CPT Chris Mayer
Instructor,
Phone: 845-938-3368
Fax: 845-446-2562
E-mail: Christopher.Mayer@usma.edu
Political
and military leaders, knowingly and unknowingly, use the Doctrine of Double
Effect (DDE) to justify military actions
that cause collateral damage.[1] There are, however, critics of the DDE who
claim that it does not provide a morally relevant distinction in many
situations, to include cases involving collateral damage. Much of this criticism is focused on the
abuse of the DDE and its alleged incoherence.
However, it is possible to answer most of this criticism by identifying
the moral principles that serve as the DDE’s foundation and by recognizing the
problems caused by proximate means and the closeness of the intended means of an
act and its foreseen but unintended side effects. In this paper I will attempt to develop a
version of the DDE that is true to its underlying moral principles and avoids the
problems associated with proximate means and closeness. Consequently, I will argue that this version
of the DDE reliably provides an acceptable moral distinction in many cases in
which military action causes collateral damage.[2]
1.
Methodology.
I
will examine various collateral damage cases to determine if the DDE’s judgment
concurs with our intuitions and is consistent with the moral principles that
serve as the DDE’s foundation. This will
make it possible to determine if the DDE provides a morally relevant
distinction for these types of cases. By
relying on intuition to evaluate the DDE’s assessment of particular cases, it
will be possible to make a prima facie determination as to whether the DDE
makes the correct judgment in a given case.
While intuition cannot serve as the only assessment of the DDE’s
judgment, it does provide a good initial evaluation. I will also determine whether the DDE’s
judgment about collateral damage cases is consistent with the moral principles
that serve as the DDE’s foundation.
If it can
be successfully argued that the DDE’s judgments fits with our intuitions and
adheres to its moral principles in many collateral damage cases, it will then be
possible to accept the DDE’s judgment in these types of cases. In cases where the DDE provided distinction
does not provide a morally relevant distinction, I will explain what is
happening and what can be done when faced with these types of cases.[3] However, before an alternate version of the
DDE can be developed and applied to collateral damage cases, it is necessary to
present the standard formulation of the DDE.
2.
The Doctrine of Double Effect.
2.1 The Standard Conception of the
Doctrine of Double Effect.
The
DDE has practical applications in that it provides a set of conditions that can
be applied to certain types of cases to determine if an action is morally
permissible. However, it is important to
recognize that the purpose of the DDE is to ensure that certain moral
principles are adhered to. That is, the
DDE is simply a heuristic method that can be used to determine whether a
particular course of action adheres to a set of moral principles. If an action meets the requirements
established by the DDE’s foundational principles, then the action is morally
permissible. Consequently, if by
applying the DDE to a case we determine that an action is morally permissible,
yet this action actually violates the DDE’s foundational principles, then the
DDE has failed to serve its purpose.
Therefore, in cases where the DDE does not provide clear guidance, it may
be necessary to appeal directly to the foundational principles. Evaluating a case in light of these
principles will allow us to determine whether the DDE has made the correct
judgment and is serving its purpose.
The first moral
principle that serves as the DDE’s foundation is that we should not
intentionally harm innocent people. This
action serves as a constraint on our actions towards other people. It is necessary to specify innocent people because
there are instances, such as self-defense, where it is morally permissible to
intentionally inflict harm. [4] The second principle, which is related to
the first, is that people possess a right to self-defense. That is, people have a right to protect
themselves against those that seek to harm them.[5] The final principle is that a person’s intentional
actions should be able to be characterized as good. People must not aim at evil ends or means,
and the bad that they cause unintentionally must not outweigh the good produced
by their action. Adhering to this
principle does not necessarily limit us to a consequentialist perspective
because we can, as Quinn proposes, assume “that goods of different kinds (for
example, preservation of life and relief from suffering) can be compared and at
least roughly summed up, and that in cases of conflicting rights we can make at
least a rough comparison of the overall good protected by the rights on each
side of the conflict” (Quinn 161). When
determining whether an action can be characterized as good, we can look at the
types of rights it violates or adheres to, and this goes beyond a simple
utilitarian calculation. So, the DDE’s
foundational principles create a duty not to harm innocent people, a right to
self-defense, and a duty to ensure that one’s actions are good.[6] These duties and rights serve as the basis
for the DDE’s guidelines.
The DDE has
traditionally employed four conditions that must be met before an action can be
considered morally permissible. These
four conditions help determine whether an action adheres to or violates the
DDE’s foundational principles. The first
is that “the intended final end must be good”.
The agent’s goal must be good; his final end cannot be bad. Secondly, the “intended means to it (the
final end) must be morally acceptable”. Immoral
means cannot be used to achieve a morally good end. Third, “the foreseen bad upshot must not in
itself be willed (that is, must not be, in some sense, intended)”. If the act has a morally bad side effect,
this side effect must not be intended as a means or an end. Finally, “the good end must be proportionate
to the bad upshot (that is, must be important enough to justify the bad
upshot)” (Quinn 189). The evil brought
about by the morally bad foreseen but unintended side effect should be
proportionately less than, or equal to, the good accomplished by the act.
By
examining the four conditions mentioned above we can see that the DDE, as it
relates to harm, makes the claim that it is sometimes morally permissible to
allow a harm to occur as a foreseen but intended side effect, while it is not
morally permissible to bring about the same harm as either an intended end or
as a means to achieve an intended end.
The DDE places restrictions on what the intended ends and the necessary
means of our actions may be, however, it does permit us to cause evil by our
actions as long as we do not intend the evil as an end or a means. By applying the four traditional conditions
of the DDE to a possible course of action, we can usually determine whether or
not the action is permissible. However, applying
the DDE is often difficult, and it is the problems associated with its
application that I will focus on in the next section.
2.2 Problems Associated with the
DDE and Potential Solutions.
Critics
charge that many potential problems can arise when using the DDE to evaluate
actions involving harm. One such problem
is the confusion as to what actually counts as a means to an end. In certain types of situations it may be
unclear as to whether harm was used to achieve the intended end. We can resolve this problem by closely
examining the means used so that we can identify when harm is simply a more
proximate means by which the intended means are achieved. Harm must not bring about the desired
end. Being able to identify proximate
means will reduce the possibility that the DDE will judge an action to be
permissible when our intuitions, and the principles of the DDE, indicate that
the action is not permissible.
Imagine a
case where Jones steals Smith’s wallet, and Smith fires a gun directly at Jones
with the intended end of getting his wallet back.[7] Smith may claim that he did not need to kill
or harm Jones, because if Jones dropped the wallet Smith would no longer
attempt to shoot him. Therefore, Smith
would claim that his intended means of getting his wallet back was to stop
Jones, or at least force Jones to drop the wallet. And, because his intended end was to get his
wallet back from Jones, and not to intentionally harm Jones as a means or end,
Smith might claim that his actions were morally permissible under the
guidelines established by the DDE. Yet
it is clear that Smith is intending to harm Jones by shooting him. Smith’s actions are not morally permissible
because the proximate means of stopping Jones, or causing him to drop the
wallet, involves killing or seriously harming him. And the means of killing or seriously harming
Jones is shooting him. Smith is stopping
Jones by shooting and harming him, and this makes harm a proximate means. This violates the constraint of not
intentionally harming an innocent person.[8] Therefore, to reduce the problems associated
with proximate means, and to ensure that the DDE provides an acceptable moral
distinction when harmful proximate means may be involved, the means used to
achieve the intended end must be thoroughly examined. When harm is a proximate means, the action is
not morally permissible.
Another
problem associated with the DDE is that of closeness between the intended means
and the foreseen but unintended side effects.
Richard Norman argues, “The boundary between intended actions and
unintended side-effects is not a sharp one” (
When the four
conditions of the DDE do not provide a clear judgment for a particular case due
to proximate means or closeness, it is necessary to appeal to the DDE’s
foundational principles, and the duties and rights produced by these principles. The DDE’s requirement that our intentional
actions should be able to be characterized as good is a perfect duty. Thus, our
intentional actions should always be good.
But, there are situations when the other two principles (the duty not to
harm innocent people and the right to self-defense) conflict making it
impossible to adhere to both. In most
cases the duty not to intentionally harm innocent people has precedence over
the right to self-defense. However,
there are circumstances that would allow an agent to exercise his right to
self-defense, even when this caused him to intentionally harm an innocent
person. That is, the duty not to
intentionally harm innocent people is not absolute, and there is a threshold at
which the right to self-defense takes precedence.
Thresholds
recognize that “if enough good is at stake, then the constraint is no longer in
force, and it is permissible to harm the person” (Kagan 80). Therefore, it may become necessary to harm an
innocent person in order to exercise a right to self-defense and meet the
requirement that intentional actions can be characterized as good. For example, it seems permissible to cut off
a person’s foot when she is caught on a railroad track and a train is coming
towards her. We are intending to save
her life, however, we are also intentionally harming her by cutting off her
foot which seems contrary to the DDE’s guidance. However, a threshold has been crossed and the
good of saving the person, and the value of her life, outweighs the harm caused
by cutting off her foot. We are helping
the person exercise her right to self-defense by intentionally harming
her. Additionally, in certain situations
adhering to the duty not to intentionally harm innocent people makes the right
to self-defense inconceivable and makes it difficult to characterize the
resulting action as good. In these
situations it is permissible for a person to harm innocent people in order to
defend himself.[10] Although we cannot intentionally harm
innocent people as an end in itself, there will be situations where one can
harm innocent people as a means to exercise the right to self-defense.
The concept of a threshold,
as I described above, is often confused with the involvement of a third
party. That is, many think that the
third party involvement is doing the work when in fact what has happened is
that a threshold has been crossed. For
example, in the
In both cases (
2.3
Formulating the DDE for Collateral Damage Cases.
In war, the DDE’s constraint
against intentionally harming innocent people is transformed into a constraint
against intentionally harming noncombatants.[11] However, it is virtually impossible to fight
a modern war without unintentionally harming noncombatants. If military forces were restricted from performing
actions that unintentionally harmed noncombatants, most acts of war would be
considered morally impermissible.
Francisco De Vitoria, a just war theorist, has written, “sometimes it is
right to slay the innocent, even knowingly, as when a fortress is stormed in a
just war, although it is known that there are a number of innocent people in
it” (Christopher 56). Just as in
storming a fortress, it is often permissible in war to unintentionally cause
noncombatant deaths. The very nature of
war makes it likely that noncombatants will be knowingly, but unintentionally,
harmed.
The DDE establishes the
limits of permissible violence in war, and yet it also provides military forces
with flexibility as they fight in war.
The principle that promotes this flexibility is that nations have a
“reasonable right to self defense against unjust aggression”, and it is this
principle that justifies the existence of a threshold (FitzPatrick 10). This principle transforms the individual right
to self-defense into a principle of self-defense applicable to states within
the international arena. It ensures that
nations are able to effectively defend themselves against aggression.
Taking into
consideration the problems discussed in section 2.2, and the adjustments that must
be made for military situations, I will attempt to formulate a version of the
DDE that differentiates moral from immoral actions in war (specifically
collateral damage cases) and promotes the DDE’s foundational principles. The principles underlying this formulation
are: the absolute prohibition against intentionally harming noncombatants as an
end and the prima facie prohibition against intentionally harming noncombatants
as means; the right of nations and individuals to defend themselves against
aggression; and the requirement that actions in war should be able to be
characterized as good.[12]
The first
condition of the reformulated DDE is that the intended end of an action should
not be the intentional harming of a noncombatant. It is always prohibited to intentionally harm
a noncombatant as the end of one’s actions.
Secondly, harm to noncombatants should not serve as the means, or
proximate means, to achieving a good end unless a threshold has been crossed.[13] The presence of a threshold preserves the
rights of self-defense for nations and the individual. It also avoids the indefensible argument of
those who claim that when they shoot through the hostage to kill the terrorist
they did not intend to harm the hostage.
We can now say that the harm to the hostage was the means of killing the
terrorist and is permissible only if a threshold has been crossed.
The third
condition is that the bad foreseen side-effects of an action must not be
intended. If the side-effects are too
close to the means, the only way for the action to be permissible is if the
threshold has been crossed. The final
condition is that the good caused by achieving the intended end should equal or
outweigh the harm caused by the foreseen but unintended side effects. On balance the action should bring about
good, or at least not bring about morally bad effects. For the actions of military forces to be
characterized as good, military forces must pursue victory through the
destruction of military targets while attempting to minimize collateral damage.[14] It is this version of the DDE that I will use
to analyze collateral damage cases.
3.
Applying the DDE to Collateral Damage Cases.
By applying
the revised version of the DDE to collateral damage cases, it is possible to
determine if the DDE makes morally relevant distinctions that fit our moral
intuitions and are true to the
DDE’s foundational
principles. I will begin with collateral
damage cases in which a moral distinction is easily made and then evaluate
cases where making a moral distinction becomes increasingly difficult.
Collateral
damage often occurs when military targets are attacked during war. For example, imagine a situation (Strategic
Bombing) where launching an air attack on a major chemical/biological weapons
factory (that supplies thirty percent of the enemy’s chemical/biological
weapons) would likely cause debris that would destroy three neighboring houses
(killing fifteen noncombatants). The
intended end of the action is the destruction of the chemical/biological
weapons factory; the destruction of the houses and deaths of the noncombatants
are not part of the intended end.
Because the action does not aim at intentionally harming the
noncombatants as an end, it meets the requirements set by the first condition
of the revised DDE. The harm to the
noncombatants is also not a means, or a proximate means, of achieving the
intended end. And, the harm to the
noncombatants is outweighed by the good accomplished by achieving the intended
end. The act can be characterized as
good, and its end is the destruction of a legitimate military target. Thus, the action also meets the requirements
set by the second, third, and fourth condition and is therefore morally
permissible. If destroying the factory
only eliminated a small percentage of an enemy’s chemical/biological weapon
production (say less than five percent), while unintentionally killing ten thousand
noncombatants, it would not meet the proportionality requirements set in the
fourth condition. However, because this
action does meet the proportionality requirements, it is permissible.
Another
unambiguous situation occurred at
There was no sign of the Vietcong battalion and no shot was fired at Charlie Company all day, but they carried on. They burnt down every house. They raped women and girls and then killed them. Pregnant women had their stomachs slashed open and were left to die. There were mass executions. Dozens of people at a time, including old men, women and children, were machine-gunned in a ditch. In four hours nearly 500 villagers were killed (Glover 58).
Because the action intentionally aimed at harming
noncombatants as an end, it is clear that the DDE would not regard the actions
of these soldiers as morally permissible.
Even if it was argued that the killing of noncombatants was a means, it
is clear that this case would not even approach the threshold. There were other methods available for the
soldiers to defend themselves and the nation. Killing 500 noncombatants was not
an act of self-defense; the villagers were not a threat to the soldiers, nor
did their presence in the village make self-defense inconceivable for the
In a case
called Platoon Defense, a platoon defending an area comes under attack by an
enemy unit. Because of the direction
that the enemy is attacking, some of the platoon small arms defensive fire will
likely hit noncombatants located in a town to the front of the platoon
position. The platoon’s intended end is
the defeat of the enemy, with the death of the enemy soldiers as a means to
accomplish this. The foreseen but
unintended side effect is the death of some of the noncombatants in the
town. The difficulty in analyzing this
case is that in order for the soldiers to hit the enemy, they have to aim their
weapons in the direction of the town.
While it is clear that the soldiers in the platoon are not seeking to
harm the noncombatants as ends or means, the means and the foreseen but
unintended side effects are very close.
However, the right of nations to defend themselves against unjust
aggression, and the right of soldiers to self-defense, seems relevant to this
situation. The right to self-defense is
not even conceivable unless the soldiers fire at the enemy soldiers. Firing at the enemy soldiers meets the conditions
of the revised DDE, thus making it permissible for the platoon to defend itself
against the enemy unit. Yet, even though
the action is permissible, the platoon should take actions that reduce the
likelihood of noncombatant deaths. This
will allow the platoon to, as much as possible, adhere to the constraint
against intentionally harming noncombatants.
They are only allowed to do what is minimally required for self-defense.
The
case of Area Bombing involves the attack of an area that contains both
combatants and noncombatants. An enemy
unit retreats into a town, and the entire town is bombed because the precise
location of the enemy soldiers is not known.
The harm to the noncombatants is not aimed at; the intended end is the
destruction of the enemy unit that retreated into the town. However, the harm to the noncombatants could
be viewed as the intended means thus making it difficult to classify the
noncombatant deaths as a foreseen but unintended side effect. By bombing the town, the agent seems to
intend to kill as many people as possible and only hopes that the enemy soldiers
are among the dead. It does not seem
possible to separate the intended end of harming the combatants from the harm
caused to the noncombatants. The town
must be destroyed in order for the enemy unit to be destroyed. Additionally, the threshold is not crossed
because the right to self-defense is not at stake. Therefore, because of the closeness of the
foreseen harm to the intended means, and the fact that the case is not near the
threshold, this action is not permissible.
We do not even need to consider the fourth condition (proportionality)
because the first three conditions are not met.
From this analysis we see that most area bombing cases clearly do not
meet the four conditions of the DDE.
However, there are other cases that are more difficult.
During war
some nations may place noncombatants at strategic military targets to deter the
enemy from destroying these targets. The
opposing military force must decide whether to destroy the target or forego its
destruction because of the presence of the noncombatants being used as human
shields. For instance, if twenty
noncombatants were placed on the roof of the chemical/biological weapons
factory discussed above in Strategic Bombing, a Human Shield case would exist. For the missile to hit the factory it also
must hit the noncombatants; the agent must aim at and harm the noncombatants
(just as the hostage must be aimed at and harmed to kill the terrorist). Applying the DDE in this case is difficult
because the intended means and the foreseen but unintended side effects are
extremely close, and a third agent is involved.
Aiming at the factory appears to be the same as aiming at the
noncombatants and would seem to violate the constraint against intentionally
harming noncombatants. However, the noncombatant
deaths are not needed; it is only necessary to kill the noncombatants because
they are occupying the same space as the factory.
Could the
fact that a third agent placed the noncombatants on the factory make this
action permissible? If third agents put
the noncombatants on the roof of the factory, it might make us more likely to
destroy that factory instead of the one that contained noncombatants who had
simply sought shelter from the rain because in the first case we would hold the
third agent at least partially responsible for the deaths of the
noncombatants. Third agent involvement
slightly lowers the threshold and shifts some of the responsibility for the
deaths, however, it will not make a significant moral difference by
itself. What is more important in both
of these cases is that the right to self-defense is fundamentally at
stake. Therefore, even though we are
intentionally harming noncombatants as a means to destroying the military
target (or at least the unintended consequences are very close to the means), it is morally permissible to bomb the
factory if failure to do so would mean giving up the right to self-defense. A historical example may illustrate this
point.
During
World War II the Germans attempted to transport heavy water on a ferry from
In
Terror Bombing cases a military force attacks the civilian populace to decrease
citizen morale. In one version an agent
claims that terror bombing is permissible under the DDE because he only needs
for the citizens in a city to appear dead, and he is not intending their death
(even though he is bombing the city).
This rationale, however, does not justify the terror bomber’s actions
because it appears that civilians are being intentionally targeted. This type of action is not permissible because
the harm to noncombatants is serving as a proximate means to the means of
making the civilians appear dead. Also,
our right to self-defense is not at stake, as it is in the previous
example. Therefore, in this version it
is clear that the DDE provides an acceptable moral distinction and would determine
that the bombing was not permissible.
In another
version of the case promoted by David Lewis, “the bomber knows that it will be
enough to accomplish his task to explode his bombs over the target city. Strictly speaking all that he intends is for
his bombs to explode over the city. He
does not (or need not) intend any effects on the city itself (or its
population)” (Woodward 218). In this
case it can be said that while the action may aim at lowering the morale of the
civilian population, it is not intentionally seeking to harm the noncombatants
(because the missiles are exploded in the air and are only meant to scare the
noncombatants in the city). The harm to
the noncombatants in the city (there will likely be deaths) can be categorized
as foreseen but unintended. While the
foreseen side effect is close to the intended means, it is not as close as the
first terror bombing example.
Additionally, an appeal can be made to the fourth condition. If it can be demonstrated that the good
achieved outweighs the foreseen harm, then this action may be deemed
permissible by the DDE. However,
classifying this action as morally permissible seems wrong because
noncombatants are being involved in a military action. The bomber “deliberately involves his victims
in something to further his purposes and this involvement, as he foresees, is
harmful to them” (Woodard 219). Because
a military target is not present (as it is in strategic bombing), the action
seems to target noncombatants and cause them harm. Yet, because the bomber isn’t directly aiming
at the noncombatants, it is difficult for the DDE to make a morally relevant
distinction. Therefore, this type of
case is outside of the DDE’s jurisdiction; there seems to be a moral factor
present in this case that the DDE does not recognize. This factor is that the agent is involving
noncombatants in a military action, even though the noncombatants are not
actually targets and the harm is not intended.
Thus, while the DDE has trouble making a determination in this case, we
recognize that it contains a unique factor and that another set of guidelines
would be needed to make a proper distinction.[16]
4.
Potential Criticism.
One
possible criticism of my formulation of the DDE is that the introduction of a
threshold diminishes the role of the DDE in collateral damage cases. However, despite the fact that the threshold alters
how the DDE is applied in certain cases, the standard formulation of the DDE is
still doing most of the work in determining whether or not an action is morally
permissible. The presence of a threshold
seeks to prevent the DDE from judging an act to be permissible, when in fact
this act violates the DDE’s fundamental principles. Thus, introducing a threshold to the DDE, and
understanding the problems of proximate means and closeness, ensures that the
DDE is true to its principles. In difficult
cases, the DDE is still doing the work, however, the threshold appeals directly
to the foundational principles.
Appealing to these principles ensures that the DDE is accomplishing the
purpose that it was intended to accomplish.
It
also might be argued that the use of thresholds seriously weakens the
prohibition against intentionally killing noncombatants. Thresholds could possibly justify too much
and make the constraint against intentionally killing combatants extremely weak. This is a valid criticism, and care must be
taken when using thresholds. However,
thresholds, as I have defined them, will be very high. The constraint against intentionally killing
noncombatants will take priority in most cases, and thresholds will only be
considered in cases where the right to self-defense is at stake or is being fundamentally
violated.
The
use of a threshold recognizes that it is difficult to maintain an absolute
prohibition against any action, including the prohibition against intentionally
harming noncombatants. The DDE recognizes
that the lives of noncombatants are important, but so is the right to
self-defense. People have the duty not
to intentionally harm innocent people, but they also have the right to defend
themselves. In war, military forces exercise
a political community’s right to self-defense, but, in certain cases, this
right to self-defense could be threatened or violated in such a way that it can
no longer be said to exist. It is not only
that the people the military forces are defending may be harmed, but that it no
longer is possible to even talk of defending them; self-defense is
inconceivable and impossible. In many of
these cases the right to self-defense takes priority, but even when this
happens, we should still try to minimize harm to noncombatants and adhere to
our duty not to harm noncombatants as much as possible. It is still required that our actions are
able to be characterized as good. Consequently,
in extreme cases we have two options. We
can completely give up the right to self-defense in favor of the prohibition
against intentionally harming noncombatants.
Or, we can exercise our right to self-defense while still adhering, as
much as possible, to the duty not to intentionally harm noncombatants. Some examples may illustrate when the right
to self-defense is, and is not, at stake.
Imagine that Saddam Hussein has placed
noncombatants (as human shields) at
Another
reason that thresholds do not seriously weaken the constraint against killing
noncombatants is that the DDE with thresholds does not allow combatants to direct
military action exclusively against noncombatants. As I discussed above, military forces should only
seek the destruction of military targets, and their ends should never be harm
to noncombatants. In the Terror Bombing case
we see the distinction that the DDE makes when applied to cases where the
military targets civilians. The DDE either
judges this type of action to be impermissible or, in certain situations, it
cannot make a distinction at all which forces people to rely on their
intuitions or another moral principle.
Therefore, even with thresholds, military forces are still required to
aim at military targets.[17] Thresholds just recognize that aiming at the
military target sometimes entails aiming at noncombatants, so in some cases it
might be permissible for the harm to noncombatants to serve as a means to
destroying legitimate military targets .
The thresholds, as contained in the DDE, will not allow for intentional
harm to noncombatants as an end, as in My Lai or Terror Bombing, but instead
will allow for the destruction of a justifiable military target, as in Human
Shield or the Ferry.
Another potential criticism
is that the closeness of the intended means and foreseen harm, and the problem
associated with proximate means, will still create problems for the DDE. Despite the fact that the DDE cannot make a
distinction that fits with our intuitions and the DDE’s principles in all collateral
damage cases, the fact that it does in many cases is all that is necessary for
the DDE to be useful. There will be cases
where it is impossible to interpret how close the intended means and foreseen
harm actually are, or what is and what is not a proximate means. These cases will be outside the jurisdiction
of the DDE, and it is these types of cases that must be evaluated using another
moral principle or theoretical framework.
5.
Conclusion.
In this
paper I have attempted to demonstrate that the DDE provides an acceptable moral
distinction that fits with our moral intuitions, and its foundational
principles, in many cases that involve collateral damage in war. The DDE with a threshold prohibits
intentional harm to noncombatants as an end, allows intentional harm to
noncombatants as a means only when a threshold has been crossed, and requires
that our actions be able to be characterized as good. In many cases, these requirements allow one
to separate permissible actions from impermissible actions. Additionally, by closely examining actions,
one can reduce the confusion caused by proximate means and closeness of
intended means and foreseen but unintended side effects. While these problems cannot be eliminated,
recognizing that they exist, and taking steps to reduce the confusion caused by
them, will make the DDE distinction more in line with our intuitions. In those cases that are outside the
jurisdiction of the DDE, it is clear that other factors are involved besides
not intentionally harming noncombatants, performing good actions, and the right
to self defense. To evaluate these types
of cases, another framework is required.
Examining
the DDE’s foundational principles, and including a threshold in its
formulation, recognizes that the DDE is simply a heuristic method. Standard versions of the DDE can sometimes
betray the principles in which they were developed to promote, which is a
general problem with heuristic methods.
To avoid the problems associated with “rule worship”, and to ensure that
a heuristic method accomplishes its purpose, it is necessary to examine cases
to ensure that a heuristic method accurately reflects its foundational
principles. Also, it is reasonable to
assume that most moral principles are not absolute, thus allowing, in rare
instances, for the intentional harm to noncombatants to serve as a means of
destroying a military target. This does
not seriously weaken the prohibition against harming noncombatants and ensures
that the DDE accomplishes its purpose.
6.
References.
Christopher,
Paul. The Ethics of War and Peace: An Introduction to Legal and Moral
Issues.
FitzPatrick,
William. “A Puzzle about the Doctrine of
Double Effect”. Philosophy 5334 Reader.
Tech,
Glover,
Jonathan. Humanity:
A Moral History of the Twentieth Century.
Press, 2001.
Kagan,
Shelly. Normative Ethics.
Quinn,
Warren S. “Actions, Intentions, and
Consequences: The Doctrine of Doing and Allowing”. Ethics:
Problems and Principles. Edited by John martin Fischer and Mark
Ravizza.
and Winston, 1992.
Quinn,
Warren S. “Actions, Intentions, and
Consequences: The Doctrine of Double Effect”.
Ethics:
Problems and Principles. Edited by John martin Fischer and Mark
Ravizza.
and Winston, 1992.
Regan,
Richard. Just War: Principles and Cases.
Walzer,
Michael. Just and Unjust Wars: A Moral Argument with Historical Illustrations.
Woodward,
P.A. “The Importance of the
Proportionality Condition to the Doctrine of Double
Effect: A Response to Fischer, Ravizza, and
Copp”. The Doctrine of Double Effect. Edited by P.A. Woodward. Indiana,
NOTES
[1] Collateral damage is usually thought of as harm to nonmilitary targets to include people and property. I will be focusing on harm to people.
[2] By ‘acceptable moral distinction’ I mean that the DDE is able to serve as a principle that, when applied to a case, allows one to determine if an act is morally permissible. That is, it usually able to distinguish morally permissible actions from morally impermissible actions.
[3] It would be great if the DDE could provide an acceptable moral distinction in all cases, but like other moral principles it cannot. It is enough that it is usually able to provide acceptable moral distinctions and that we can recognize when it is not able to do so. The doctrine of doing and allowing, or a focus on rights, will be useful in many of the cases that are out of the DDE’s jurisdiction. I would like to thank Bill Fitzpatrick for his assistance with this point.
[4] From this point forward when I refer to harm I will be referring to serious harm. My definition of harm will not include trivial harm, but will include actions such as killing, serious injury, or torture. Extending the DDE constraint against intentional harm to include trivial harm would make it very difficult to apply the DDE because of the many activities that could be considered harmful.
[5] I will not debate the point of whether a guilty person has a right to self-defense. Hobbes claims that “no man can transferre, or lay down his Right to save himselfe from Death, Wounds and Imprisonment and therefore the promise of not resisting force, in no Covenant transferreth any right, nor is obliging” (Hobbes XIV, 69-70). I am inclined to agree with Hobbes on this point, but this is not important for my paper.
[6] While the DDE may have more than the three foundational principles that I listed, the three principles that I mention seem to capture the DDE’s view concerning harm. I will not offer a thorough defense of these principles because various ethical perspectives support principles of this sort, even if the ethical perspectives do differ on how the principles should be applied, or which has priority.
[7] This example was given by Bill Fitzpatrick during the Fall 2001 Normative Ethics seminar at Virginia Tech.
[8] Jones, of course, is not
truly innocent, however his theft does not make it permissible for Smith to
kill or seriously injure him. Retrieving
one’s stolen wallet does not allow one to inflict serious harm on the thief.
[9] Jonathan Glover presents two tests for evaluating closeness. However, he finds that “the weaker test (‘were the consequences wanted?’) allows too much [while] the stronger version (‘were the deaths so bound up with the act that we cannot say they died by accident?’) allows too little” (Glover 108). The use of thresholds and the flexibility provided by the right of nations to defend themselves against unjust aggression clears up some of the difficulty associated with closeness.
[10] Because of the importance of the constraint against intentionally harming innocent people, thresholds must be placed at high levels. The constraint not to intentionally harm an innocent person must be significantly outweighed by the right to self-defense, and the burden is on the agent to show this.
[11] The distinction between combatants and noncombatants has been recognized throughout history. “The term combatants refers primarily to members of the armed forces, but can include certain political leaders who are engaged in planning and carrying out the war effort as well as civilians who are working on behalf of the military such as those working in munitions factories and radar sites. Shopkeepers, farmers, and other members of what Grotius refers to as the ‘peaceable population’ are not considered combatants” (Christopher 160). Prisoners of war, surrendering soldiers, and those disabled from fighting can also be considered noncombatants.
[12] In war, soldiers maintain the right to self-defense, however, they can now harm and be harmed by other soldiers. That is, combatants are not considered innocent because in war it can be rightfully assumed that enemy combatants intend to harm you. Consequently, because soldiers maintain the right to self-defense and their duty not to intentionally harm innocent people does not apply to enemy combatants, it is morally permissible for a soldier to intentionally harm enemy combatants (unless the enemy combatants give up their combatant status).
[13] Thresholds recognize the importance of not intentionally harming a noncombatant, while also recognizing the importance of the DDE’s other two principles. The threshold allows that, in certain types of cases, it is permissible to harm noncombatants when failure to do so makes the right to self-defense inconceivable. Crossing the threshold does not make it permissible for one to aim at killing noncombatants as an end. Military action should be aimed at military targets and noncombatants should not be viewed as military targets. Therefore, crossing the threshold often makes it permissible to attack a military target, even though the foreseen harm of noncombatants is close to the intended end of the attack, or the harming of the noncombatants is a means to reaching the military target.
[14] Michael Waltzer, in Just and Unjust Wars, further refines the DDE by adding the condition that the agent “aware of the evil involved [from the foreseen but unintended side effects], seeks to minimize it, accepting costs to himself” (Walzer 155). I believe Walzer makes a good point. However, I believe that because the DDE directs us to perform good intentional actions, and to adhere to the duty of not intentionally harming noncombatants, agents will already seek to minimize foreseen but unintended collateral damage. Therefore, this additional constraint is implicit in the factor of promoting the good and does not need to be included in the DDE formulation.
[15]Heavy water is essential to the production of atomic weapons.
[16] Perhaps
a principle such as Quinn’s harmful agency would provide a relevant moral
distinction in this case.
[17] Walzer has proposed that a “supreme emergency” may justify terror bombing, as in the British attack on German cities during World War II (Walzer 252). I will not examine this argument, however I will note that the thresholds that I have included in the DDE only apply to cases where noncombatants are harmed as a means of destroying a legitimate military target.