The second problem that announcing a global war against terrorism creates is one of proportionality...

We must ask whether a war against terrorism is a proportionate response to the 11 September attacks. In other words, will the expected good produced by the war outweigh the probable evil caused by it?45 The answer to this question is linked to our answer to the question of whether all terrorism provides cause for justified war. If our answer is in the affirmative, waging an endless war against terrorism may be a proportionate response. If, however, we believe that we can only answer the first question by reference to specific groups and campaigns, then a war against terrorism cannot be proportionate.
Ascertaining whether terrorism provides just cause for war is problematic because it is an essentially contested concept. The term is most often used as a political label to de-legitimise one’s opponents. Israel labels Palestinians who bomb civilian targets as ‘terrorists’, yet refuses to use this label for the Zionist revolution-aries who in July 1946 blew up the King David Hotel in Jerusalem, killing 91
people. Unsurprisingly, because of the politicised nature of the term ‘terrorism’, there are dozens of definitions of what it is. For our purposes, it is worth noting four elements that are present in most definitions:
(1)
Terrorism is politically motivated violence.46
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INTERNATIONAL RELATIONS 19(3)
(2)
It is conducted by non-state actors.47
(3)
It intentionally targets non-combatants.48
(4)
It achieves its aims by creating fear within societies.49
We need to ascertain which of these elements are unjust and identify them in the actions of our adversaries if we are to wage a justified war against terror.
The first element, that it be politically motivated violence, serves to distinguish terrorism from random criminal violence. Violence may be justified either by recourse to the just political causes briefly listed earlier or by the fact that it is judicially sanctioned by an authority that holds jurisdiction over those that violence is wielded against. Being politically motivated violence therefore contributes to the legitimacy of terrorism, suggesting that we may only respond with war when our rights or those of our friends are infringed. The most crucial question, and one that dominated Just War thinking in the Middle Ages, however, is the question of who has the authority to use violence for political purposes.50
The second element of terrorism, that it is conducted by non-state actors, partially challenges its justness. From Augustine to the development of positive international law the question of who had the right to wage war was the most significant question that theologians and jurists faced. Today, there is a widespread presumption that the sovereign state is the only authority capable of authorising legitimate political violence. The fact that terrorism is waged by non-state actors therefore renders it unjust, the argument goes. However, political violence initiated by non-state actors is justifiable in two cases. First, the liberal idea that sovereignty is bestowed by the will of the people means that a people must have the right to overthrow an oppressive government.51 Decolonisation helped make positive international law ambivalent on the question of whether peoples had a right to revolt against oppressive or foreign rulers.52 In recent years, the powers currently leading the war on terrorism have repeatedly used this liberal argument to justify military intervention in Haiti, Kosovo and elsewhere. Second, it is legitimate for non-state actors to use force when the sovereign has either dissolved (Somalia) or been unjustly overrun by a foreign power (wartime France). In the former case, there is no authority with the jurisdiction to raise public war. As a result, the authority to wage war may be devolved to people who are able to command the loyalty of significant parts of the community. In the latter case, an individual’s inherent right to self-defence extends to the formation of resistance movements.
It is the third element of terrorism that renders it manifestly unjust: the intentional targeting of non-combatants.53 The principle of discrimination is one of the most steadfast of all Just War principles and is expressed clearly in contemporary international law in the Geneva Conventions. It holds, quite simply, that noncombatants are immune from direct attack. The first attempts to define groups of people who were to be immune during war came in the thirteenth century under Pope Gregory IX. Then, people were granted immunity if the social function they fulfilled was essential for the life of the community (peasants who worked on the land) or if they held divine office (churchmen).54 By Vitoria’s time, that pro-
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IS THE WAR ON TERROR JUST?
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scription was extended to all non-combatants.55 Any act of war that either directly aimed to kill non-combatants or used non-combatants as a means to an end was unjust. It is not necessary to labour this point. Suffice it to say that non-combatant immunity is the foundational principle of the Just War tradition and is also clearly enshrined in positive international law (the 1977 Geneva Protocol).