The Moral Case for Improved Technology, Training and Intelligence
Dilemmas involving non-combatant immunity stem from the dual moral obligations accruing to warfighters in a just war. A warfighter's right of self-defense and right to protect others from attack sanction his use of force against attackers. Force may not be used against those who are not attackers. Practical exigencies may make fully meeting both obligations—protecting self, comrades and native citizens, and deferring to the rights' of foreign noncombatants—impossible since actions pursuant to the first obligation may involve side-effects abridging the second obligation, or vice versa. The doctrine of double effect allows that otherwise licit actions may be performed when actions without the foreseen, negative side-effects are not possible—which is another way of saying the good and bad effects of the contested action are inseparable—and the good done by the action outweighs the bad. The doctrine allows for the first protective obligation to be fulfilled when it is in certain or possible tension with the second deferential obligation, and the value preserved by the first obligation is greater.
Double effect is often formulated with reference to the unintended nature of the negative side effects, though in the case of collateral damage, this prompts the reasonable question of what difference the agent's subjective intention makes to the maimed or killed civilian. Intention is salient for just war theory because of its practical implications when there are tactical options with varying collateral damage forecasts; it has such practical implications if intention is understood, with Anscombe, to entail foresight and desire. I intend something if I both anticipate, and want it to happen; having anticipated the end of my action, I would not alter my action in any way to change its outcome. That a just warfighter foresees, but does not intend civilian deaths in a particular operation then implies that he would adopt an alternate tactic if so doing would achieve the same tactical end without the civilian casualties. Given such options, the self-consistent, just warfighter presumptively (barring other considerations for now) ought choose the tactic without the likelihood of collateral damage. Assuming the warfighter's actions are deliberate, an action that can be justified by double effect must be the one most consistent with his desire to achieve his military objective without civilian casualties: that is, among tactically efficacious actions, the one incurring the smallest amount of collateral damage. If there was no choice of tactics, then intention is immaterial to double effect, and the only question concerns the action's proportionality. If there was a choice of tactics, and the more damaging option was chosen, the agent's profession of non-intention is unconvincing: he had a choice, and while supposedly desiring the lesser of two evils, chose the greater among them. We can derive a presumptive imperative from this definition of just actions applied from the doctrine of double effect. In situations where one's protective and deferential obligations are in tension, the just action is the tactically effective action with the fewest negative side effects.
What can be said about the range of tactical options? Is it a brute fact of the moral landscape or something to which our just principle can be applied? In any context, moral expectation is limited to what it is possible for an agent to know and to do. We do not fault a soldier for failing to aim away from noncombatants he could not see hiding behind a wall, nor fault a soldier for inadvertently shooting a civilian in a firefight initiated by guerillas in a residential area, nor for using a larger caliber weapon than was proportionately necessary when it was the only weapon available to him. Yet examples like these prompt the question of whether what was possible for the particular agent is all that should have been possible for that agent. We may wonder for instance, if intelligence was available pointing to the guerillas' plans; we want to know if the soldier was adequately armed. Similarly, we do not fault soldiers for defending themselves against car bombs, but feel that there is something wrong when lethal force is used to stop a civilian vehicle before soldiers know who is inside. There is a sense that there must be some other tool for this job, or some more effective way to warn civilians to stay off the roads. Likewise, we feel something morally stupid has occurred when language barriers lead to lethal encounters between warfighters and civilians.
I wish to argue that the set of tactical and technological possibilities open to a force in a general span of time ought not be viewed as a brute fact which permanently forces a compromise in the observation of noncombatants' rights.
Since the degree to which one successfully is able to meet the protective obligation without abridging the deferential one is a matter of practical exigencies alone, there is no reason to accept the current limitations of tactical knowledge and action as a constant in our moral calculus. As a matter of fact, the practical exigencies of equippage, training, and intelligence force us to compromise to a given extent on our deferential obligation to noncombatants in order to fulfill our protective obligation—with smart bombs, contemporary aviators for instance, have to compromise less than their world war Two predeccessors—but there is no moral reason this compromise ought to be where it is. Privileging the protective obligation is basic to just war theory (privileging the deferential obligation over the protective one is basic to pacifism), but balancing the two obligations need not be a zero sum endeavor. Being more discriminating with respect to civilians does not necessarily equal warfighters' being less dutiful in force protection and in fulfilling their legitimate military objectives. To the extent that this trade-off is presently true, follows from present limitations in technology, equippage, training and intelligence. Since the obligation not to use force against non-combatants is always exerting its moral pull—always demanding complete recognition—we ought not treat any particular set of practical exigencies as a brute fact but one which we are obligated to remediate by directing money and time toward better intelligence, the development and deployment of more discriminatory equipment, and the training in their use. A nation's defense establishment should constantly strive to innovate more discriminatory tactics and technology conducive to more discriminatory and proportionate use, and to train warfighters in their exploitation. Once these weapons or intelligence-gathering tools are available, there is a moral case for their use, even if such use comes at a greater cost than would be incurred by less precise weapons or tools. Intelligence assets ought to be directed to learn not only where military targets are, but where they are not: areas where noncombatants reside, and the ways in which the enemy may attempt to draw noncombatants into the line of fire.
To answer the question of the degree of risk it is appropriate to take in respecting noncombatant immunity, I agree with Walzer that warfighters need to take on some risk to protect noncombatants—in effect, making good on their intention not to harm them—set roughly at a point where mission success would not be compromised. It is a part of their distinction as professionals that they use force in a disciplined manner, in an attempt to direct it only at those themselves bearing lethal force. By the same token, a nation ought be willing to accept the greater costs associated with fighting wars with the most discriminatory and proportionate tools and tactics available (with a limit set at a cost consistent with overall success in the war and ability to fight new ones with whatever speed is thought appropriate given current threat levels).
This view also prompts an emendation to the standard criteria for the justification of noncombatant casualties. It is not enough to justify noncombatant deaths incurred during an attack on a legitimate military target by an appeal to the tactical options that happened to be available to commanders at the scene. While the actions of frontline warfighters are to be justified with respect to the tools, training, and intelligence they have been given, the overall provisioning and training of troops, as well as intelligence operations, can be criticized from a moral perspective if such provisioning fails to provide warfighters with as wide a sphere of tactical options as currently possible (for a particular nation or bloc). In order for the killing of noncombatants to be considered licit in a just war, the killing has to be in service of a tactical end valuable enough to (in some way) outweigh the disvalue of the noncombatant deaths, and the deaths have to be unintended (even if foreseen). In this sense, non-combatant deaths can only truly be considered unintended, and therefore, given the other criteria, justifiable by the doctrine of double effect, if consequent to tactics posing the least risk to noncombatants among possible mission-adequate options. In foreseeable tactical situations where noncombatants will be mixed with combatants, or where military targets are secreted in residential areas, noncombatant casualties are not justifiable when their deaths or injuries could have been avoided had warfighters been equipped with different (available) tools. The same applies to noncombatant deaths that occur in foreseeable situations due to insufficient, or inappropriate training.
I'll now try to draw some lessons from recent conflicts, with an eye to possible future engagements with respect to the moral case for improved equipment, training, and intelligence. Morally problematic situations arose last spring in Iraq in situations where guerilla fighters attacked Coalition troops while surrounded by civilians, where lethal force was used to stop civilian vehicles at checkpoints, in the use of cluster bombs, where troops were thrust into policing duties for which they had not been trained, and where they were unable to communicate with Iraqi civilians.
faced guerilla tactics similar to those used in
also include stopping cars at a safe distance at check points. While some
accounts of incidents involving suspicious civilian vehicles indicate troops
firing warning shots and attempting to stop the vehicle with disabling shots to
its engine blocks, this didn't work consistently. As many noted, a frightened
civilian cannot be counted on to distinguish warning shots from other volleys,
nor to perceive where dangerous and safe paths lay. What would be desirable
would be a measure to stop vehicles without kinetic energy, shorting out its
electrical system through high-powered microwaves—there is a current classified
project of this nature that reportedly shows promise. At present, portable
barriers should be more widely utilized, particularly those light enough (i.e.
not necessitating a flatbed and crane like
The high dud rate of bomblets makes the use of cluster bombs in populated areas problematic. As many have noted, the 5-10% of unexploded bomblets function as de facto mines, killing and maiming noncombatants. Would it be feasible for bomblets to have secondary fuses? If so they ought to be utilized when civilians are at risk; if not, conventional cluster bombs ought not be used when civilians are in the proximity. By the same token, smart mines that can be remote detonated should be considered—there the technological problem probably being a design that enabled the mine-laying force to detonate the mines at their choosing, but precluded the enemy's detonating them at their convenience.
The degree to
which non-lethal weapons have been successfully fielded and used is largely due
to the efforts of the Joint Non Lethal Weapons Directorate (JNLWD) in the DOD,
which has coordinated research into NLWs since the mid-90s. The JNLWD is
largely dependent on the Services for R & D and procurement dollars (the
absence of which prevents contractors from taking an interest in R & D);
after initial success adapting extant law enforcement technologies for military
use, the pace of research and development for NLWs and associated tactics has
slowed considerably. The JNLWD needs to be much better funded and given end to
end control over research and procurement; the former at least can perhaps be
accomplished through contracts with DARPA and the national labs. (cf. National
Research Council. An Assessment of Non-Lethal Weapons Science and Technology, (
predict the increasing frequency of urban combat for
complained about problems occasioned by the language gap. Some had handheld
devices that spat out helpful phrases. If those were effective, they should be
widely distributed. Given the length of time that
 The subjective intention to be sure is salient for the assessment of the moral agent—his personal character.
 We need to retain emphasis on discrimination for this claim, because given two tactical options where the expected collateral damage is considered proportional to the tactical end—one with an expected civilian collateral casualty figure of 20 and another of five—proportion alone is an inadequate resource to prompt choosing the tactic with the lesser number. If 20 deaths is proportional to the tactical end, so is five. The lower number is not more proportional, any more than 1/2 is more proportional to 5/10 than 4/8.
 We know tactical possibilities change over time: consider the change in the tonnage of ordnance required by the allies to reduce a target the same size from the air in WWII and in Operation Iraqi Freedom, or the change in communication capabilities, or the ability to conduct operations in the dark.
 Or if such tactics were anticipated by intelligence analysts, along with the low likelihood of the presence of WMDs, these concerns were not adequately relayed or heeded by decision-makers in the Pentagon. Criticism, accordingly, is appropriate to that particular break-down, and toward the personalities involved.