anticipate the opposition taking a hard-line response that amplifies the threat of aggression. Again, the fact that such a hard-line backlash could not be justified following Steinhoff’s rule-utilitarian model does not signify that we ought to rule it out as a reasonably anticipated consequence of what supposedly is a legitimate resort to indiscriminate terrorism. Lastly, Steinhoff’s rule-utilitarian approach might encounter a similar problem in the case of a people facing genocide (or similar emergency). If one could reasonably anticipate that the resort to indiscriminate terrorism would only hasten their own genocide, then even being in the midst of the most extreme of emergencies could not excuse or justify indiscriminate terrorism following Steinhoff. However, this leaves us with the question of whether the significant probability of indiscriminate terrorism meeting with a severe backlash means that a people facing genocide, or massacre, or extended and severe deprivation of rights ought to avoid a potentially effective strategy rather than risk the likelihood of backlash and, thus, overall negative utility. At bottom, an unflinching adherence to rule-utilitarian principles can just as easily result in an “appalling lack of empathy for the desperation of those who suffer from the arbitrariness and brutality of the strong.” From Emergency to Non-Emergency Justifications Both of the preceding arguments from extremity presume that survival should not necessarily be sacrificed for the sake of a blind adherence to moral principle. Unraveling Emergency Justifications and Excuses for Terrorism 233 If one agrees with this intuition and finds Walzer’s communitarian focus upon the survival of a tightly bound community too narrow or too vague, then Steinhoff’s alternative justifying emergency may hold initial appeal. However, as we have seen, Steinhoff’s rule-utilitarian justification for his emergency ethics rests upon a rather dubious anticipation of utility that ignores the great likelihood that resorts to indiscriminate political violence, by the weak as well as the strong, escalate toward the barbarism of total war. However, what both Walzer and Steinhoff ignore in their arguments from extremity is that indiscriminate terrorism is a diverse phenomenon which inflicts different degrees of harm and can violate rights of varying severity. If indiscriminate terrorism is not always lethal but can either seriously harm innocents or their property in a strategy for influencing the behavior or perceptions of others (as Steinhoff suggests), then a rule to only use non-lethal varieties may have better long-term utility than a rule supporting lethal varieties. If as a rule terrorists target the innocent with non-lethal pathogens, or destroy societal infrastructure, or disrupt socially important computer networks (e.g., those responsible for communication, national security, or banking), then would we reasonably anticipate an escalating response that would lead to total war? I do think that a rule permitting non-lethal, indiscriminate terrorism in a justifying emergency has a greater probability of positive utility; after all, not only would a lesser harm be produced but non-lethal violence directed upon the innocent tends not to produce the same visceral response and strong impulse toward revenge as lethal force. More importantly, this line of thought raises some complications for Steinhoff’s rule-utilitarian approach for setting limits to the overriding of non-combatant immunity. Steinhoff has generally only addressed the proportion of the legally protected interests threatened by the emergency and those rights violated by the use of indiscriminate violence in terms of the number of respective victims. This only makes sense if one assumes that the rights threatened and violated are of the same severity. However, the passage from the German penal code quoted by Steinhoff to illustrate the idea of a justifying emergency refers to a wide range of rights that may be at risk, including dangers to life, body, freedom, and property. At the same time, Steinhoff’s own account of terrorism allows for an equally diverse list of rights to be violated through such indiscriminate violence. At heart, Steinhoff’s approach seems to require comparative judgments of the actual rights violations of each act of indiscriminate terrorism and the rights threatened within the circumstance of the justifying emergency. In his own examples of justifying emergencies, Steinhoff avoids doing such a comparative analysis. In both instances he proposes, people were being abducted by slave traders. In one case, he finds a head of household justified in abducting an innocent individual from the slave trader’s family; whereas, the second case involves a tribal chief justifiably sending off soldiers to kill innocents from the other side. While it makes sense that the number of victims must be fewer than those rescued when—as in his first case—the same rights are being violated or threatened, is it really enough to propose that the number of individuals saved 234 Shawn Kaplan from slavery must be greater than those innocents killed? I am not going to enter into a debate over the comparative severity of these two rights violations. My point is that Steinhoff’s argument requires this comparative analysis in all cases except where the same right is being threatened or violated by the two sides. However, once one begins to carry out comparative analyses of rights violations, one might reasonably ask why a wider range of indiscriminate acts of terrorism could not be justified in response to a variety of ongoing injustices that involve rights being violated or not being effectively protected but may not be thought of as emergencies.41 Both in the examples he adduces and the arguments which spring from them, Steinhoff construes justifying emergencies as being in response to imminent lethal aggression and, thus, he does not consider whether indiscriminate terrorism—especially non-lethal forms—might be a justified response to ongoing violations of rights.42 Consider the following example: A subpopulation which is barred from equal access to unimpeded voting over an extended period of time due to intimidation may not be facing an emergency; however, they do suffer a significant injustice and violation of their rights. If nonviolent protest and attempts at democratic reform have not addressed their grievances over this extended period of time, then one might consider whether a resort to indiscriminate terrorism is justified if it inflicts rights violations upon the innocent in proportion to those continually threatened for this subpopulation and can be reasonably anticipated to be effective in bringing about equally protected rights for all within that society. Whereas the killing of innocents imposes too severe of a rights violation in this hypothetical, the bombing of polling places used by those other populations which have enjoyed their unimpeded right to vote might be described as proportionate. If such a violation of other innocent people’s voting rights can be reasonably anticipated to alter their perceptions regarding the afflicted population’s grievances and help bring about needed institutional reforms, then why would this be any less justified than Steinhoff’s examples of justifying emergencies? Though Steinhoff in no way explicitly or implicitly rejects such a possibility, by concentrating solely upon emergency circumstances where either individuals are not being protected from aggression or aggressors are not being deterred by an external authority, he only attempts to justify the most harmful forms of terrorism and fails to address those non-lethal varieties that might be more readily justified in response to a wider range of injustices and rights violations but are not emergencies. In other words, the logic of justifying emergencies in truth can be used to justify non-emergency resorts to indiscriminate terrorism and this is an important conclusion that is obscured by Steinhoff’s approach. While I have suggested that non-lethal varieties of indiscriminate terrorism will be more readily justified even in non-emergency circumstances, what can be said about the lethal varieties? On the one hand, when the threat faced is not toward human life, then the comparison of potential rights violations in combination with a consideration of the likelihood of backlash and escalation would most likely preclude the resort to lethal indiscriminate violence for being Unraveling Emergency Justifications and Excuses for Terrorism 235 disproportionate. However, if there is an imminent threat of lethal aggression, a resort to lethal indiscriminate terrorism can only have a chance of being justified or excused if both discriminate violent force and non-lethal indiscriminate terrorism would be ineffective in protecting the innocent lives at risk. Though I have no confirming data, my intuition is that there are very few cases where either more discriminate or less harmful measures would necessarily be ineffective in protecting the lives of innocent people. If I am correct on this point, then the rule-utilitarian consideration of the threat of severe backlash to indiscriminate lethal terrorism within my combined approach will not necessarily lead us to an “appalling lack of empathy for the desperation of those who suffer from the arbitrariness and brutality of the strong” as there are usually alternative measures to take which we would not reasonably anticipate provoking an escalation toward total warfare. Still, it is at least conceivable that lethal and indiscriminate terrorism will be the only defense against some imminent threats of lethal aggression. While I have argued that there is a great likelihood of a severe backlash and escalation toward total warfare from resorting to lethal indiscriminate terrorism, does this likelihood necessarily rule out all justifications or excuses for such measures? Should the threat of severe backlash and escalation rule out either the necessary means of self-defense in an emergency or even proportionate and discriminate defensive measures more generally? After all, it must be admitted that some aggressors have a history of reacting to any resistance with a great backlash and an escalated resort to indiscriminate violence to “shock and awe” their opponents into submission. As one would not wish the anticipation of negative consequences from such unjust tactics to disallow a discriminate and proportionate defense, one could support a similar claim for a proportionate but indiscriminate defense of last resort—if the anticipated backlash and escalation is just as likely as that for the discriminate defensive measures. Following this logic, a justification exists for indiscriminate terrorism in the face of genocide (or similar emergency) in contrast to Steinhoff’s argument and without a reliance upon Walzer’s problematic communitarian assumptions. As an opponent threatening genocide would most likely accelerate their efforts at any sign of violent resistance, a resort to indiscriminate terrorism which has any chance of being effective against genocide can be justified, since more discriminate measures would produce comparable negative consequences in the form of backlash and escalation. By combining a rule-utilitarian approach with a comparative analysis of rights violations, I have argued that terrorist violence against individuals who have done nothing to forfeit their rights to life, bodily integrity, liberty, or property can be justified both in emergency and non-emergency contexts. I have argued that individuals without any shared identity can collectively face desperate emergencies of self-defense (in contrast to Walzer’s communitarian conception of supreme emergencies) and that such emergencies can conceivably be ongoing and, thus, not only the result of imminent communal extinction or enslavement (as Walzer assumes). Furthermore, in contrast to Steinhoff, I have argued that backlash and 236 Shawn Kaplan escalation of indiscriminate violence is reasonably anticipated from any resort to lethal indiscriminate terrorism—regardless of whether carried out by the weak or the powerful. In light of such realities, I have proposed that non-lethal indiscriminate terrorism will be more readily justified or excused. On the one hand, nonlethal varieties are less likely to provoke severe backlash or retaliation. On the other, as a less harmful yet effective alternative, non-lethal indiscriminate terrorism can more readily pass a rule-utilitarian test than the lethal varieties. Most significantly, by including a comparative analysis of those ongoing rights violations suffered by a population and those rights violations anticipated by a resort to non-lethal indiscriminate terrorism, a rule-utilitarian justification for non-lethal terrorism in non-emergency contexts exists. That is, once one arrives at a coherent emergency justification of indiscriminate terrorism from a rule-utilitarian rationale and that includes a comparative analysis of rights violations, it become impossible to deny a more expansive set of justifications for non-lethal indiscriminate terrorism in response to ongoing injustices and rights violations that are not emergencies per se. Finally, I have argued that lethal indiscriminate terrorism can conceivably be justified only in the extremely rare instances where both more discriminate and less harmful measures are truly ineffective against some lethal aggression or imminent threat thereof. For the powerful and the weak alike, there will almost always be more discriminate or less harmful means of defense against such aggression. However, under instances of genocide or similar emergencies, a more discriminate or less harmful approach by the weak will not likely reduce the risk of severe backlash and general escalation toward total warfare by their more powerful aggressor or oppressor. If there is any hope that such indiscriminate and lethal measures can save people from such emergencies, then the risked backlash and escalation can be justified. Notes 1 While some may take the phrase “indiscriminate terrorism” to be redundant, I make no presumption that terrorists cannot target either combatants or those morally liable to attack but only focus here upon instances where they fail to do so. 2 By including property, I am following Articles 51 and 52 of the 1977 Geneva Protocol I which prohibit the targeting of “civilian objects” which are in no way “military objectives.” Military objectives are defined there as: “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” Like their rights to life, liberty, and bodily integrity, the “innocent” have generally done nothing by which to forfeit their right to property such that their homes, schools, houses of worship, and so on, can legitimately be directly targeted when they serve no military purpose. 3 For Walzer’s earlier positions, see Michael Walzer, “The Problem of Dirty Hands,” Philosophy and Public Affairs 2 (1973): 160–80 and Michael Walzer, Just and Unjust Wars, 3rd ed. (New York: Basic Books, 2000), 251–63. 4 Uwe Steinhoff, On the Ethics of War and Terrorism (Oxford: Oxford University Press, 2007), 134–35. 5 I have argued against the claim that terrorists always attack disengaged non-combatants in Shawn Kaplan, “Three Prejudices Against Terrorism,” Critical Studies on Terrorism 2 (2009): 181–99. Unraveling Emergency Justifications and Excuses for Terrorism 6 237 Michael Walzer, “Terrorism and Just War,” Philosophia 34 (2006): 7. Previously, Walzer claimed: “This, then, is the peculiar evil of terrorism—not only the killing of innocent people but the intrusion of fear into everyday life, the violation of private purposes, the insecurity of public spaces, the endless coercion of precaution.” Michael Walzer, “Terrorism: A Critique of Excuses,” in Arguing About War (New Haven: Yale University Press, 2004), 51. In this earlier account, the coercive terror produced by terrorist attacks upon non-combatants has the powerful effect of devaluing daily lived experiences (e.g., riding buses, sitting in cafes, walking down the street) as well as coercively undermining the pursuit of private purposes that make individual lives meaningful. While this position has some intuitive appeal, it has been challenged both as not getting at something universally experienced by the victims of terrorist attacks and as an effect not truly distinct to terrorism since the same sort of coercive terror discussed by Walzer is experienced by non-combatants (and combatants) during war. For each respective criticism, see Ted Honderich, After The Terror (Edinburgh: Edinburgh University Press, 2002), 97 and C.A.J. Coady, “Defining Terrorism,” in Terrorism: The Philosophical Issues, ed. Igor Primoratz (New York: Palgrave Macmillan, 2004), 3–14. 7 Walzer, “Terrorism and Just War,” 5. 8 Ibid., 6. 9 While the requirement of a community’s imminent extinction or enslavement is less explicitly and systematically developed within Walzer’s account of supreme emergencies in Just and Unjust Wars than in his more recent work, he does use it there as well. “Can a supreme emergency be constituted by a particular threat—by a threat of enslavement or extermination directed at a single nation?” After answering affirmatively, Walzer continues: “[A] world where entire peoples are enslaved or massacred is literally unbearable. For the survival and freedom of political communities—whose members share a way of life, developed by their ancestors, to be passed on to their children—are the highest values of international society.” Walzer, Just and Unjust Wars, 254. 10 Walzer, “Emergency Ethics,” in Arguing About War, 40. 11 Ibid., 49. 12 Ibid., 43. 13 Ibid., 49. 14 Ibid., 44. 15 Ibid., 47. 16 Walzer famously proposed the British “terror bombing” of German cities in the early 1940s as an example of a supreme emergency. Walzer, Just and Unjust Wars, 251–63. I am not going to belabor an analysis of this case as Walzer now acknowledges: “The debate was conducted, as far as I can tell from the available memoirs and histories, entirely in the language of strategy; the principle of noncombatant immunity was never mentioned.” Walzer, “Terrorism and Just War,” 8. The goal was not to avoid genocide but to decrease British military casualties by bombing large cities at night from high altitude. 17 Daniel Statman criticizes this reading at length in his “Moral Tragedies, Supreme Emergencies and National Defense,” Journal of Applied Philosophy 23 (2006): 311–22. He convincingly argues that Walzer’s supreme emergency is an attempt to provide ex ante permission rather than a post factum excuse for indiscriminate violence, since Walzer simply presents the consequences of genocide as being worse than the killing of some innocents on the opposing side. 18 For an account of supreme emergency that fits this description, see Brian Orend, The Morality of War (Peterborough, Ontario: Broadview Press, 2006), 154–57. 19 Walzer, “Emergency Ethics,” 47. 20 I would like to acknowledge the anonymous reviewer for the Journal of Social Philosophy for highlighting this point. 21 Robert Service, A History of Twentieth-Century Russia (Cambridge: Harvard University Press, 1997), 222. 22 Ibid., 225. 238 23 Shawn Kaplan I do not think it entirely fair to complain that such terrorist tactics against a totalitarian regime would prove futile; after all, Walzer’s own notion that indiscriminate terrorism could prove effective against genocide seems equally dubious. 24 Steinhoff, On the Ethics of War and Terrorism, 33–108. Jeff McMahan, “The Ethics of Killing in War,” Ethics 114 (2004): 693–733. David Rodin, War and Self-Defense (Oxford: Oxford University Press, 2002), 70–90. 25 John Locke, “Second Treatise of Government,” in Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), 269–78 (§§4–15). 26 While Steinhoff focuses upon what the offender deserves (i.e., retribution), Locke more precisely claims a right to reparation (i.e., what is owed the victim). Steinhoff, On the Ethics of War and Terrorism, 50. Locke, “Second Treatise of Government,” §11. 27 For an argument in favor of holding democratic citizens broadly responsible for their nation’s aggression, see Michael Green, “War, Innocence, and Theories of Sovereignty,” Social Theory and Practice 18 (1992): 39–62. 28 Steinhoff, On the Ethics of War and Terrorism, 68. Locke, “Second Treatise of Government,” §179. 29 Steinhoff, On the Ethics of War and Terrorism, 69. 30 I am of the opinion that even if one wished to affirm such a controversial position (and I do not) it would be of little practical use as soldiers or terrorists will generally not be able to identify non-combatants who have neglected their duty to determine the justice of their nation’s war prior to systematically abetting it (as opposed to those who have been deceived by their state). 31 Steinhoff, On the Ethics of War and Terrorism, 99. Steinhoff comments that “adequate” here most likely means effective and not excessive. However, he does not comment on why honor is listed as a legally protected right nor why an unavoidable threat to honor could contribute towards a justifying emergency. It is my opinion that it is far too dangerous to include “honor” amongst those interests which could ever justify a resort to violence. 32 Steinhoff, On the Ethics of War and Terrorism, 100–101. 33 Ibid., 122. 34 For my arguments regarding how to best define terrorism and why we ought not to assume all terrorism to be indiscriminate, see Shawn Kaplan, “A Typology of Terrorism,” Review Journal of Political Philosophy 6 (2008): 1–38 and Kaplan, “Three Prejudices Against Terrorism.” 35 Steinhoff, On the Ethics of War and Terrorism, 133. 36 In all fairness, Steinhoff does not suggest a moral equivalence between these examples but his failure to draw out the normative differences will lead to a significant divergence in our stated positions. 37 If one views the positive duty and the interests of those facing the emergency as being additive, then a case for justified terrorism could be made. If not, perhaps only an argument for excusing the terrorist act could be made. 38 Steinhoff, On the Ethics of War and Terrorism, 133–34. 39 Ibid., 135. 40 Ibid. 41 While my emphasis upon comparing the severity of rights violations is reminiscent of Virginia Held’s position, I am not affirming Held’s argument to justify indiscriminate terrorism in the face of ongoing rights violation. Virginia Held, “Terrorism, Rights, and Political Goals,” in Violence, Terrorism, and Justice, ed. R.G. Frey and Christopher W. Morris (Cambridge: Cambridge University Press, 1991), 70–81. 42 This is not to suggest that Steinhoff either explicitly or implicitly denies such a possibility.