PUBLIC AFFAIRS QUARTERLY
Volume 12, Number 2, April 1998

INTERPRETING JUST WAR THEORY'S
JUS IN BELLO CRITERION OF DISCRIMINATION
Camillo C. Bica

Finding its origins in religious and philosophic principles and in professional (chivalric) codes and customs, Just War Theory (JWT) has evolved as a convention establishing the moral parameters for the armed conflict between nations. It is the intent and purpose of the JWT, as currently understood, to provide the moral guidelines for when and how nations may wage a just war to resolve national differences and disputes. Duane Cady writes,

                     The just war tradition has evolved around two distinct but related themes: 1) the jus ad                        bellum or moral justification for going to war and 2) the jus in bello or moral guidelines                        for conduct within war ... For a war to be just it must be both morally justified to                                undertake and morally conducted once undertaken.(1)

Though it may be argued that during the early periods of its historical development, the focus of the JWT had been upon its jus ad bellum criteria, it is clear that, as currently understood, jus in hello considerations have become as important in determining the justness of war, specifically, the criterion of discriminating and affording of immunity to innocent human beings (the COD).
It is the intent of this essay, first, to survey and critically examine various attempts at interpreting the scope and application of the COD, and second, to offer an interpretation that is clear, coherent, functional, and faithful to the intent and purpose of the JWT. I will begin by positing a formulation of the COD that embodies the strongest possible commitment to ensuring that innocent human beings are not killed during war-what I will term the "Strong Formulation" (SF).

THE STRONG FORMULATION OF THE COD

The SF accepts the moral prohibition against the killing of innocent human beings as both non teleological and absolute. Further, it recognizes as equally abhorrentand condemns with equal vigor, both an act of killing an innocent human being and an "act of omission," if you will, in which one's non-action allows an innocent human being to be killed.

                      The Strong Formulation. The jus in hello criterion of discriminationprohibits,                                       absolutely, killing or allowing innocents to be killed in war.

DIFFICULTIES IN THE PRACTICAL APPLICATION OF THE SF

The difficulties in applying the SF will become apparent in the following illustration. Consider a situation in which, presumably, no defensive response other than war would mitigate an aggressor's large scale, real, immediate, and serious threat to life, liberty, order, and justice. However, to achieve a successful resolution of this situation-elimination of the threat-requires that innocent human beings be targeted and killed. To refrain from waging war, however, would allow the aggression to continue, anarchy and injustice to prevail in the world, and innocent human beings to be subjugated or killed by the aggressor.
As is apparent in the above, the SF precipitates situations in which (1) a conflict arises between its deontological nature and important teleological considerations, i.e., an action for which there is good, even morally compelling reasons, is prohibited by the COD and (2) the COD prohibits both alternatives available to the agent. The gravity of these difficulties in application has led thinkers to both override and to weaken the COD.

TELEOLOGICAL CONSIDERATIONS AND THE PRINCIPLE OF PROPORTIONALITY IN ITS OVERRIDING FUNCTION (POPOF)

Michael Walzer, and others,(2) have argued that the consequences of ignoring important teleological considerations and not eliminating aggression in some conflict situations-situations he terms "supreme emergencies"-may be so grave as to warrant overriding or suspending the COD. He writes,

                      Can a supreme emergency be constituted by a particular threat-by a threat of                                   enslavement or extermination directed against a single nation? Can soldiers and                               statesmen override the rights of innocent people for the sake of their own political                              community? I am inclined to answer this question affirmatively.(3)

Winston Churchill, during the darkest days of World War II, goes even further. In a speech to the British Cabinet, he argued not merely that the suspension of the COD is morally justifiable in some situations, but that it is a right, indeed a duty, to do so.

                      We are fighting to reestablish the reign of law and to protect the liberties of small                               Countries. Our defeat would mean an age of barbaric violence, and would be fatal, not                        only to ourselves, but to the independent life of every small country in Europe. Acting                         in the name of the Covenant, and as virtual mandataries of the League and all it                                 stands for, we have a right, indeed are bound in duty [italics added], to abrogate, for a                        space some of the conventions of the very laws we seek to consolidate and reaffirm                           . . . The letter of the law must not in supreme emergency obstruct those who are                               charged with its protection and enforcement . . . Humanity, rather than legality, must                         be our guide.(4)

In situations of supreme emergency, then, "humanity," it seems, requires inhumane tactics.(5) Consequently, the Principle of Proportionality has been invoked to allow serious teleological considerations to sanction a proportionately grave response-even if such a response constitutes overriding the COD. The POPOF, then, allows us to measure the values that are being defended in a particular act of war against the intended killing of innocents. Tactics are permissible when the good that is being pursued or defended exceeds the evil of the intended losses that may reasonably be expected.

THE POPOF: FROM JUST WARISM TO WAR REALISM

Walzer defines a supreme emergency as "a struggle over ultimate values, where the victory of one side would be a human disaster for the other(6) and where the danger (of losing) is "of an unusual and horrifying kind."(7) Therefore, the consequences of not successfully resolving the crisis, i.e., of achieving victory, are viewed as so dire as to prevail over any prohibition against the killing of innocents.
Walzer's notion of supreme emergency and the overriding of the COD is problematic for several reasons. First, Walzer fails to provide a moral basis for distinguishing acts of national preservation from acts of self preservation. That is, for permitting the killing of innocent human beings (as a means) in the supreme emergency of national defense when, he believes, killing innocent human beings (as a means) is morally impermissible in the supreme emergency of self-defense.(8) Walzer admits,

                      I am not sure that I can account for the difference without ascribing to communal life                          a kind of transcendence that I don't believe it to have.(9)

Second, those of us who recognize (1) the moral seriousness of war's inevitable inhumanity and destruction; (2) its unpredictability once the fighting has begun; and (3) the very real possibility of significant escalation, (10) do not view war as an extension of diplomacy or foreign policy. Consequently, it would be consistent with the intent and purpose of the JWT, as currently understood, to interpret its jus ad bellum criteria of just cause and proportionality as prohibiting war in any but the most dire of circumstances (and then only as a last resort).(11) In less than critical situations of national differences, disagreements, and disputes, therefore, alternate resolution techniques must be used, e.g., negotiations, diplomacy, etc. Given this interpretation of the JWT, most situations in which a nation is morally justified in waging war, i.e., situations in which the jus ad bellum criteria have been satisfied,(12) qualifies as a Walzian supreme emergency (at least in the view of one or more of the belligerents). Consequently, despite Walzer's implication to the contrary-Walzer maintains that supreme emergencies are rare-in most situations in which a nation is justified in waging war, the COD may be overridden.(13)
Thirdly, determinations of a supreme emergency are not, by any means, limited to global conflicts. With a little imagination, perhaps sparked by a bit of paranoia, most situations of national dispute may be so characterized. Consider, for example, the U.S. involvement in Vietnam. Proponents of the war warned of a "domino effect" and the eventual communist takeover and enslavement of all of Southeast Asia ("stop them now or stop them in San Francisco"). Given the communist frenzy of the time, most viewed such a danger as "unusual and horrifying" (why else would our leaders sacrifice the lives of some 59,000 young Americans) and the campaign to prevent such an eventuality as a "struggle over ultimate values, where the victory of one side (the communists) would be a human disaster for the other (the remainder of the free world)." The resultant crusade mentality of the U.S. forces in Vietnam quickly translated into total war type tactics, i.e., search and destroy, aerial bombardment, napalm, massive relocation of the civilian population, attrition, body count, etc. Though not the official policy, of course, overriding the COD became the norm rather than the exceptional.(14)
Clearly, Walzer's notion of supreme emergency is an ad hoc concession to teleological considerations that, ultimately, entails the complete collapse of the COD. Once a just war begins, i.e., one that satisfies the jus ad bellum criteria, the sets of prohibited actions and of protected individuals are empty-innocents may intentionally be killed. The POPOF, in providing the means to override the COD and to win the war at all costs, constitutes a total shift in moral perspective from Just Warism where war is viewed as rule governed - - to War Realism - - where war is total, amoral, and the only restrictions placed upon the combatants are those dictated by considerations of military necessity.(15) Or, even more suspect, perhaps, it is an attempt to sanction War Realism and the idea of total war within the very fabric of its antithesis, Just War Theory. Consequently, as total war is morally untenable, the POPOF ultimately fails. (16)

TELEOLOGICAL CONSIDERATIONS AND THE DOCTRINE OF DOUBLE EFFECT

The insight that giving teleological considerations overriding force entails the collapse of the COD has not been overlooked. Christian Just War Theory has, at least since the seventeenth century, regarded the immunity of innocent human beings as one of its primary concerns. As such, the Pauline Principle that "one may not do evil that good may come of it" (even a very great good) admonishes against the moral appropriateness of such consequentialist thinking-overriding the COD even in times of supreme emergencies. Instead, theologians have offered the Doctrine of Double Effect to resolve conflicts between the absolute deontological nature of the COD and critical teleological considerations. Joseph Boyle writes,
The doctrine of double effect emerged within Roman Catholic moral theology as a procedure for guiding some decisions that arise in a class of morally ambiguous situation-namely, those in which a straightforward application of an exceptionless moral norm appears to exclude an action for which there are good, and even morally compelling, reasons.(17)
The DDE, it is alleged, effects this resolution by "refining" normative ethical theory as it pertains to war. It does so by focusing upon the moral significance of intention. Thomas Aquinas observes

                      . . . nothing hinders one act from having two effects, only one of which is intended,                            while the other is beside the intention. Now moral acts take their species according                           to what is intended, and not according to what is beside the intention, since this is                            accidental.(18)

Determinations of intention alone, however, though necessary, are not sufficient to warrant withholding agency or abrogating moral responsibility for an act (for giving acts their "moral species"). The Principle of Proportionality - - in, what I will term, its "limiting function" (POPLF) has again been invoked, this time however, to limit the unintended, though foreseen, death and destruction-collateral damage - - that may morally be permitted because of the DDE.(19) Richard Miller describes the POPLF as follows.

                      This principle requires us to measure, in a rough and ready way, the foreseen,                                  unintended losses against the values that are defended in a particular act of war ... Is                        the good that is being pursued or defended commensurate with the unintended                                  losses that may reasonably be expected? Tactics are immoral when the foreseen,                            unintended loss of life is incommensurate with the defended values.(20)

Hence, a reformulation of the COD, acknowledging the DDE and the POPLF, is warranted.
The jus in hello criterion of discrimination, plus the DDE and the POPLF, prohibits absolutely, (1) the intentional killing or allowing innocents to be killed in war and (2) the unintentional, though foreseeable, killing or allowing innocents to be killed in war in numbers that are disproportionate to the defended values.
The DDE, then, "refines" normative ethical theory by redefining the scope of the COD's application and by making specific what is to count as ,'murdering" innocents in war. As the prohibition against the intentional killing of innocents is unaffected by the DDE, theorists are quick to point out that the absolute nature of the COD endures.

THE IMPACT OF THE DDE UPON THE COD

Despite the claim that the DDE/POPLF merely refines normative ethical theory by clarifying moral agency (thereby leaving the COD intact), its impact upon the immunity of innocent human beings is considerable. The DDE significantly narrows the scope of the COD's prohibition from the set of all innocent human beings to the subset of innocent human beings whose death is (1) intentional and (2) unintentional, foreseen, and disproportionate to the good that is being sought. Consequently, while alleging to maintain the deontological and absolute nature of the prohibition, the DDE has provided the means to morally kill significant numbers of innocent human beings-all those whose death is unintentional, foreseen and proportionate to the good that is being sought. Further, it allows tactics that seem indistinguishable from the tactics of total war-if one "withholds" intention. The DDE, Robert Holmes writes,

... enables one to wage war in ways indistinguishable from those sanctioned by just                          necessity, which legitimizes all means necessary to the prosecution of a justified                              war; it is ... military necessity adapted to a justified war. And double effect legitimizes                        every action legitimized by just necessity, provided only that one not intend the harm                         that he does.(21)

As such, deontology and absolutism have, for all intents and purposes, given way to teleology and considerations of military and political necessity. Consequently, the DDE, like the POPOF, constitutes a shift in moral perspective from Just Warism to War Realism.(22) Again, as total war is morally untenable, the DDE also fails.

FORMULATING THE COD

It now remains to offer an interpretation of the COD that is morally acceptable, functional, faithful to the intent and purpose of the JWT, and avoids the difficulties in application noted above. Before doing so, however, it is necessary to provide and briefly explain the assumptions and terminology that are critical to this undertaking.

IN SEARCH OF LINGUISTIC AND CONCEPTUAL CLARITY

In formulating the COD, I will avoid, completely, using the terms "innocence" and "non innocence." I do this in the interest of clarity area avoid equivocation as, traditionally, innocence and non innocence has served a dual function in Just War literature, i.e., to discriminate (1) participants from nonparticipants and (2) those who participate knowingly and willingly from those whose participation is in ignorance and/or under duress. Instead, I will use the terms "combatant" and "noncombatant" to denote participation or non-participation in the violence and "culpability" and "non-culpability" to denote moral responsibility or non-responsibility for their involvement. In addition, I will use the terms "justifiable" and "unjustifiable" to denote whether the combatant is warranted in her violence, i.e., whether the war in which she participates is one of national defense or of aggression. Unjustifiable Combatants (those who wage a war of aggression), whatever their culpability, i.e., whether they are acting violently knowingly and from free will and consent or in ignorance and/or under coercion and duress, are liable, all things being equal, to be targeted and killed in national defense. Their liability, in my view, is the result of their failure to respect the rights of the victims of their aggression.(23) Noncombatants are non-liable as they have done nothing to warrant being injured or killed in war.(24)

THE FINAL FORMULATION (FF)

I offer the following as my final formulation of the jus in bello criterion of discrimination.

The jus in hello criterion of discrimination prohibits, prima facie, (1) the intentional                              killing of non-liable human beings; (2) acts in which the killing of non-liable human                             beings is a reasonably foreseeable, though, perhaps, unintentional consequence; and                        (3) allowing, in situations in situations that are non-supererogatory, non-liable human                         beings to be killed in war.

In the final formulation, it is crucial to note, first, that the prohibition against the killing and allowing to die of non-liable human beings is not absolute, i.e., prohibited in every conceivable circumstance. This is an important concession, I think, as it acknowledges the possibility of hypothetical cases in which defending absolutism would border on a moral fanaticism. Consequently, it is conceivable that a situation of conflicting prima facie duties may arise in which overriding the COD is warranted. However, for those of us who maintain the intrinsic value of persons and that their moral worth is reflected in their possessing rights, there is no stronger moral presumption and, as such, no stronger prima facie duty, than that against the killing of non-liable human beings. For all intents and purposes, in the world as we know it, populated by human beings as we know them, it is in fact wrong and we have an actual duty not to kill non-liable human beings in war.(25)
Second, the Final Formulation, by also prohibiting the "indirect" killing of non-liable human beings, makes the point that a person is not necessarily immune from moral criticism and condemnation for the unintended, secondary effects of an act especially if the non-liable deaths could reasonably have been predicted.(26)
Third, the Final Formulation acknowledges a moral obligation to be a "minimally decent Samaritan," i.e., to assist others where doing so does not pose unacceptable personal sacrifice or risk.(27) Please note, however, that not killing non-liables and acting in the interest of preserving their lives are not mutually exclusive. To condemn a particular means of attempting to save non-liable lives, e.g., war, because it entails killing other non-liable human beings, does not require a passivism while whole populations are subjugated and killed. Other defensive (right asserting) responses are available, e.g., nonviolent resistance, embargos, sanctions, etc.(28) To ensure, however, that a nation does not, by waging war, become the prosecutor of the very evil it is alleging to eliminate, morality does require that its leadership opt for an alternate defensive response, even if the alternative is riskier or less effective.(29)
Fourth, as liability is determined independently of culpability, the Final Formulation does not prohibit either individual or national defense against what has been referred to in the literature as an "innocent aggressor," or what I would term the "Non-Culpable Unjustifiable Combatant.(30)

UNINTENTIONAL VS. ACCIDENTAL

Given this interpretation of the COD, since one may foresee the possibility of non-liable human beings being killed unintentionally in any act of war-even the most deliberate of plans may go awry-doesn't the Final Formulation entail an absolute pacifism? I think not. Foreseeing the possibility of unintended and unexpected non-liable deaths - - unexpected because reasonable precautions have been taken to prevent such an occurrence - - is quite different from foreseeing unintended non-liable deaths that are as probable an occurrence as is the intended effect. This is attested to by the linguistic appropriateness of using the term "accidental" to describe the former but not the latter despite the fact that both are unintentional. Consequently, if x is prohibited and if in doing y it is possible that x may occur accidentally, it is not the case that doing y should, necessarily, be prohibited. To deem every act of war immoral and to prohibit its occurrence, then, because of the possibility that non-liables may be killed accidentally, is like deeming immoral and prohibiting the building of automobiles because of the possibility of accidental auto injuries and deaths.
The Final Formulation, therefore, by prohibiting the unintentional killing of non-liable human beings in instances where it is reasonably foreseeable that non-liable deaths are as probable an occurrence as are the deaths of liable Unjustifiable Combatants,(31) does not entail an absolute pacifism.

CONCLUSION

I have considered various attempts to interpret the COD and demonstrated their moral untenability. Further, I have offered a formulation of the COD that is both functional and faithful to the intent and purpose of the JWT, i.e., it takes seriously the prohibition against the killing of non-liable human beings. It accomplishes this by offering a constraint that, while not absolute - - overriding the COD remains a possibility - - establishes a very strong moral presumption against the killing of non-liable human beings.
No one denies that teleological considerations are important. However, what makes them so is the fact that they involve the imminent violation of strong human rights (life, liberty, to live in a nation with political sovereignty and territorial integrity, etc.). And one does not assert the rights of some non-liable human beings by knowingly violating the equally strong rights of others. That would entail treating human beings as means and not as ends in themselves. And in such situations numbers do not count.

School of Visual Arts

NOTES

1. Robert Phillips and Duane Cady, Humanitarian Intervention (Maryland:
Rowman and Littlefield, 1996), p. 36.

2. Gerald Mara, for example, maintains that if one's cause/political order is morally superior when compared to the relative evil of an opponent, during a crisis situation the rights of innocents may be overridden. See Gerald M. Mara, "Justice, War, and Politics: The Problem of Supreme Emergency," in The Nuclear Dilemma, eds. William V. O'Brien and John Langan. William O'Brien, while maintaining that any killing of innocent human beings is wrong, argues that a war in which such tactics are utilized may still be moral. Sometimes rights may be overridden and violations offset by the "overwhelming justness" of the cause. William O'Brien, The Conduct of a Just and Limited War (New York: Praeger Press, 198 1), Chapters 3 and 4.

3. Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), p. 254.

4. Quoted in Michael Walzer, Just and Unjust Wars, p. 245.

5. I am reminded of the now infamous comment of an infantry commander in Vietnam who observed that "we will free this village from communism if we have to kill every person to do it."

6. Michael Walzer, Just and Unjust War, p. 253.

7. Ibid., p. 253.

8. While never offering a justification, Walzer does, however, offer an intuition regarding the critical importance of preserving the values of international society. Further, rather than give up his teleological concession to national preservation, Walzer is prepared, for the sake of consistency, to morally countenance murder during situations of supreme emergency on the individual level. He writes

                      We might better say that it is possible to live in a world where individuals are                                     sometimes murdered, but a world where entire peoples are enslaved or massacred is                        literally unbearable. For the survival and freedom of human 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 ... challenges (to these values)                        . . . bring us under the rule of necessity (and necessity knows no rules).

Michael Walzer, Just and Unjust Wars, p. 254. 9 . Ibid., p. 254.

10. When commenting upon the seriousness and unpredictability of war, General Eisenhower warned, When you resorted to war ... you didn't know where you were going ... If you got deeper and deeper, there was just no limit except ... the limitations of force itself. Quoted in Michael Walzer, Just and Unjust Wars, p. 23.

11. Pope Pius XII, in his 1944 Christmas message, goes even further. He writes: "The theory of war as an apt and proportionate means of solving international conflict is now out of date." Quoted in Paul Ramsey, War and the Christian Conscience, p. 84.

12. For a detailed discussion of the jus ad bellum criteria, see Richard Miller, Interpretations of Conflict (Chicago: University of Chicago Press, 199 1), pp. 12-15.

13. One may also conclude from this interpretation of the JWT that situations in which a nation is morally justified in waging war are rare.

14. Interestingly the notion of supreme emergency may have an in bellum application as well. Despite the fact that a war may not be viewed as supreme emergency, a particular engagement within the war may warrant such a status. The North Vietnamese siege of the U.S. Marine Base at Khe Sahn was regarded as a supreme emergency by the U.S. military and political leadership-so much so that the use of "tactical" nuclear weapons were seriously considered. Thankfully, the "siege" was merely a diversionary tactic by the North Vietnamese Army and Khe Sahn was "liberated" without the use of such weapons of total war.

15. For perhaps the definitive study of War Realism, see Karl Von Clausewitz, On War (New York: Penguin Books, 1968).

16. I argue for the moral untenability of total war in Just War Theory and a Practical Pacifism, Ph.D. diss., City University of New York, 1995, pp. 37-65.

17. Joseph Boyle, "Who is Entitled to Double Effect," in The Journal of Medicine and Philosophy 16, no. 5 (October, 1991): p. 475.

18. Quoted in, Paul Ramsey, War and the Christian Conscience, p. 39.

19. In fact Aquinas anticipated this occurrence during his initial formulation of the DDE. He wrote: "And yet, though proceeding from a good intention, an act may be rendered unlawful, if it be out of proportion to the end." Quoted in Paul Ramsey, War and the Christian Conscience, p. 40.

20. Richard Miller, Interpretations of Conflict, p. 15.

21. Robert L. Holmes, On War and Morality (Princeton: Princeton University Press, 1989), p. 196.

22. For a more detailed refutation of the DDE, see my, "Collateral Violence and the Doctrine of double Effect," in Public Affairs Quarterly 11, no.1 (January, 1997).

23. Some may argue that agency is required to violate a right. As Non-Culpable Unjustifiable Combatants lack agency (due to ignorance, coercion, etc.), they violate no rights of the victims of their aggression. 1, however, agree with Judith Jarvis Thomson that

... there are good reasons in general to say that agency is no more required for                                  violating a right than fault is ... I stress that what makes it permissible to kill them                             (the aggressors) is the fact that they will otherwise violate your rights that they not kill                        you.

Judith Jarvis Thomson, "Self Defense," in Philosophy and Public Affairs 20, no. 4 (Fall, 1991): 300.

24. Even a Culpable Noncombatant - - the infamous hairdresser who ardently supports the war of aggression, buys war bonds, expects to benefit by victory - - is non-liable to be targeted and killed in national defense. For a more detailed discussion of liability see my "Establishing Liability in War" in Public Affairs Quarterly 11, no. 3 (July, 1997) 217-228.

25. Given the strength of this prima facie duty against the killing of non-liables, I cannot think of a practical situation that would warrant overriding the COD. My difficulty in producing such an example is due not to a deficit imagination, but to the fact that such a scenario would morally require violating the rights of some non-liables (by killing them) so that others may avoid a violation of their rights (not to be killed, enslaved, etc.). And I cannot imagine a scenario in which morality would require such a denial of intrinsic human value. We do not, for example, permit the targeting and killing of children and infants in war though such tactics may undermine the war effort and save a proportionately greater number of other non-liable lives. Nevertheless, interpreting the COD as a very strong-even the strongest-prima facie duty does not make it absolute. Should a situation arise, the moral import of which would require a moral fanaticism to ignore, given the prima facie nature of the prohibition, the COD may, conceivably, be overridden.

26. Anthony Appiah says it well.

Nobody supposes the claim that we have moved towards allowing a greater role for                            intention in our moral assessments entails that we now suppose that a person is                              immune from criticism for an unintended consequence of an act ... It is no defense to                        moral (or legal) responsibility for the death of another person that we did not intend it,                        if our acts could reasonably been predicted to put other people's lives at risk.

Appiah, Anthony, "Racism and Moral Pollution," in Collective Responsibility, eds. L. May, and S. Hoffman, (Maryland: Rowman & Littlefield, 1991), p. 221.

27. Given space constraints, I must defer determining the parameters of "unacceptability" as well as the strength and scope of this prima facie obligation to another occasion.

28. Each, of course, with their own moral difficulties in regard to non-liables.

29. For the details of this argument see my Just War Theory and a Practical Pacifism, pp. 249-272.

30. Sometimes it is said that individuals have acted in ignorance when they should have known better. While a general principle can hardly be expected to meet all contingencies, I think that the Final Formulation does not exclude the possibility of liability due to negligence. This is attested to by the fact that, one who, through negligence, violently disrupts or destroys the territorial integrity/political sovereignty of another nation or injures/kills its citizenry is liable to killed in war. Additionally, such individuals are liable to prosecuted for their activities post bellum. See my Just War Theory and a Practical Pacifism, pp. 145-184.

31. I will leave the sticky, but important, discussion of "Reasonably foreseeable" and "probability of occurrence" to another occasion.