Article in sais review · January 005 doi: 10. 1353/sais. 2005. 0011 citations 49 reads 3,483 authors

Proviso: All this applies when the presence of persons directly involved
in terror acts or activities within the 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.
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Some principle of distinction plays a major role in the jus in bello com-
ponent of every major variant of Just War Doctrine. Usually, such a prin-
ciple introduces a crude distinction between combatants and non-combat-
ants. Its ramifications correct some ascriptions of persons to either of the
two categories. The moral ideal is clear, but the distinction itself remains
crude and morally problematic.
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Principle B.2 is proposed as a practical
articulation of that moral ideal for the case of military activity against terror.
Part (a) of the proposed Principle of Distinction introduces a dissimi-
larity between the different duties that a democratic state bears toward per-
sons who reside in areas that are outside the state. Unlike common prin-
ciples of distinction, part (a) does not draw a distinction between persons
of different types but rather between “packages” of duties that the state has
with respect to persons, according to certain relationships that hold be-
tween the state and them.
Part (b) of the principle introduced several distinctions. First, it draws
a sharp distinction between persons who are directly involved in an act or
activity of terror and those who are only indirectly involved. Second, a scale
of direct involvement in terror is introduced. The location a person holds
on the scale of direct involvement is significant when acts or activities are
planned or performed against his or her terrorist involvement.
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Parts (a) and (b) of the principle introduce norms, since they require
sensitivity to the nature of the relevant package of duties of the state, as
well as to the extent to which a person is involved in terror and to the lo-
cation of a person on the scale of direct involvement in terror.
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