(07b) The Principle of Distinction

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The Principle of Distinction
Asa Kasher a
a
IDF College of National Defense and Tel Aviv University, Israel
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Vol. 6, No. 2, 152167, 2007
The Principle of Distinction

ASA KASHER
IDF College of National Defense and Tel Aviv University, Israel
ABSTRACT The principle of distinction (or discrimination) has been a pillar of any major
version of the doctrine of just war, being one of the two principles of jus in bello. That principle
was presented, illustrated, interpreted, explained, defended, and developed in Michael Walzer’s
seminal book Just and Unjust Wars, in its several editions as well as in his recent Arguing about
War. The purpose of the present paper is to reconsider current understanding of the principle,
which owes much to Walzer’s important contribution to the philosophical tradition of the doctrine
of just war.
KEY WORDS: Just War Doctrine, Jus in Bello, Distinction, Discrimination, Combatants,
Walzer
Principle of Distinction: Conceptual Elements

The principle of distinction introduces an obligation to discriminate during
an armed conflict between combatants, who are appropriate targets of attack
and destruction, and noncombatants (civilians), who are inappropriate
targets.
Apparently, the principle of distinction involves a distinction between
different targets. Actually, it involves a distinction between different contexts
of justification. Those contexts occur during an armed conflict, when a
possible interference in human life is under consideration. The principle
of distinction is an obligation to resort to different standards of justification
of such interference, according to certain features of the contexts.
The basic conceptual element of the principle of distinction is thus the idea
of justification of interference in human affairs. It plays a major role in the
moral conceptual framework that underlies the doctrine of just war, whether
in its ancient form, theological formulation, or legal manifestation. Cicero,
for example, used his principle of humanitas, according to which all people
are entitled to be considered subject to the principle of justice: ‘The first office
of justice is to keep one man from doing harm to another, unless provoked by
wrong’ (Cicero 1990: 1.7.20). Every reasonable conception of human dignity
will include an element of required justification for the interference of one
person in another person’s life.
Correspondence Address: Dept. of Philosophy, Tel Aviv University, Tel Aviv 69978, Israel.
1502-7570 Print/1502-7589 Online/07/020152 16 # 2007 Taylor & Francis

DOI: 10.1080/15027570701436841
The Principle of Distinction 153
The principle of distinction, in its simplest form, seems to divide all

contexts of interference during an armed conflict into two types of contexts in
which different standards apply.
Context Justification
Combatants Always
Civilians Never
Under such a description, the principle of distinction rests on two extreme

conceptions. First, the conception that, during an armed conflict, men in
(military) uniform are deeply and practically different from the rest of their
compatriots, even when all of them are citizens of an enemy state under
conditions of an armed conflict. Second, the conception that, during an
armed conflict, there is always justification for attacking men in (military)
uniform, while there is never justification for attacking the rest of their
compatriots.
This is certainly a crude depiction of the principle of distinction. Better-
developed depictions of the principle involve more moderate conceptions.
The category of ‘combatants’ in the column of ‘context’ in the previous
paragraph is replaced by a category that does not include all the combatants,
on the one hand, and does include some of civilians, on the other. Thus,
members of military medical units are excluded, whereas civilians who
are engaged in the production of ammunition, when they are so engaged, are
included.
Similarly, the extreme standards of justification, ‘always’ and ‘never,’ are
replaced by an array of standards. For example, a qualified standard that is
weaker than ‘always’ applies to PoWs as well as wounded or sick men and
women in (military) uniform. Similarly, a qualified standard, which stems
from the general principle of double effect and is weaker than ‘never,’ applies
in contexts that include both people in (military) uniform and others, and
involve considerations of military necessity.
Roughly interpreted, ‘always’ might be taken to mean ‘under all
circumstances and by all means,’ while ‘never’ might be taken to convey
‘under no circumstances and by no means.’ Our previous examples pertained
to the ‘under all circumstances’ parts of those interpretations. Another
example, related to the ‘by all means’ part of that understanding of ‘always,’
would be the standard of prohibiting ‘unnecessary suffering,’ present already
in the Preamble of the St Petersburg Declaration (1868), which states that it
would be ‘contrary to the laws of humanity’ to employ ‘arms which uselessly
aggravate the suffering of disabled men,’ combatants who have been disabled
in order, ‘to weaken the military forces of the enemy,’ which is ‘the only
legitimate object which States should endeavor to accomplish during war’’
(Dinstein 2004: 5661).
Given any presentation of the principle of distinction, two major questions
of interpretation remain to be answered:
154 A. Kasher
a. What are the values reflected in the principle of distinction as presented?

b. What is the moral validity of the principle of distinction as presented, in
some given sense of ‘moral’?
Here, too, an extreme position is possible and even prevalent. It is expressed

in the following combination of answers to those two questions: (a) the values
reflected in the principle of distinction are moral ones, and (b) the way
those values are manifested in the principle of distinction renders it morally
valid.
Yet again, moderate positions are also possible. An example would be
the combination of other answers to the same questions. (a) Some of the
values reflected in the principle of distinction are moral and some are pru-
dential. The latter values reflect political frameworks of identity, power, and
interest, in which support is lent to the former values, which are indepen-
dently justifiable. Accordingly, (b) the principle of distinction is of moral
significance, but it is not morally optimal. From a moral point of view, a
world in which the principle governs military activity during armed conflicts
is better than a world in which it does not, ceteris paribus, but alternative
principles can be suggested that would govern military activity in a morally
better way.
The difference between an extreme position and a moderate one is manifest
in the natural portrayal of any instance of military activity that is incompatible
with the principle of distinction as presented. According to the extreme
position, a military activity that is incompatible with the principle is in breach
of it and therefore should be forbidden in advance, condemned when it takes
place, and the subject of a due process of justice that can result in punishment
after it takes place. However, according to a moderate position, a military
activity can be both incompatible with the principle of distinction as presented
and morally justified, under the circumstances, even if they are not of supreme
urgency (cf. Walzer 1973: ch. 16; Walzer 2004).
In conclusion to this brief outline of the conceptual background of
common depictions of the principle of distinction, I present the major
conceptual ingredients that have emerged:
a. There is an obligation to justify every military activity;

b. There are different standards of justification of military activity;
c. Standards of justification apply to groups of people, defined by the roles
they play in the given armed conflict;
d. Those groups of people have to be delineated in ways that are reasonable
and practical;
e. Combatants form the core of one of those groups, and civilians form
the core of another one, but both cores are extended in several direc-
tions;
f. The core of the norm that applies to combatants is that usually they
form legitimate targets of hostile military activity, with some excep-
tions;
g. The core of the norm that applies to civilians is that usually they are
entitled to an immunity from hostile military activity, with some
exceptions;
h. Such a framework of delineations and norms is morally justified, either
in its essence or in being a step in the morally right direction.
I turn now to a reconsideration of some of these elements.
Justification of Military Activity

I take it for granted that, from a moral point of view, justification is required
for every action that jeopardizes the life, health, wellbeing, or independence
of a person. Since military activities during an armed conflict are usually
expected to jeopardize people, they have to be justifiable.
Justification of an action can always be portrayed as an answer to a
question of a certain kind. It is a question about the reasons why that action
was, is being, or is planned to be performed. Answering a question about
reasons for action involves (a) a specification of ends pursued by carrying out
the action and (b) an argument that shows that such a pursuit of the specified
end is permissible or even obligatory according to some background
normative system.
When the action under consideration is a military activity carried out by a
military force of a state, on its behalf, during an armed conflict, who has an
obligation to answer the question of justification as posed by whom, on
grounds of what normative system?
From a moral point of view, every person whose life, health, wellbeing, or
independence is jeopardized by the military activity under consideration is
entitled to pose a question of justification and receive an adequate answer, in
an appropriate form. Naturally, when a military activity is carried out on
behalf of a state, it is the latter that has to answer justification questions about
the former. Accordingly, every person, whether a combatant or not, in
military uniform or not, a citizen or not, whether a friend or foe, is entitled to
an adequate answer to the question of justification, given by the state
regarding an activity of whose military force is under consideration.
To be sure, being entitled to an adequate answer from a state does not
mean that the state is under obligation to send the person a personal message.
Although such a personal interaction is required under a variety of
circumstances during an armed conflict, on many occasions an adequate
answer is presumably available on some abstract level of considerations that
accompany military activity.
An adequate answer to a justification question, as posed by a person, is
an answer that, under some ideal conditions, would convince him or her.
First, the specified end of the military activity under consideration would
under such ideal conditions be admitted as a legitimate, even if undesirable
end, from the point of view of the person who has posed the question.
A simple example would be that of an air force pilot who would, even under
156 A. Kasher
ordinary conditions, accept as legitimate though undesirable the end of using

antiaircraft fire aimed against him, when he is carrying out a sortie meant to
destroy an enemy military airport.
Secondly, and crucially, under the same ideal conditions, the person who
posed a justification question would accept as valid the argument that
purports to show that the military activity under consideration is permissible
or even obligatory according to a background normative system. Such a
validity judgment consists of two parts: firstly, the argument is accepted as
showing that the consequences follow from the premises, and secondly, the
normative system is accepted as grounds for practical decisions, under the
circumstances of the military activity.
The first part is a matter of logical validity, which we assume is universally
characterized, understood, and applied. However, the second part seems to
involve a difficulty that cannot be simply obviated. Two types of cases are
involved. First, consider the case of a justification question that is posed by a
person who is a citizen of one party to an armed conflict and is addressed to a
state that is another party to the same conflict. The state that provides the
person who posed the justification question with an answer will put forward
an argument that rests on a normative system and factual assumptions that
fit its point of view. Quite commonly, both the normative system and the
factual assumptions are not shared by the state and its foes. Why should a
person accept practical consequences that jeopardize him or her, when the
normative and factual grounds on which they rest are not his/her normative
system and factual assumptions? Secondly, consider the case of a justification
question that is posed by a person who is a citizen of a party to an armed
conflict and is addressed to his/her own state. Again, commonly, both the
normative system and factual assumptions used by the government of the
state are not shared by the citizen and his/her government. Differences of
value and belief systems often hold between governments and some citizens,
whether in a democracy or in a state of another regime.
Here is where the idea of ‘ideal conditions’ has to be used. We assume that
an ideal state can be theoretically described and practically approximated, in
which states use a normative system that is shared by all parties to the
conflict. Such a normative system is not a comprehensive view, one that
‘includes conceptions of what is of value in human life, ideals of personal
virtue and character, and the like’ (Rawls 1999a: 480). The normative system
that is used under ideal conditions is shared by different comprehensive views,
though each of them, religious or nonreligious, does it for its own reasons.
It is what Rawls (1999b) calls ‘public reason,’ as developed both for the
society of citizens of a certain state and for the society of peoples. Public
reasons provide those who hold ‘irreconcilable comprehensive doctrines’ with
‘reasons they may reasonably give one another when fundamental political
questions are at stake’ (Rawls 1999b: 132).
We further assume that principles of public reason give rise to certain
guidelines concerning the required relationships between beliefs, evidence in
their support, on the one hand, and actions taken on their grounds, on the
other. The more significant are the practical steps a party takes on the
grounds of a belief about circumstances, the stronger has the evidence one has
at one’s disposal to be.
Public reason (as portrayed by Rawls) is not the normative system used by
every government and every state under the circumstances of an armed
conflict. However, much of what we encounter in constitutions of democratic
states and in law is a valuable approximation to public reason.
Accordingly, I will assume that every justification question about a military
activity has to be answered on the grounds of public reason.1
Different Standards of Justification

A conspicuous fact about moral behavior is that, under different circum-
stances, the same person often acts in different ways. A naı̈ve though quite
common depiction of that fact ascribes the difference to a change in moral
principles that accompanies the change in circumstances. A sophisticated
rejoinder would show that the same moral principle can be applied to
different circumstances and lead to different actions. Such a rejoinder appears
both when practical guidelines of the form ‘thou shalt’ or ‘thou shalt not’ are
considered and when general moral theories are under consideration.
However, as we have seen, a conceptual element of the principle of
distinction is that there are different standards of justification of military
activity during an armed conflict. Amazingly, the rather sophisticated
conceptual framework of the doctrine of just war resorts to the idea of
different standards of justification of moral activity that should be applied
under different circumstances.
Different standards of justification can be taken to be different con-
sequences of an underlying general standard. Thus, considerations of justified
military activity under extreme emergency conditions seem different from
those pertaining to military activity under the ordinary conditions of an
armed conflict. However, it would be natural to ponder the possibility that all
those considerations rest on some unified conception, perhaps even on a
single principle that pertains to all circumstances, whether of extreme
emergency or not. Attempts to devise such a unified conception would, in
a sense, be on a par with attempts to develop a unified theory in Physics, to
explain seemingly different laws as manifestations of an underlying general
law.
Alternatively, differences in standards of justification can be taken to
reflect essential differences between the related domains. An analogy
can here be drawn from a modular conception of the mind (cf. Fodor
1983). Standards of appropriate utterance of sentences in contexts are
clearly different from standards of appropriate calculation, simply because
the linguistic system that governs the utterance of sentences in contexts and
the arithmetical system that governs calculation are different systems,
essentially independent of each other. Any attempt to derive standards
of appropriate utterance and standards of appropriate calculation from
some deep standard which is neither linguistic nor arithmetical would seem
utterly futile.
158 A. Kasher
According to such an approach, the notion of an armed conflict involves

essentially different domains of activity to which different standards of
justification of military activity should apply. Such essential differences
appear on two levels. Firstly, there are armed conflicts of utterly different
types: conflicts that involve only national military forces, conflicts
that involve guerrilla organizations, and conflicts that involve terrorist
organizations. The deep differences between such conflicts may seem to
warrant the introduction and application of different standards. Secondly,
within the framework of the same war, situations of utterly different
types occur: situations in which only combatants are involved, situations in
which only noncombatants are involved, and situations in which both
combatants and noncombatants are involved. It is a major conceptual
element of the principle of distinction, to which we will return in the
sequel, to consider such situations as essentially different from each other
to an extent that warrants different standards of justification of military
activity.
The best method for the conceptual development of standards of justifica-
tion seems to consist of two stages: firstly, the development of different
standards for apparently different armed conflicts and situations within armed
conflicts, and secondly, attempts to develop a unified conception that underlies
all the different standards.
Distinction
Often, a moral distinction between two individuals will rest on morally
relevant differences between certain actions they deliberately performed or
failed to perform. Moral evaluations according to a certain moral theory will
involve differences in the intentions reflected in those actions, while moral
evaluations according to another moral theory will involve differences in the
general effects of those actions. Interestingly, the distinction found at the core
of the principle of distinction rests neither on differences between certain
actions that have already been performed, nor on differences in certain
intentions that have already been entertained, resulting in certain actions, nor
on certain effects of certain actions that have already been performed. Two
problems, then, arise: firstly, what is the nature of that distinction, and
secondly, why is it morally relevant?
Those problems are deeper than they seem. When we consider two
individuals in a violent conflict, it is usually the case that one of them will
turn out to be justified in having resorted to violent activity, while the other
one will not be thus justified. If we consider two groups of individuals in such
a violent conflict, it is often the case that members of one group are justified
in having resorted to some violent means, while members of the other group
are not. Whether the conflict is between two individuals or two groups of
individuals, the morally relevant distinction will usually be a distinction
between the individuals or the groups of individuals, and will rest on some
deliberate actions performed by one individual or group assaulting the other
individual or group, respectively.
However, when an armed conflict is under consideration, between states or

other collectives, the distinction involved in the principle of distinction is not
between the aggressive party and the attacked one. It is rather a distinction
that cuts across both collectives, a distinction between a certain part of the
aggressive collective and a similar part of the attacked one, on the one hand,
and another part of the aggressive collective and a similar part of the attacked
one, on the other. Moreover, it is a distinction that is meant to be of great
moral significance. What, then, is actually the nature of such a peculiar
distinction, and how can it be of great moral significance?
The major conceptual element of any purported answer to those is
questions is the notion of combatants. Some features of the properties of
being a combatant constitute the gist of the distinction and its moral
significance.
Combatants
The major conceptual element of the distinction protected by the principle of
distinction is that of being a combatant. Usually, the distinction is presented
as one between combatants and noncombatants, rather than in terms of
‘civilians’ and ‘noncivilians.’ Even if the latter presentation rather than the
former had been used, any elucidation of its meaning would include the
observation that by ‘civilian’ we mean a person who is not a member of an
armed force, particularly a military force.
Under the international laws of international armed conflict, combatants
are either ‘members of the armed forces of a belligerent party (except medical
and religious personnel)’ or ‘any other persons who take an active part in the
hostilities’ (Dinstein 2004: 27). The clear merit of such a delineation of the
group of persons regarded as ‘combatants’ is that it is relatively clear and
practical. Members of armed forces presumably wear uniforms that identify
them as such. Persons who take an active part in hostilities are usually easily
identifiable as such when they are engaged in such activities.2
Those two categories of combatants form an odd combination. The second
category, which involves taking active part in the hostilities of an armed
conflict, indicates that the essence of being a combatant is active participation
in hostilities in the context of an armed conflict, when and where a person
acts in a way that directly jeopardizes the life, health, wellbeing, or
independence of other persons. The core of a military force of a belligerent
state indeed consists of persons who are combatants, not only in the sense of
the first category, of being a member of the armed forces, but also in the sense
that characterizes the second category, of acting in a way that jeopardizes
other persons in the above-mentioned ways.
However, beyond the core of a military force of a state, there are numerous
men and women in military uniform who do not take an active part in the
hostilities of an armed conflict, whose regular activities as members of the
military force do not directly jeopardize other persons in any of those ways.
If one is interested in a practical delineation that does not exclude any person
who is directly involved in jeopardizing other persons, then using the category
160 A. Kasher
of ‘members of the armed forces’ makes sense. If, however, one is interested in
a morally justified delineation that includes those who directly jeopardize
others, then the broad category of ‘members of the armed forces’ should not
be used. The only possible justification of using that broad category would be
that the distinction between being directly and regularly involved in
jeopardizing others and not being thus involved in jeopardizing others is
vacuous, because every member of an armed force of a state is considered
directly involved in hostilities which jeopardize others.
In an attempt to justify that vacuity claim, several arguments are used.
Firstly, even if members of an armed force are not presently engaged in the
hostilities of the armed conflict, they can be deployed in some front line and
soon become engaged in those hostilities. Even if presently they are less
dangerous than members of the armed force who are active in the hostilities,
they are still dangerous to an extent that justifies a delineation of combatants
that includes them. To see why this argument is morally problematic, consider
an analogy that involves individuals in an urban context. Assume a person’s
neighbors are two brothers who are expected to come to the help of each
other when in trouble. When one of those brothers attacks a person, while
the other brother is not in the vicinity at all, is there a moral difference that
the person should take into account between the assaulting brother and the
absent one? To be sure, both are dangerous, but under the circumstances, each
of them is dangerous in a different way, and the difference is of moral
significance. The possibility of an agent becoming directly active in a conflict,
whether one is a violent brother in the latter case or one is a member of an
armed force whose unit is presently deployed in a remote area in the former
case, should not blur the moral difference between an actual participant in a
violent conflict and a possible participant in such a conflict.
Secondly, it has been pointed out, in an attempted defense of the vacuity
claim, that even if not every member of an armed force is directly involved in
the hostilities of an armed conflict, every person in a military uniform is
presumably indirectly involved in those hostilities. An officer in a military
academy, for example, is as such not directly involved in the hostilities;
however, the cadets he or she instructs are going to be directly involved in
them in ways they master as cadets instructed by that officer. A military
judge, to use another example, is as such also not directly involved in those
hostilities; however, in order for the armed force to be able to effectively
participate in an armed conflict, it is necessary that some extreme cases of
breaches of military discipline be adjudicated by the military judge. Hence,
the judge, too, is indirectly involved in the hostilities of an armed conflict.
Assuming the armed force of a state is an efficient organization, it seems
reasonable to presume that every member of it is either directly involved in
hostilities during an armed conflict to which the state is a party, or is
indirectly involved in them. The vacuity claim is supported by that
observation, when involvement of any type in hostilities is held to be direct
involvement in the jeopardy of others.
However, the second argument is as problematic as the first has been shown
to be. The fact that every member of an armed force is at least indirectly
involved in hostilities during an armed conflict does not mean that there is no
morally relevant distinction between a person who jeopardizes his neighbor
by being directly involved in an assault on the neighbor and between a person
who jeopardizes his neighbor by knowingly being the coacher of an assailant.
There is a moral distinction between ways and extents of involvement in
jeopardizing people by military activity that is being disregarded when the
vacuity claim is made in support of the common use of an odd concept of
combatants.
To my mind, there are morally important distinctions within the ordinarily
delineated realm of combatants.
Degrees of Involvement
Rather than using a concept of combatants that blurs a variety of morally
important distinctions, one can introduce a scale of involvement in hostilities
that does not blur such distinctions. This can be demonstrated by the scale of
involvement in terrorist activity, which we introduced in our work on the
military ethics of fighting terrorism (Kasher and Yadlin 2005a,b). For the
sake of that work, we defined a ‘terrorist act’ as one that is carried out by
individuals or organizations, not on behalf of any state, for the purpose of
killing or otherwise injuring persons, insofar as they are members of a
particular population, in order to instill fear among the members of that
population (‘terrorize’ them), so as to cause them to change the nature of the
related regime or of the related government or of policies implemented by
related institutions, whether for political or ideological (including religious)
reasons.3
As part of our principle of distinction with respect to fighting terrorism
(Kasher and Yadlin 2005a: 1314), we have:
Military acts and activities, carried out in discharging the duty of the state
to defend its citizens against terror acts or activities, while at the same time
protecting human dignity, should take into account, to the greatest possible
extent, the distinctions between different types of direct involvement in terror.
Here is a scale of direct involvement in terrorist acts or activities, in the order
of relative imminence of the danger posed by involvement:
(b.1) Persons posing an immediate danger (e.g., a bearer of an explosive

belt);
(b.2) Persons providing immediate support to persons posing an immediate
danger (e.g., a driver, a guide);
(b.3) Persons dispatching other persons to pose an immediate danger;
(b.4) Persons preparing devices for acts or activities of terror (e.g., an
‘engineer,’ producing explosive belts, or the director of a ‘laboratory’
of such production);
(b.5) Persons providing essential ingredients of devices of terror (e.g., a
‘pharmacist,’ deliberately supplying major ingredients of explosives, or
a person who lends crucial funds);
162 A. Kasher
(b.6) Persons planning an act or activity of terror, whether its operational

idea or its practical details;
(b.7) Persons recruiting certain other persons to carry out acts or activities
of terror;
(b.8) Persons making operational decisions to carry out a planned act or
activity of terror;
(b.9) Persons making general operational decisions related to acts or
activities of terror (e.g., a decision to adopt a policy of making
attempts to carry out acts or activities of terror, or granting
permission for certain women to participate in an activity of terror
and bear explosive belts).
Any person who is involved in acts or activities of terror of types (b.1)(b.9) is

regarded as being directly involved in terrorism.
Ascription of any type of direct involvement in terror to a certain person
ought to be made only on grounds of reliable, updated, and convincing
evidence. Such evidence may be probable rather than certain.
Any person who is involved in acts or activities of terror in some other way
is regarded as being indirectly involved in terror. Examples of such indirect
involvement in terror would be:
(b.10) Developing and operating funding channels that are not crucial to
acts or activities of terror;
(b.11) Preaching in a mosque in general praise of past suicide bombers;
(b.12) Making payments to families of past suicide bombers, when and
where such payments are not crucial for acts or activities of terror;
(b.13) Issuing posters in praise of past suicide bombers;
(b.14) Being involved in the political, social, or religious leadership of an
organization that has a terrorist arm without having any personal
involvement in decision-making processes directly related to acts or
activities of terror.
Such a scale of involvement in terrorism is indeed a scale of involvement in

hostilities of a certain nature. Clearly, it draws morally significant distinctions
not only between direct and indirect involvement but also within the realm of
direct involvement. Under conditions of reasonable intelligence, both the
former and the latter distinctions can be reflected in practical methods of
counterterrorism that are of a desirable moral significance.
Our scale of involvement pertains to an armed conflict against terrorist
organizations. The question arises whether such a scale can be developed and
then applied for other types of armed conflict. It is reasonable to assume that an
appropriate scale of involvement in guerrilla warfare can be developed and
applied in practice. The possibility of developing a morally appropriate scale
for armed forces within the framework of an international armed conflict is not
as clear, and prospects for its practical application do not seem bright.
However, to my mind, we morally owe attempts to develop such a scale to the
combatants, whose human dignity has to be properly protected. To use an old
Hebrew expression, the blood of nobody is redder than the blood of

combatants.
Redder Blood
Several arguments have been used in defense of one of the norms expressed in
the principle of distinction, namely that combatants, in a broad and ramified
sense of the term, are legitimate targets of military activity. Such arguments
can be made within each of the different frameworks of international law for
armed conflict, military ethics, and moral theory. Here, I am interested only
in some morally significant parts of military ethics. I will evaluate the
arguments in favor of the above-mentioned norm only on that level.
One argument has it that there is no practical way of gaining victory in an
international armed conflict that involves distinctions between different types
of men and women in uniform. This is a weak argument. For a long time now,
military forces have been expected to gain victory while observing distinctions
between types of members of armed forces. Relatively simple examples would
be the norms that are expected to regulate military activity with respect to
PoWs, wounded members of an enemy armed force, and its medical and
religious personnel. On many occasions, military forces have gained victory
while observing such norms to a very significant extent. There seems to be no
reason to assume that it would be utterly impractical to draw a distinction
between different categories of units of an armed conflict and their members,
according to the extent to which their military activity facilitates pursuit of
victory. The norms of military necessity or some doctrine of double effect
(cf. O’Donovan 2003; Kasher and Yadlin 2005a: 1920; Evans 2005: 214
215) could then be applied to circumstances that involve people in military
uniform who do not belong to units of first categories in the scale of
facilitating victory.
Another argument portrays an armed conflict as having, at its conceptual
and practical core, collectives rather than individuals (cf. Kutz 2005;
McMahan 2007). Without indulging in a discussion of individual-oriented
and community-oriented moral views (cf. Walzer 1990; Bell 1993), I take it for
granted that no moral view would ignore the individuals that are members of
the armed forces. A collective includes more than individuals, by having
constitutive or regulative rules, institutions, practices, policies, and so on, but
all those additional ingredients of a collective depend on individuals for their
very existence and regular manifestation in practice.
Moreover, if an armed conflict should be portrayed mainly as a conflict
between collectives, in the sense that military activities should be planned,
described, and justified solely in terms of the armed forces and its parts,
disregarding the effects military activities have on individual members of
those forces, then it is not clear why the collectives involved in an armed
conflict should be the armed forces of the states rather than the states
themselves. Such a portrayal of an armed conflict would, of course, be
incompatible with the principle of distinction, since military activities directed
against a collective, while disregarding its effects on the individuals who are
164 A. Kasher
members of that collective, would as such involve no distinction between

combatants and noncombatants.4
The third argument that should be mentioned is the doctrine of forfeiture
(cf. Walzer 1977: ch. 9; Rodin 2003: ch. 4). In a nutshell, by becoming a
combatant, a person has forfeited civil rights to an extent that renders him
liable to be killed by enemy combatants, for no reason beyond his being a
combatant. My objections to the doctrine of forfeiture, also in a nutshell, are
four. Firstly, by becoming a combatant, a person is committed to being an
active participant in activities that involve regular jeopardy to his or her life.
There is, however, a conceptual gap between undertaking jeopardy and
forfeiting some of one’s very basic rights. Secondly, within the framework of a
democratic regime, a combatant has the right to be appropriately protected
by the state, even when he/she is directly involved in hostilities. The state owes
the combatant compelling reason for having sent him/her to a battle zone, for
having sent him/her to participate in accomplishing a certain mission, for
having sent him/her to a battle zone to accomplish a mission while equipped
in a certain way, etc. It is not clear how a doctrine of forfeiture can uphold
such a combination of attitudes: on the one hand, voluntarily undertaking a
liability to be killed by enemy combatants, just because one is a member of an
armed force, and on the other, being always justified in demanding protection
of one’s dignity by one’s own state, even under combat conditions. Why
should one forfeit one’s right as far as the enemy is concerned, but not as far
as one’s own state is concerned? Thirdly, the doctrine of forfeiture does not fit
the position of being a conscript or on reserve duty. If one becomes a
conscript, one does not forfeit any of one’s rights. One’s service as a member
of an armed force means that the extent to which one may entertain certain
liberties has been changed. Restrictions imposed on one’s liberties are not
results of any step of forfeiture. From a conscript’s point of view, the fewer
restrictions imposed on conscripts, the better, and each of them has to be
warranted on grounds of some constitutional principles and major features of
the circumstances. Fourthly, any doctrine of forfeiture faces problems of
slippery slopes. Why should a democratic state tolerate forfeiture that results
in being a member of an armed force, always liable to be killed, while it does
not tolerate forfeiture that results in being a slave, always liable to be
employed?
In conclusion, consider two cases of a conception of ‘redder blood’ being
practically used. According to Walzer (2004: 137; see also Hartle 2002: 147),
‘seriousness of the intention to avoid harming civilians’ is ‘best measured by
the acceptance of risk’ to the combatant. One can see why the acceptance to
risk the combatants of a state manifests the seriousness of its intention to
avoid collateral damage among the civilians of its enemy. It is perhaps even
the most conspicuous manifestation of the intention to minimize collateral
damage. However, there is no reason to assume that the most conspicuous
manifestation is the most effective one. There are many efforts of various
types that have been successfully made in order to minimize collateral
damage, none of which involves risking combatants.
In our above-mentioned work on the military ethics of fighting terrorists

(Kasher and Yadlin 2005a: 1315), we set the following priorities:
(d) Priorities on grounds of duties: Military acts and activities carried out
in discharging the duty of the state to defend its citizens against
terrorist acts or activities, while at the same time protecting human
dignity, should be carried out according to the following priorities,
which reflect the order of duties the state has toward certain groups:
(d.1) Minimum injury to the lives of citizens of the state who are not
combatants during combat;
(d.2) Minimum injury to the lives of other persons (outside the state) who
are not involved in terror, when they are under the effective control of
the state;
(d.3) Minimum injury to the lives of the combatants of the state in the
course of their combat operations;
are not involved in terrorism, when they are not under the effective
control of the state;
are indirectly involved in terrorist acts or activities;
(d.6) Injury as required to the liberties or lives of other persons (outside the
state) who are directly involved in terrorist acts or activities.
All this applies when the presence of persons directly involved in terror acts or
activities within the human environment of other persons not involved in
terror, outside the state, has not been created by the state and is of direct
responsibility of a foreign power (Kasher and Yadlin 2005a: 1315).
These priorities rest on the following conception of state duties (ibid.):
(a) Different types of state duties: Military acts and activities, carried out
in discharging the duty of the state to defend its citizens against
terrorist acts or activities, while at the same time protecting human
dignity, should take into account, to the greatest possible extent,
the distinctions between different types of duties of the state. Here are
duties of the state with respect to different types of persons who are
neither its citizens nor its residents:
(a.1) The duties of the state toward persons who are not involved in acts or
activities of terror and are under the effective control of the state;
(a.2) The duties of the state toward persons who are not involved in acts or
activities of terror and are not under the effective control of the state;
(a.3) The duties of the state toward persons who are indirectly involved in
acts or activities of terror;
(a.4) The duties of the state toward persons who are directly involved in
acts or activities of terror.
Let us imagine a conversation between the state and one of it combatants.

Being sent on a mission that involves risking his life, the combatant asks his
166 A. Kasher
state, actually his commander, why it is justified, on the moral grounds of the
basic principles of democracy and military ethics, to send him on such a
mission. The best answer would, indeed, be a valid argument in terms of
military necessity, required in order to discharge the duty of the state to
defend its citizens against terrorists. If the state answers in terms of a
preference to risk him rather than risking an enemy citizen who is in the close
vicinity of the target, which is a presently dangerous terrorist, then the
combatant is expected to ask, what he is entitled to ask and what he would be
justified in asking: Why does my state prefer an enemy citizen over me, when
it is not my state that put that citizen in the vicinity of the terrorist, but rather
the terrorist himself, who does so regularly and deliberately? I don’t see how
the state can convince him that it discharges its moral duties by thus risking
him.
A final example, also drawn from current experience, is the usage of cluster
bombs. I take it for granted that (a) cluster bombs are effective against areas
in which enemy combatants are located, and that (b) a significant number of
bomblets spread when cluster bombs are used do not explode at once but
often do so when touched. Consider now the following scenario: A village has
been evacuated. None of its civilian inhabitants are still there. Only enemy
combatants stay in the village. Cluster bombs are used against those
combatants, quite effectively. Some of them are killed, some disperse, and
none are able to continue their hostile activities. After the hostilities, villagers
return to their homes. Some villagers come in contact with these bomblets,
which then explode, killing or injuring those who touched them.
Those who call for a ban on cluster bombs, having such a scenario in mind,
tell the belligerent party that uses cluster bombs to use other means instead.
Assuming that those alternative means are less effective, a ban would result in
risking combatants, who might be required to enter the village and fight their
enemies there, or in risking civilians, against whom enemy combatants in the
village continue to be a threat. I don’t see any reason for a state to jeopardize
its own civilians or combatants in order to protect enemy civilians from
bomblets that have not exploded. Indeed, the best ending for this scenario
would be for the state that has effective control over the village to clean the
area of unexploded bomblets before it allows villagers to return to their
homes.
Such examples show, at least to my mind, that the principle of distinction,
which is of great moral significance because of the general attitude it induces
toward civilians, has to be reinterpreted in a way that respects the human
dignity of persons in military uniform in general, as well as combatants, more
than they have been respected on the grounds of the prevalent understanding
and application of the principle of distinction.
Notes
1
One can argue on the grounds of what Rawls calls ‘laws of peoples,’ which are certain principles of public
reason on the level of relationships (1999b: 37). However, one can argue on the grounds of a general
assumption that a normative system is available that is taken by all parties concerned as providing all
those parties with convincing and compelling reasons for action.
2
For the sake of the present discussion, I ignore marginal though interesting exceptions.
3
For a defense of certain elements of our working definition of a terrorist action, see Kasher and Yadlin
(2005a).
4
To be sure, I am not committed to any view that leads to a diminished extent of protection of
noncombatants during an armed conflict. I would like to have noncombatants well protected and some
combatants better protected than they are under the present understanding of international law.
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This article was downloaded by:[2007-2008 National Cheng Kung University]

On: 9 April 2008

Journal of Military Ethics

Online Publication Date: 01 January 2007

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Vol. 6, No. 2, 152167, 2007

The Principle of Distinction

Principle of Distinction: Conceptual Elements

1502-7570 Print/1502-7589 Online/07/020152 16 # 2007 Taylor & Francis

The principle of distinction, in its simplest form, seems to divide all

Under such a description, the principle of distinction rests on two extreme

a. What are the values reflected in the principle of distinction as presented?

Here, too, an extreme position is possible and even prevalent. It is expressed

a. There is an obligation to justify every military activity;

I turn now to a reconsideration of some of these elements.

Justification of Military Activity

ordinary conditions, accept as legitimate though undesirable the end of using

Different Standards of Justification

According to such an approach, the notion of an armed conflict involves

However, when an armed conflict is under consideration, between states or

(b.1) Persons posing an immediate danger (e.g., a bearer of an explosive

(b.6) Persons planning an act or activity of terror, whether its operational

Any person who is involved in acts or activities of terror of types (b.1)(b.9) is

Such a scale of involvement in terrorism is indeed a scale of involvement in

Hebrew expression, the blood of nobody is redder than the blood of

members of that collective, would as such involve no distinction between

In our above-mentioned work on the military ethics of fighting terrorists

Let us imagine a conversation between the state and one of it combatants.

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