Some Comments on Intent

Dr. Joy Gordon, Fairfield University


One of the central issues in determining whether war crimes have been committed is the question of intent.  The notion of intent found in Just War theory draws heavily on the Doctrine of Double Effect (DDE), as formulated by Aquinas.  Under DDE, the actor can essentially fragment his or her intent, such that consequences of an act can be foreseeable (or actually foreseen), but at the same time be unintended.  This is more or less the philosophical grounding of the notion of collateral damage.  The DDE view of intent stands in sharp contrast to the notion of intent found in US domestic civil and criminal law, which places emphasis on the natural and foreseeable consequences of one’s voluntary acts.  This distinction is significant in the context of the sanctions imposed on Iraq, given the magnitude of the humanitarian consequences there.  The DoD memorandum describes in great detail the anticipated degradation of the Iraqi water system, and the measures to be taken that will accomplish that degradation.  The degradation of the Iraqi water system (as opposed to, say, a water system for a military base) would seem to be a measure that is inconsistent with the principle of discrimination.  If so, does the DoD memorandum provide evidence of the requisite intent under the Geneva Conventions, or under other applicable treaties concerning human rights or the conduct of war?