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The law of unidenti.ed consequences dictates that under no circumstances should innocent bystanders be adversely affected intentionally. At this point, I added a new dimension to my question and asked my class: “suppose in killing the terrorist you have no alternative but to kill his 8-year-old daughter .rst, whom you know he will use as a human shield while carrying out his attack and this is the only opportunity you will get to save hundreds of lives. How would you weigh the one innocent life against hundreds of others?”
Alan Dershowitz, Professor at Harvard Law School and leading criminal lawyer and constitutional scholar, asks the question differently. In the context of the Holocaust of the Second World War, Dershowitz asks: “what if the Jewish Under-ground had credibly believed that by blowing up German Kindergartens in Berlin, they could force the closure of death camps – that the killing of a hundred innocent German children could save the lives of one million innocent Jewish children and adults, would this be a morally permissible choice of evils?”14
It will not be dif.cult to surmise that most people, in considering this dilemma, will agree that the wilful killing of innocent people crosses a certain moral line that should be crossed, if ever, in the most extreme and compelling circumstances.
The same question was asked by Fyodor Dostoyevski in his monumental work The Brothers Karamazov where one brother (Ivan) asks the other (Alyosha) whether the latter would, if it were in his power, build an edi.ce of human destiny that brings happiness to all mankind, but for that he must inevitably and unavoid-ably torture just one tiny creature, a child and build the edi.ce upon the unrequited tears of that child. Alyosha vehemently says he will not agree to such a condition.
In theory and in .ction, Alyosha’s position is both noble and admirable. How-ever, it becomes a legislative nightmare when put into practice. In his book
14Dershowitz (2006, p. 26).
Dershowitz, with his characteristic intellectual dexterity, offers guidance for the development of an appropriate jurisprudence for the international community to follow with regard to pre-emptive action. But .rst, commonsense would dictate that one consider the uncanny pliability of the English language in identifying two types of strikes against terrorism: Preventive strikes; and pre-emptive strikes. The .rst characterises a strike against an aggressor who is likely to attack sometime in the future. A Pre-emptive strike on the other hand responds to circumstances that already show action taken toward launching an attack.
An example for a pre-emptive strike is the six day war launched by Israel against Egypt and Syria in 1967. The Israeli attack took place after Egypt and Syria had already closed the Strait of Tiran, expelled United Nations plenipotentiaries, massed their regular armies on the order and threatened a genocidal war. Israeli attacked pre-emptively, destroying Egyptian and Syrian forces on the ground and went onto to carve out a comprehensive and decisive victory in just six days. In this sense, it is arguable along similar lines whether the United States action in Afghanistan can be termed “preventive or pre-emptive” in removing the threat of further action on the United States after the events of 11 September 2001. The preventive part of United States action would have been to remove the ruling government which was allegedly harbouring those who could cause further harm to the United States.
Be that as it may, the words “preventive” and “pre-emptive” are unique to the English language where they are used in separate contexts while most other languages use the words inter-changeably. The result is that an explicit distinction between the two words could often be tenuous.
Certain circumstances over the past decade has made the world more cautious, leading it to guide its philosophy of mutual trust along a path which is now called “the precautionary approach”. The world would no longer sit and wait, reacting only when a crisis causes massive human suffering and loss of lives. A new doctrine, propounded by a group of scholars at the behest of the United Nations Secretary General Ko. Annan in 2001 has come into being. Called “the responsi-bility to protect”, this doctrine embraces the principle that all member States of the United Nations have a responsibility to protect the lives, liberty and basic human rights of their citizens, and that if they fail or are unable to carry it out, the international community has a responsibility to step in.
　
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