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Necessity and non-combatant immunity

  • SETH LAZAR
Abstract

The principle of non-combatant immunity protects non-combatants against intentional attacks in war. It is the most widely endorsed and deeply held moral constraint on the conduct of war. And yet it is difficult to justify. Recent developments in just war theory have undermined the canonical argument in its favour – Michael Walzer's, in Just and Unjust Wars. Some now deny that non-combatant immunity has principled foundations, arguing instead that it is entirely explained by a different principle: that of necessity. In war, as in ordinary life, harms to others can be justified only if they are necessary. Attacking non-combatants, the argument goes, is never necessary, so never justified. Although often repeated, this argument has never been explored in depth. In this article, I evaluate the necessity-based argument for non-combatant immunity, drawing together theoretical analysis and empirical research on anti-civilian tactics in interstate warfare, counterinsurgency, and terrorism.

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1 Combatants are either members of armed forces, or directly participate in hostilities; non-combatants are not combatants (I say more on this in Section II). I refer to civilians and non-combatants interchangeably.

2 For an overview, see McKeogh, Colm, Innocent Civilians: The Morality of Killing in War (Basingstoke: Palgrave, 2002), p. 72. For the Western tradition see Reichberg, Gregory M., Syse, Henrik, and Begby, Endre, The Ethics of War: Classic and Contemporary Readings (Oxford: Blackwell, 2006), p. 131; (Raymond of Peñafort), p. 222; (Christine de Pisan), pp. 148–39; (Cajetan), p. 324; (Vitoria), pp. 162–33; (Suarez), p. 432; (Grotius), p. 174; (Christan von Wolff). For other traditions see Sorabji, Richard and Rodin, David, The Ethics of War: Shared Problems in Different Traditions (Aldershot: Ashgate, 2006).

3 For example, the ‘Basic Rule’, in the first additional protocol to the Geneva Conventions, article 48. Roberts, Adam and Guelff, Richard, Documents on the Laws of War (Oxford: Oxford University Press, 2000).

4 Downes, Alexander, ‘Desperate Times, Desperate Measures: The Causes of Civilian Victimisation in War’, International Security, 30:4 (2006), pp. 152–95, esp. 152.

5 Kahl, Colin H., ‘In the Crossfire or the Crosshairs? Norms, Civilian Casualties, and U.S. Conduct in Iraq’, International Security, 32:1 (2007), pp. 746.

6 Coady, Tony, ‘Terrorism, Just War, and Supreme Emergency’, in Coady, Tony and O'Keefe, Michael (eds), Terrorism and Justice: Moral Argument in a Threatened World (Carlton: Melbourne University Press, 2002), pp. 821, esp. 19.

7 Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 2006), pp. 42–5. There is also a statist dimension to Walzer's distinction between combatants and non-combatants, which is absent from the subsequent revisionist discussion. Thanks to an anonymous reviewer for pointing this out.

8 See, for example, Coady, Tony, ‘The Status of Combatants’, in Rodin, David and Shue, Henry (eds), Just and Unjust Warriors: The Moral and Legal Status of Soldiers (Oxford: Oxford University Press, 2008), pp. 153–75; Fabre, Cecile, Cosmopolitan War (Oxford: Oxford University Press, 2012); McMahan, Jeff, ‘Innocence, Self-Defense and Killing in War’, Journal of Political Philosophy, 2:3 (1994), pp. 193221; Mcpherson, Lionel, ‘Innocence and Responsibility in War’, Canadian Journal of Philosophy, 34:4 (2004), pp. 485506; Rodin, David, War and Self-Defense (Oxford: Clarendon Press, 2002).

9 Liability is only one necessary condition for the justified infliction of harm; it must also be proportionate and necessary to avert an unjustified threat.

10 Although for a theoretical critique, see Lazar, Seth, ‘Necessity in Self-Defense and War’, Philosophy & Public Affairs, 40:1 (2012), pp. 344.

11 Downes, ‘Desperate Times’, pp. 157–8.

12 The risk of total war is limited, since there will always be some non-combatants who are not liable. However, the responsibility view threatens to move us much closer to total war than most would think acceptable.

13 This is a much-abridged version of the argument that I make against revisionists in, for example, Lazar, Seth, ‘The Responsibility Dilemma for Killing in War’, Philosophy & Public Affairs, 38:2 (2010), pp. 180213.

14 One response, of course, is simply to talk up the responsibilities of combatants, and talk down those of non-combatants. See, for example, Jeff McMahan, ‘Who is Morally Liable to be killed in War’, Analysis (2011); Fabre, Cécile, ‘Guns, Food, and Liability to Attack in War’, Ethics, 120:1 (2009). This typically involves simply applying a double standard to get the desired result.

15 Throughout this article I assume a low degree of responsibility suffices for liability, and accordingly that in most modern wars many non-combatants are liable to be killed. Only on this assumption is the necessity-based argument interesting and useful; since without some such argument, too many non-combatants would be liable for revisionism to be consistent with the conventional affirmation of non-combatant immunity.

16 Arneson, Richard J., ‘Just Warfare Theory and Noncombatant Immunity’, Cornell International Law Journal, 39 (2006), pp. 663–88, p. 120; Cecile Fabre, ‘Guns, Food’, p. 63; Frowe, Helen, ‘Self-Defence and the Principle of Non-Combatant Immunity’, Journal of Moral Philosophy (2011), pp. 1920; Gross, Michael, ‘Killing Civilians Intentionally: Double Effect, Reprisal, and Necessity in the Middle East’, Political Science Quarterly, 120:4 (2005–6), pp. 555–79, esp. 566; McMahan, Jeff, Killing in War (Oxford: Oxford University Press, 2009), p. 225; Mcpherson, ‘Innocence and Responsibility in War’, p. 505; Øverland, Gerhard, ‘Killing Civilians’, European Journal of Philosophy, 13:3 (2005), pp. 345–63, esp. 352, 360; Thomson, Judith Jarvis, ‘Self-Defense’, Philosophy and Public Affairs, 20:4 (1991), pp. 283310, esp. 297.

17 The rule-consequentialists argue that combatants should obey the rules that have the best overall outcomes: Lichtenberg, Judith, ‘War, Innocence, and the Doctrine of Double Effect’, Philosophical Studies, 74:3 (1994), pp. 347–68, esp. 366; Mavrodes, George I., ‘Conventions and the Morality of War’, Philosophy and Public Affairs, 4:2 (Winter 1975), pp. 117–31, esp. 125; Shue, Henry, ‘Targeting Civilian Infrastructure with Smart Bombs: The New Permissiveness’, Philosophy and Public Policy Quarterly, 30:3 (2010), pp. 28, esp. 3; Dill, Janina and Shue, Henry, ‘Limiting the Killing in War: Military Necessity and the St Petersburg Assumption’, Ethics and International Affairs, 26:3 (2012), pp. 311–34. Contractarians argue that the rules of war constitute a fair agreement between states representing their peoples' interests. See Benbaji, Yitzhak, ‘A Moral Right to Undertake the Duty of Obedience’, Ethics, 122:1 (2011), pp. 4373.

18 See Lazar, ‘Necessity in Self-defense and War’.

19 ‘Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money.’ USA vs. List et al. (American Military Tribunal, Nuremberg, 1948), 11 NMT 1230, 1253. See also the definition of necessity in US Army, ‘Civilian Casualty Mitigation’, Army Tactics, Techniques and Procedures, 3–37.31 (2012), pp. 1–8.

20 Deserved or consenting suffering can also be bad, but it depends on the details of the case.

21 This condition illustrates the relationship between necessity and proportionality. A harm H is proportionate if and only if the harm inflicted is justified by the harm averted. This means comparing H against a baseline of inaction, and asking whether the difference in harm done is justified by the difference in harm averted. But inaction is just one of the ‘less harmful courses of action available that is less likely to succeed’, mentioned in condition 3. It follows that if H is disproportionate, then it cannot be necessary (so if it satisfies necessity, then it must be proportionate).

22 Thanks to a reviewer for raising this point. For a similar move see McMahan, Killing in War, p. 232; Frowe, ‘Self-Defence’, p. 21.

23 See, for example, Ibid., pp. 1–18.

24 Article 51, 5(a.ii), of the first additional protocol to the Geneva Conventions, Roberts and Guelff, Documents, p. 449.

25 Roberts and Guelff, Documents, p. 447.

26 See, for example, McMahan, Killing in War, p. 218ff.

27 Thanks to Jeff McMahan for helping to clarify this point.

28 Gray, Colin S., Modern Strategy (Oxford: Oxford University Press, 1999), pp. 295–6; Kocher, Matthew Adam, Pepinksy, Thomas B., and Kalyvas, Stathis N., ‘Aerial Bombing and Counterinsurgency in the Vietnam War’, American Journal of Political Science, 55:2 (2011), pp. 118, esp. 2; Pape, Robert, ‘The Strategic Logic of Suicide Terrorism’, American Political Science Review, 97:3 (2003), pp. 343–61, esp. 351.

29 Thanks to the reviewers for pressing me to clarify this.

30 See, for example, Lazar, Seth, ‘Morality & Law of War’, in Marmor, Andrei (ed.), Companion to Philosophy of Law (New York: Routledge, 2012), pp. 364–79.

31 Thanks to a reviewer for raising this possibility.

32 This also allows reference to existing research on the strategic success of anti-civilian attacks. If just war theorists are to test their theories against the empirical record while remaining philosophers, then they had better be able to make use of the research by political scientists and international relations scholars who address these problems empirically.

33 In comments on this article, Jeff McMahan has raised the following challenge to the dataset from which the remaining discussion draws. He notes that the effectiveness of anti-civilian attacks ‘depends to a very considerable extent on the nature of the regime against which it is used’, in particular, on the target being a liberal democracy, since dictators are unlikely to care about whether their non-combatant citizens are harmed (McMahan, personal communication on file). He then notes that just wars are often fought by liberal democracies against tyrannical or authoritarian regimes, and in such cases anti-civilian tactics are likely to be less effective. This means that what we really need are data that give the rate of success of the use of anti-civilian tactics by liberal democracies fighting just wars against non-democratic states. Some research has been done on related topics – the broad consensus is that democracies are more likely to make concessions to terrorism than non-democracies (although there is strong dissent from Max Abrahms, see fn. 48 below); and Alexander Downes has shown that, whatever their success rates, liberal democracies are not less likely to use anti-civilian attacks than other polities: Downes, Alexander, ‘Restraint or propellant? Democracy and civilian fatalities in interstate wars’, Journal of Conflict Resolution, 51:6 (2007), pp. 872904. I think, however, that the constraint that we focus only on just wars is problematic for the reasons given in the text above, concerning the great difficulties in reaching this sort of judgment. Additionally, even if anti-civilian tactics did prove typically ineffective against authoritarian regimes, liberal democracies fighting just wars might well face other adversaries – the democratic peace hypothesis could be tested in future, moreover liberal democracies are very likely to face insurgencies, and in counterinsurgency anti-civilian attacks can be effective not only as a coercive tool, but as a means of preventing civilians from helping the insurgents.

34 Pape, Robert, Bombing to Win: Air Power and Coercion in War (London: Cornell University Press, 1996).

35 Douhet, Giles, The command of the air (USAF warrior studies; Washington, DC: Office of Air Force History, 1983).

36 Pape, Bombing to Win, p. 271.

37 Ibid., p. 315.

38 Ibid., pp. 271–2. See also Horowitz, Michael and Reiter, Dan, ‘When Does Aerial Bombing Work? Quantitative Empirical Tests, 1917–1999’, Journal of Conflict Resolution, 45:2 (2001), pp. 147–73.

39 Pape, Bombing to Win, pp. 271–2.

40 Ibid.

41 Ibid., p. 316.

42 US Army, ‘Counterinsurgency Field Manual’ (Washington: United States Army and United States Marine Corps, 2006), § 7–24. This is also a consistent theme of Army, ‘Civilian Casualty Mitigation’.

43 Kalyvas, Stathis N., ‘The Paradox of Terrorism in Civil War’, The Journal of Ethics, 8:1 (2004), pp. 97138, esp. 116.

44 Downes, Alexander, ‘Draining the Sea by Filling the Graves: Investigating the Effectiveness of Indiscriminate Violence as a Counterinsurgency Strategy’, Civil Wars, 9:4 (2007), pp. 420–44, esp. 426; Kalyvas, ‘Paradox of Terrorism’, p. 104; Mason, David, ‘Insurgency, Counterinsurgency, and the Rational Peasant’, Public Choice, 86:1/2 (1996), pp. 6383, esp. 80.

45 Kalyvas, ‘Paradox of Terrorism’, p. 118.

46 Lyall, Jason, ‘Does Indiscriminate Violence Incite Insurgent Attacks? Evidence from Chechnya’, Journal of Conflict Resolution, 53:3 (2009), pp. 331–62, esp. 335. See also Wood, Reed M., ‘Rebel Capability and Strategic Violence against Civilians’, Journal of Peace Research, 47:5 (2010), pp. 601–14, esp. 603.

47 Abrahms, Max, ‘Why Terrorism Does Not Work’, International Security, 31:2 (2006), pp. 4278, 44–5.

48 Ibid.; Abrahms, Max, ‘Why Democracies Make Superior Counterterrorists’, Security Studies, 16:2 (2007), pp. 223–53; Abrahms, Max, ‘What Terrorists Really Want: Terrorist Motives and Counterterrorism Strategy’, International Security, 32:4 (2008), pp. 78105; Rose, William, Murphy, Rysla, and Abrahms, Max, ‘Does Terrorism Ever Work? The 2004 Madrid Train Bombings’, International Security, 32:1 (2007), pp. 185–92.

49 Abrahms, ‘Why Terrorism Does Not Work’, p. 43.

50 Hezbollah's expulsion of Israel from Southern Lebanon in 1984 and again in 2000 are coded as total successes, as is the Tamil Tigers’ establishment of autonomy in Sri Lanka (the paper was written in 2006). Abrahms aimed to be generous, for example counting both partial and total successes as policy successes, and only complete failure as failure, and attributing all successes to terrorism rather than to any other intervening variables. Ibid., p. 51.

51 The drawdown of US troops in Saudi Arabia post 9/11 is coded as a limited success, as is Israel's withdrawal from the Gaza strip.

52 Abrahms, ‘Why Terrorism Does Not Work’, p. 56.

53 Ibid., pp. 76–7.

54 A further observation about the Kalyvas/Pape/Abrahms conclusions: each of these arguments depends in part on how adversaries and bystanders respond to anti-civilian attacks. Pape stresses the resilience of nation-states, which rally around the flag when indiscriminately targeted; Kalyvas and the Field Manual argue that anti-civilian attacks delegitimises counterinsurgents among both domestic and international audiences; Abrahms emphasises the role responses play in rendering avas ineffective. These responses partly depend on the prior belief that attacks on civilians are unjustified. Otherwise attacking civilians would not delegitimise, or invite the same stoicism. Anti-civilian attacks are ineffective precisely because they are believed unjustified.

55 Kalyvas, ‘Paradox of Terrorism’, p. 106.

56 Ibid. Again, the overarching objectives of the Germans were obviously not such as a justified belligerent could have aimed at. However, putting a stop to a violent resistance is, I assume, the sort of goal that could be justified.

57 Quoted in ibid., p. 107.

58 UNAMA and AIHRC, ‘Afghanistan’, REF.

59 Downes, ‘Filling the Graves’, p. 422. See generally Kalyvas, Stathis N., ‘Wanton and Senseless? The Logic of Massacres in Algeria’, Rationality and Society, 11:3 (1999), pp. 243–85. A reviewer for this journal notes that selective anti-civilian attacks should be of special interest to revisionists, whose focus is on the individual bases of liability. While this is true, the present article is working on the assumption that the threshold of responsibility for liability is sufficiently low that a large proportion of the adult population of a modern state would be liable to be killed, if doing so satisfied necessity. As I noted above, it is only on this assumption that the necessity-based argument is interesting and useful for revisionists. As such, even unselective attacks on civilians are relevant test cases.

60 Abrahms compounds this error by taking the stated goals of terrorist organisations at face value: 7 of the 42 goals he identifies are ‘destroy Israel’, alongside hopes to ‘sever US-Israel relations’, ‘sever US-apostate relations’, ‘spare Muslims from “Crusader Wars”’, and ‘establish utopian society in Japan’, among others. Should we judge terrorist tactics ineffective because they fail to realise a utopia, or should we rather infer that terrorists talk big?

61 If it did, then it would mean that a huge proportion of the killing of combatants done in war would also prove unnecessary, and so impermissible.

62 Pape, ‘The Strategic Logic of Suicide Terrorism’, p. 345. See also Bloom, Mia M., ‘Palestinian Suicide Bombing: Public Support, Market Share, and Outbidding’, Political Science Quarterly, 119:1 (2004), pp. 6188.

63 Bloom, ‘Palestinian Suicide Bombing’; Moghadam, Assaf, ‘Motives for Martyrdom: Al-Qaeda, Salafi Jihad, and the Spread of Suicide Attacks’, International Security, 33:3 (2008/2009), pp. 4678, 56–8.

64 Kalyvas, ‘Wanton and Senseless?’, p. 251.

65 Gray, Modern Strategy, p. 295. This is a prominent theme in Army, ‘Civilian Casualty Mitigation’, for example, pp. 1–17 and 11–21.

66 Chalk, Peter, ‘The Evolving Dynamic of Terrorism in the 1990s’, Australian Journal of International Affairs, 53:2 (1999), pp. 151–68, esp. 152.

67 James M. Lutz and Brenda J. Lutz, ‘How Successful Is Terrorism?’, Forum on Public Policy, Online (2009), pp. 1–22, esp. 15.

68 Bannerjee, Sikata, Warriors in Politics: Hindu Nationalism, Violence, and the Shiv Sena in India (Boulder: Westview Press, 2000), p. 120.

69 Kydd, Andrew H. and Walter, Barbara F., ‘The Strategies of Terrorism’, International Security, 31:1 (2006), pp. 4979, esp. 74.

70 Gray, Modern Strategy, pp. 295–6.

71 Kydd and Walter, ‘The Strategies of Terrorism’, p. 63.

72 Army, ‘Civilian Casualty Mitigation’, pp. 1–17.

73 Harmon, C. C., ‘Five Strategies of Terrorism’, Small Wars and Insurgencies, 12:3 (2001), pp. 3966, esp. 57.

74 Lyall, ‘Evidence from Chechnya’, p. 13. Again, as objectionable as the Russian government's treatment of the Chechen people has been, their goal of defeating a violent rebellion is the sort of goal a justified belligerent could aim at.

75 Ibid., pp. 18–19.

76 Ibid.

77 Ibid., pp. 20–1. With a 95 per cent confidence interval, the following ranges apply: 28 to 136 missing attacks; 25 to 120 soldiers' lives saved; 34 to 165 who escaped wounding. Note: Lyall found that ‘the evidence does not support the claim that violence is redistributed to neighbouring villages’, ibid., p. 24. In comments on this article, Jeff McMahan has noted that Lyall's research does not show that it was the anti-civilian component of the Russian shelling that led to the reduction in insurgent attacks – for example, by deterring the insurgents directly, or by leading other civilians to refuse to allow the insurgents to fight from their villages. It is also consistent with the random shelling having killed or injured the insurgents, interdicting future attacks. This is possible, but given that the Russians selected targets at random, without any attempt to identify specific insurgent targets, it is unlikely. The harms done to civilians could be construed as foreseen but unintended, but I think that random firing into civilian areas should be construed as a violation of non combatant immunity, even if it is intended to achieve a military objective.

78 Valentino, Benjamin, Huth, Paul, and Croco, Sarah, ‘Bear Any Burden? How Democracies Minimise the Costs of War’, The Journal of Politics, 72:2 (2010), pp. 528–44, esp. 351. See also Watts, Barry, ‘Ignoring Reality: Problems of Theory and Evidence in Security Studies’, Security Studies, 7:2 (1997), pp. 115–71, esp. 154.

79 Downes, ‘Desperate Times’, pp. 162–3.

80 Valentino et al., ‘Bear Any Burden?’, p. 357.

81 Kenneth F. McKenzie Jr., ‘The Revenge of the Melians: Asymmetric Threats and the Next QDR’, Institute for National Strategic Studies, National Defense University, McNair Papers No. 62 (2000), p. 4.

82 Ibid., p. 3.

83 Shaw, Martin, The New Western Way of War: Risk-Transfer War and Its Crisis in Iraq (Cambridge: Polity, 2005). See also Kahn, Paul W., ‘The Paradox of Riskless Warfare’, Philosophy and Public Policy Quarterly, 22:3 (2002), pp. 28. For the contrary view, see Abrahms, ‘Superior Counterterrorists’.

84 Pape, ‘The Strategic Logic of Suicide Terrorism’, p. 343.

85 UNAMA and AIHRC, ‘Afghanistan’, p. iii.

86 Pape, ‘The Strategic Logic of Suicide Terrorism’, p. 350.

87 Ibid., p. 344.

88 Ibid., p. 351.

89 Ibid., p. 344.

90 Ibid., p. 351.

91 Rose et al., ‘Does Terrorism Ever Work?’, p. 187.

92 Ibid.

93 Slim, Hugo, Killing Civilians: Method, Madness and Morality in War (London: Hurst, 2007), pp. 190–1.

94 Downes, ‘Filling the Graves’, p. 423.

95 Valentino, Benjamin, Huth, Paul, and Balch-Lindsay, Dylan, ‘“Draining the Sea”: Mass Killing and Guerrilla Warfare’, International Organisation, 58:2 (2004), pp. 375407, esp. 384. See also Downes, ‘Filling the Graves’, p. 423; Valentino et al., ‘Bear Any Burden?’, p. 355; Wood, ‘Rebel Capability’, p. 603.

96 Gross, Moral Dilemmas of Modern War, p. 158.

97 Downes and Cochran, ‘Targeting Civilians to Win’, pp. 30–1. See also Lyall, ‘Evidence from Chechnya’, p. 6.

98 Lyall, ‘Evidence from Chechnya’, p. 7; Wood, ‘Rebel Capability’, p. 604.

99 Valentino et al., ‘“Draining the Sea”’, p. 385. See also Downes, ‘Filling the Graves’. For example, Spain in Cuba, France in Algeria, the Soviets in Afghanistan, and Sudan in Darfur. Alexander Downes and Kathryn McNabb Cochran, ‘It's a Crime, but Is It a Blunder? The Efficacy of Targeting Civilians in War’, Unpublished paper (2011), pp. 10–11.

100 Were the British objectives the sort that a justified belligerent could aim at? This is a marginal case, but treated as another instance of an incumbent putting down a rebellion, I think it is close enough.

101 Downes, ‘Filling the Graves’, p. 422.

102 Quoted in ibid., p. 434.

103 Ibid., p. 437.

104 Ibid., p. 427.

105 E. E. Evans-Pritchard, quoted in ibid.

106 Ibid., p. 422. For more examples see Lyall, ‘Evidence from Chechnya’, p. 6.

107 Thanks to Jeff McMahan for pressing me on this point.

108 Downes and Cochran, ‘Targeting Civilians to Win’, p. 54.

109 Ibid. For the number see Valentino et al., ‘Bear Any Burden?’, p. 352.

110 Pape, Robert, Dying to Win: The Strategic Logic of Suicide Terrorism (New York: Random House, 2005), p. 75.

111 Downes, ‘Filling the Graves’, p. 420.

112 Downes and Cochran, ‘It's a Crime, but Is It a Blunder?’, p. 10.

113 Downes, ‘Desperate Times’, p. 154.

114 Ibid., p. 167; Downes and Cochran, ‘Targeting Civilians to Win’, pp. 47–8.

115 Downes, ‘Desperate Times’, p. 167.

116 Ibid. One might also think of the Balkan states’ expansion into areas controlled by the Ottoman Empire in 1912–3, the Israeli war of independence, and Turkey's intervention in Cyprus in 1974. Downes and Cochran, ‘Targeting Civilians to Win’, pp. 31–2.

117 For one argument that colonisation can be justified in very limited historical circumstances, see Gans, Chaim, A Just Zionism (Oxford: Oxford University Press, 2008).

118 Obviously a dataset such as this does not allow for differentiating between belligerents according to their objectives. Nonetheless these are interesting and relevant results.

119 Downes and Cochran, ‘Targeting Civilians to Win’, p. 55.

120 Ibid.

121 Downes and Cochran, ‘It's a Crime, but Is It a Blunder?’, p. 21.

122 Valentino et al., ‘Bear Any Burden?’, pp. 375–6.

123 Also if there are other less harmful options but the difference in harm done is justified by the additional benefit achieved.

124 Gartner, Scott Sigmund and Segura, Gary M., ‘War, Casualties, and Public Opinion’, Journal of Conflict Resolution, 42:3 (1998), pp. 278300; Shaw, The New Western Way of War.

125 Chenowith, Erica, Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict (New York: Columbia University Press, 2011).

126 Münkler, Herfried, The New Wars (Cambridge: Polity, 2002), p. 109.

127 Mckenzie Jr., ‘Revenge of the Melians’: 6; Pape, ‘The Strategic Logic of Suicide Terrorism’, p. 346. See also Münkler, The New Wars, p. 111; Slim, Killing Civilians, p. 158.

128 Pape, Dying to Win, pp. 75–6.

129 This is particularly clear in Army, ‘Civilian Casualty Mitigation’.

130 Valentino et al., ‘“Draining the Sea”’, pp. 384, 403.

131 Ibid., p. 384.

132 Gross, Moral Dilemmas of Modern War, p. 158.

133 Valentino et al., ‘“Draining the Sea”’, pp. 384, 403.

134 One might object that well-supported insurgencies are very likely to be justified, and so seeking to suppress them will be unjust, so this is irrelevant for revisionist just war theorists. Perhaps sometimes, but not always; the insurgency in Afghanistan appears well supported, but given its aims of reinstating Taliban rule, is probably not justified. Similar doubts can be raised about other extremist insurgent movements, for example the Mali rebels, who are well supported, but surely not justified in forcibly imposing shari'a law on North-Eastern Mali.

135 Valentino et al., ‘Bear Any Burden?, p. 355.

136 For their research design, see Valentino et al., ‘“Draining the Sea”’, p. 387ff.

137 Ibid., p. 394.

138 Ibid., pp. 397–8.

139 Ibid., p. 401.

140 Ibid., pp. 402–3.

141 Pape, Bombing to Win, p. 269.

142 See Downes, ‘Desperate Times’, p. 164. See also Valentino et al., ‘Bear Any Burden?’, p. 537.

143 Valentino, Benjamin, Huth, Paul, and Croco, Sarah, ‘Covenants without the Sword: International Law and the Protection of Civilians in Times of War’, World Politics, 58 (2006), pp. 339–77, esp. 340.

144 Ibid.

145 Valentino et al., ‘Bear Any Burden?’, p. 350.

146 Ibid., p. 371.

147 Ibid.

148 Valentino et al., ‘Covenants without the Sword’, p. 376. See also Downes, ‘Desperate Times’, pp. 154, 174.

149 Thanks to Jeff McMahan and a reviewer for this journal for pressing me on this.

150 I consider them in depth in Lazar, ‘Necessity in Self-defense and War’.

151 Thanks to a reviewer for this observation.

152 For a similar argument, see Statman, Daniel, ‘Can Wars Be Fought Justly? The Necessity Condition Put to the Test’, Journal of Moral Philosophy, 8:3 (2011), pp. 435–51.

153 Some might have been necessary to avert specific threats posed by the adversary combatants.

154 Notable exceptions: Valentino et al., ‘“Draining the Sea”’; Valentino et al., ‘Covenants without the Sword’.

155 I present my own positive arguments in ‘Distinction: Protecting Noncombatants in War’, unpublished manuscript.

* This article was begun in Oxford, at the institute for Ethics, Law and Armed Conflict, continued at the Institute for Advanced Studies at the Hebrew University of Jerusalem, and finished at the Centre for Moral, Social, and Political Theory, in the School of Philosophy, at the Australian National University with the support of an Australian Research Council Discovery Early Career Researcher Award. The author wishes to thank all aforementioned institutions for their support. Thanks also, for helpful discussion and comments, to Christian Barry, Yitzhak Benbaji, Eyal Benvenisti, Janina Dill, Cécile Fabre, Judith Lichtenberg, David Luban, Jeff McMahan, David Rodin, Henry Shue, Nic Southwood, Danny Statman, Ben Valentino, Michael Walzer, and David Wiens.

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