Who, What, When and How to Attack

by Prof. Nicholas Fotion Department of Philosophy
Emory University
Atlanta GA 30322, USA

A paper prepared for presentation to the Joint Services Conference on Professional Ethics XVII Washington, D.C. January 25-26, 1996

 (The views presented herein are entirely those of the author, and do not represent the official position of the JSCOPE Conference or the Department of Defense.)


One question I want to deal with is: Who can you justly shoot at, bomb, blast, beat down, strangle or more generally attempt violence against in war? Many writers, like some of Socrates's students, try to answer this question in large part by giving us lists of those who can be properly shot at, etc. and those who cannot.1 Still others try to answer this question more generally by distinguishing between those who are innocent and those who are not,2 those who are noncombatants and those are not,3 those who pose a threat and those who do not,4 and so on. Whether they try to get the job done by giving us lists or drawing lines, most of-these thinkers are apparently looking for a bright line that will tell us cleanly and with some degree of certainly what to do in war situations.

 I want to argue that there is no bright line that allows us to formulate a clean and simple version of the Principle of Discrimination. We can pretend to make such a line but when we do we are only fooling ourselves or gerrymandering a line that really is not bright at all. A line, such as that between combatants and noncombatants, can indeed be drawn. And in a rough and ready way it will be of some use. It will be better to draw the line than not, since some limitations on violence in war will have thereby been achieved. But if one wants more detailed guidance about who we can attack and who we cannot. something more is needed.

 To understand what this something more might be it is necessary to identify what I will call 'situational characteristics of war.' If you like, you can think of these characteristics as part of the context of war. In the end, even after taking these situational considerations into account, we cannot expect always to know quickly and surely when to attack and when not. Still, to the extent that it is possible to understand these things better, it is because one takes these situational characteristics into account. In the process, we will come to a better understanding not only of the who-to-shoot-at question but also the what-to, when-to- and how-to-shoot-at questions. I will identify four situational characteristics. There may be others.


The first I will call degree of involvement in war. As its name implies, this consideration or contextual factor is a degree concept. Some like infantrymen, tankers and pilots will be so fully involved that they will count as paradigms of those who can be attacked. Not surprisingly their equipment will represent paradigms of material targets in war. But modern war requires a much more substantial supporting cast than did wars of the past. So those responsible for maintaining the equipment of the fighters will also be subject to attack. Their involvement in war is direct enough to make them and their equipment also prime targets in war. Direct enough not to be exempt from attack will be people and equipment that help deliver military equipment and supplies to the front. At this point some will get a little nervous if supplies mean food since food is supposed to nourish the soldier not as a soldier but as a human being. A few others will get nervous when the involvement in war is concerned with manufacturing war equipment, and many more with manufacturing or processing materials such as clothing and food for those at the front. But apart from the involvement becoming more indirect so that we wonder about the justice of attacking certain people and objects, there is also the problem of some who seem directly involved in war but, by tradition, are immune from attack. The prime examples here are military health-care providers and those in charge of the spiritual well being of military personnel. These people traditionally are in uniform, are paid by the military and work and live among the military. So they seem to be fully involved in the war. Indeed, no one denies that their work contributes to the war effort. Good doctors help make many soldiers healthy once again so they can fight once again. And effective chaplains similarly heal the troubled spirits of many so they can in good conscience fight more effectively. It might be argued that there are good reasons for exempting health-care workers and "religious workers from attack. But it is not clear that the characteristic of low degree of involvement in the war effort is one of these good reasons. However useful that characteristic of degrees of involvement is in helping us decide whom to attack and whom not, evidently it alone is not going to do a complete job for us.

 Granting these limitations, just how useful is this characteristic? Actually, quite useful. As mentioned already it clearly establishes a strong presumption for allowing attacks on a variety of people directly involved in the war effort. It even gives us rough guidelines for how to deal with those who produce and handle food. Those working on farms am exempt from attack since their involvement in war is minimal. Normally they feed soldiers to be sure, but their main task is to feed the many not involved in war rather than the few who are. Food processors are similarly exempt, except that now some of these people and the facilities in which they work can become specialized. Some food processing plants produce baby food, on the one side, while others produce rations for the military, on the other. The former of course should be exempt from attack but' not the latter. Nor should those in charge of delivering food to the front lines be exempt. Food may indeed be necessary for soldiers qua human beings (or more properly speaking qua animals) but, as it has been said by many, an army travels on its stomach. Food is the soldier's fuel. It makes about as much sense to permit attacks on food supplies and deliveries to the military as it does to attack fuel supplies to trucks, tanks, military aircraft and naval vessels. The links between the military and those who produce military equipment and the various materials needed to produce that equipment is also direct enough to allow for attacks here as well. The same can be said for those civilian leaders who are in charge of the military. If their involvement is such that they spend a major portion of their time working in support of the war effort, they should be seen as out-of-uniform members of the military. They too can be legitimately targeted.

 The second situational consideration moves attention away from the targeted to the targeting nation or organization in war. It can be called military capability. All nations and organizations at war possess capabilities that contribute toward placing some minimal moral restrictions on them as to how they conduct war. But modem technology gives military organizations certain capabilities to rise above the minimal level by putting in their hands point weapons not available a generation ago. These smart munitions make fighting a morally cleaner war possible by, for example, making it possible for an attacker to destroy a bridge without also destroying the villages on either side of it. One implication of this situational consideration is that we cannot insist that the two sides in a war fight exactly by the same just war rules. A low tech nation will inevitably find itself causing more collateral damage than its high tech enemy. Again this is not to excuse this side in the war if it engages in completely wanton military activity. But so long as it is engaged in such a way as to fight roughly in accord with the traditional Principles of Proportionality and Discrimination, it cannot be expected to fight by the same high standards as can its high tech enemy. That nation, in contrast, operating under the principle that ought implies can, and generally under the same traditional just war principles, will not be excused if it can attack bridges and other high- population density targets with smart weapons but chooses instead to do so with dumb ones.

 A third situational consideration focuses attention once again on the targeted side in a war. For lack of a better name I will call this consideration enemy complicity. There are at least two ways that an enemy can be complicitous. One is by fighting dirty as it might if it indiscriminately attacked civilian targets, used chemical and other illegal weapons or if it killed prisoners of war. Enemy behavior in such settings opens up the possibility of retaliation as an acceptable response. Now I am not approving of such a response carte blanche. However, I am suggesting the not very original thought that most of the blame for certain forms of retaliatory response falls on the head of those who originally authored the dirty fighting and not on the retaliator. This is especially so in situations where the enemy's dirty fighting is persistent and, further, where it helps the enemy gain significant military advantage.

 The second way an enemy can be complicitious is by placing people and objects that the other side might not want to harm in harm's way. They might do this by placing SAMs on top of school or religious buildings, using hostages as shields or simply by forcing a fight up against a high density population center. The idea of course is to take advantage militarily and politically of the other side's desire to fight a clean war. Given the situation it is placed in, the side wishing to fight a clean war might hesitate before attacking or might not attack at all. And if it does attack, it can be accused of killing innocent civilians and destroying schools hospitals and other such strictly nonmilitary facilities. It could thereby find itself in a compromised situation with respect to the propaganda war.

 As with retaliation, attacks on these schools and religious buildings might not be in order. The proper thing to do might be to suffer the immediate but minor negative military consequences of trying to fight a moral war. This could happen, for example, if the complicitous nation placed relatively ineffective anti-aircraft weapons on top of cluster of school buildings. However, it is not difficult to imagine that the military assets on top of schools, religious buildings, historical sites and hospitals are extremely valuable. It is also not difficult to imagine that attacks on these facilities would cause serious and unwanted casualties and damage - no matter how smart the weapons used. In such a situation, an attack might, nevertheless, still be in order if, for example, the military assets in question were missiles that have been causing grievous casualties to the civilian population of the victim nation. And, again, as with retaliation, the blame would devolve primarily to the complicitous not the attacking nation.

 The fourth situational consideration I will call the seriousness of war. It is the most difficult to talk about and perhaps also the most difficult to apply properly in actual war situations. To begin to understand this fourth consideration it is useful to remind ourselves of Michael Walzer's concept of a supreme emergency.5 Actually the concept originates with Winston Churchill. 6 But in any case, for Walzer a nation is in such an emergency when facing an enemy who threatens the existence of its social fabric. Being in a supreme emergency is not just being close to losing a war -- even one where loss means occupation. Rather, it is being close to losing a war to an "evil" nation that will, if and when it wins, practice genocide or force the loser to abandon its sense of cultural identity completely. Walzer's paradigm case of a supreme emergency is Great Britain right after the fall of France in World War II. At that time, the British were fighting the evil of Nazism with an army that had left most of its heavy equipment on the Continent and was thus toothless.7 Walzers suggestion is that in facing such a supreme emergency and having only Bomber Command as a weapon that could effectively harm the Germans, it was permissible morally for the British to attack German cities. Indeed, given the technology available to the British, they had no choice in the matter. Their Lancaster and other heavy bombers could operate only at night if they were to keep their losses to an acceptable level. But if they operated at night, the only targets they could hit with some regularity were large cities. 8 So the only choice they had in this supreme emergency is to do nothing offensively and wait for the invasion, or attack German cities. Walzer's suggestion is that the British should not be blamed for not just keeping its Lancasters idle in their hangers while waiting for the invasion.

 Other supreme emergencies can be recalled or imagined. In the previous century, Sitting Bull, Crazy Horse, Geronimo and their respective peoples faced a supreme emergency in dealing with the invasion of the White People and the US Army. And presumably Israel could face such an emergency if in the future all the nations about her decided to engage in a war of elimination.

 Situations that constitute supreme emergencies then, count as one end of the dimension of seriousness of war. When a war becomes supremely serious many of the usual rules of war are evidently canceled or suspended for the duration of emergency --- not necessarily for the duration of the war itself. At the other end of the dimension are wars that literally are not very serious. Of course in some sense all wars are serious. They certainly fall in that category for those who die or are injured. But the seriousness concept as used here is a national or group, not a personal, concept.9 The question to be asked then is; How seriously threatening is this war to our national integrity? A war might be in the nation's interest without ever being seriously threatening to its very existence. Certainly that was the case with the United States, France, Great Britain and other Coalition nations in the Gulf War of 1990. The Iraqis did seriously threaten the economic status of these and many other nations. The Iraqi invasion also put the rights of many Kuwaitis at risk. But Iraqi actions and the subsequent war were not threatening the cultural integrity of the Coalition nations. Nor were these events threatening to them militarily. Even if it was not obvious at the beginning that the Iraqis were seriously overmatched, that fact became obvious once the bombing started.10 Given, then, the non-threatening nature of that war, the suggestion is that the Coalition should be expected to fight an even cleaner war than it might otherwise. Thus, although those involved in manufacturing munitions might normally be thought of as legitimate targets in war, they should be exempt from attack if their products have little or no chance of being delivered to the front before the war's end. Similarly, other strategic attacks might be forsworn because the long term effects of these attacks would have no bearing on a short war. According to this line of thinking, the bombing attacks on German cities after the Battle of the Bulge should have ceased since, by then, Germany was overmatched. Again, in the same vein, a nation should abstain from retaliating when dealing with an overmatched enemy that uses chemical and other illegal weapons. The overmatching nation has, presumably, more than enough legitimate weaponry to punish the enemy for its transgressions.

 What we have, then, in the situational consideration I am calling the seriousness of war is a dimension that at the one extreme allows for a cancellation of the normal rules of just war so that hardly anyone is immune to attack and yet at the other demands that military forces go to extraordinary lengths and exhibit great patience in broadening immunity. At this latter extreme, a nation will go out of its way not to harm anyone or thing not involved directly in the war. In between, I am suggesting, will be a very broad spectrum of situations where the normal rules of war will apply. That is, for most wars (i.e., those that are fairly serious, where the two sides are roughly evenly matched and where the war will likely last for a lengthy period of time) the rules of war guided by the first situational consideration (i.e., degrees of involvement) will apply.



Having at least in outline form identified and characterized four situational considerations for helping nations at war determine who, what, when and how to attack, I will next make three comments about these considerations. These comments are aimed at explaining in fairly general terms how these considerations play against one another and why, even after these considerations have been taken into account, there are no quick fixes to the who, what, when and how questions asked at the beginning of this paper.

 First, it should be clear that degree of involvement in war is the primary situational consideration of the four. It sets the stage for the others. We must have at least a rough sense of who (and what) is involved in the war before we can modify that sense in terms of our military ability by asking the question "who, given our new capabilities, are now exempt from attack but were not before?" Similarly we will ask against the background of involvement "Are these people no longer exempt because they are complicitious given what they have just done?" The same point can be made about the seriousness of war consideration. We will ask "Do the old rules (established in large part by the involvement consideration) no longer apply?" So the first thing to settle when asking the overall question "Who should we not attack?" is "what degree of involvement in the war do these people have?" The other three situational considerations will also need to be dealt with, but none seems to have a priority status over the other. The situation itself will likely determine which of the three needs to be given the greatest attention.

 Second, it should be understood that the four situational considerations discussed thus far by no means cover all issues as they pertain to justice in the war. They focus mainly on giving an account of the Principle of Discrimination and therefore do not speak to the Principle of Proportionality except indirectly. That latter principle tells us to choose the option that gives the best balance of benefit over harm. Included in the options to be considered is not doing anything at all. Thus a commander might consider not only the option of a frontal assault as against an end run; but also that of not attacking at all.

 Making these kinds of proportionality calculations are almost embarrassingly difficult. The vagueness of war is such that the principle seems to have no real application at all. But that conclusion exaggerates. Gross violations of the principle can be identified both retrospectively and prospectively as for example, in World War I. The military gain as against the losses incurred with many assaults on the Western front between 1914 through even the middle of 1918 were such that the Principle of Proportionality was certainly violated.11 If this is so, and if as I am suggesting the principle has application only in such extreme situations, then it would be more appropriate to call it the Principle of Disproportionality - that is, a principle that merely condemns military actions where the harm caused will be or is grossly greater than the good produced.

 Be that as it may, for our purposes, a more important problem with the Principle of Disproportionality (or Proportionality) is how it relates to the Principle of Discrimination. The two are usually set side-by-side like teammates -- each being sent in when the coach judges it can do the most good for the team. But when is it most appropriate to call upon the one and then the other principle? Here is one answer. The Principle of Discrimination should be called upon mainly when we are puzzled about who and/or what should we aim our weapons at. In contrast, the Principle of Proportionality should be called upon when that problem has already been settled. Let us say that we know there are lots of enemy troops out there and we know also that there are not too many of those whom we want to avoid shooting at in our line of fire. It is in such relatively pure military dramas where we can most safely apply the Principle of Disproportionality. We calculate as best we can whether we should adopt Plan A, B or C. The one we should avoid is A since it clearly multiplies military casualties given the limited good to be achieved by our military action. But both B and C do not violate the principle since, although God knows that C is the least costly option, we neither could have known this when we planned our military action nor even come to know this retrospectively with any degree of certainty.

 This account of the relationship between the Principles of Discrimination and Disproportionality is only partly satisfactory. It does in fact explain how many just war thinkers employ these two principles. Further, it explains how many thinkers cite this principle when the question is "Which is militarily the most costly way to take this target?" but also when the question is "Which weapons should we not use? and even "Should we torture, kill, etc. these prison ers?" In general, the Principle of Disproportionality tells us that using certain weapons such as glass filled shells and torturing prisoners are indeed disproportional and thus wrong. But where this account fails is that the Principle of Disproportionality also has applications when dealing with those we normally do not want to target. The principle was employed in World War II, for example, in the decision to use nuclear weapons on Japan.12 It could be argued that this represents a misapplication of this principle since the Principle of Discrimination has priority over the Disproportionality Principle. That is, it may be that the Principle of Discrimination should be interpreted as giving certain people (and things) rights that should not be violated by a principle such as disproportionality which, strictly speaking, is utilitarian in nature. Utility, the argument is, should be appealed to only within the framework of rights, and not in such a way as to deprive people of their rights.

 There is something right and wrong about this analysis. To see why, it is important to make a distinction made famous by R. M. Hare in his Moral Thinking.13 In doing so I move to the third point I wish to make about the four situational considerations discussed in this article, and away from that second that these considerations tell us only part of the story about justice in the war. Hare argued that an old distinction between what he called critical and intuitive thinking has not been fully appreciated. This distinction amounts to two levels of thinking about ethics. The intuitive level, what I like to call the noncritical level, is when we operate with accepted rules, principles and virtue claims. It is on this level when we make claims against those who take other people's money primarily by thinking about the facts of the case. Did Sam take Rufus's piggy bank money without getting permission from Rufus? If he did, we condemn Sam because of the facts and because he violated an accepted principle that things like that should not be done. Hare argues that most of our moral thinkingtakes place on this intuitive or noncritical level.

 However, we need to rise, he said, to the critical level occasionally. That level is needed because our accepted rules, principles and virtue claims some times come into conflict. To be sure, some of the more recurring conflicts can be handled on the noncritical level. Rules, principles and virtue claims can, in some situations, be modified so they can include in them mention of certain exceptions. We say for example 'Don't kill except in self defense.' But there is a limit to how many exceptions we can attach to these general moral claims.14 Besides, we can't always anticipate the kinds of problems we will face. Some may just be ones we have never faced before.

 So on certain occasions we need to rethink what it is we are supposed to do in such a way that the accepted rules, principles and virtue claims are put into question. In war, this sort of rethinking was, or at least should have been, done when Harry Truman faced the problem of whether to use nuclear weapons.15 It may be that he and his aids thought through the whole issue of dropping the bomb in the wrong way. I do not wish at this moment to enter into that discussion. But it is clear that the decision he had to make was new enough, and full enough of conflict, so that he could not simply decide what to do by reciting one or the other of the moral rules that normally guide a nation's behavior in war. Presumably Churchill faced similar difficult decisions early in the war when he had to decide whether and how to use his Lancaster bombers.

 Now how does this discussion of Hare's two levels of thinking help us understand the problem of the relationship between the Principles of Discrimination (and its four situational considerations) and Disproportionality? This way. Both of those principles can and should be employed on the noncritical level in the vast majority of situations that military commanders and other military personnel find themselves in. In these ordinary situations the Principle of Discrimination (applied primarily in accordance with our four situational considerations) will take precedence over the Principle of Disproportionality. On the noncritical level the latter principle will be applied to situations where the calculations concern military personnel primarily -- where there are few if any 'civilian" strays around. However, even in those situations where the Principle of Discrimination is invoked appropriately, it may still be appropriate to also invoke the Principle of Disproportionality. In other words, if we find ourselves trying hard not to do violence to a group of civilians" we will avoid those options that disproportionately do the most damage to them and choose one, perhaps of several, that seems not to.

 So on the noncritical level both principles may have application even though the Principle of Discrimination will take precedence. However, on the critical level this principle will have no such status. It will not because, on that level, one may very well be questioning that principle. The Principle of Disproportionality, or if you will of Proportionality, can also be questioned. But it is interesting to note that often it is not questioned since it is a favored principle used on the critical level as the instrument for assessing, modifying and creating principles rules and virtue claims - and for deciding what to do in new and/or very difficult moral situations. Consider the following example.

 On May 13,1995 a reporter conducted an interview on Public Radio in the US with an Israeli official about the claim that the Israeli government was torturing Palestinian prisoners who were suspected of being engaged in terrorist activities. Now whether these suspects should be considered military or quasi military personnel or "civilians" is not itself an easy question to answer. Either way it appeared that the Israelis were violating the noncritical level Principles of Discrimination or Disproportionality or both. One normally does not do such things and, at the same time claim to be acting in accord with just war theory. But the Israeli official was claiming just that. In effect, his critical level argument was that more good than bad gets done by the "not overly enthusiastic" torture the Israel is were engaging in. If there is good reason to suppose that the alleged terrorist has information the Israeli government can use to prevent another bloody terrorist act, then the torture is justified. The situation he claimed is in fact often serious and desperate enough to justify such seemingly immoral activities. I don't mean here to approve or disapprove of this particular example of critical thinking. I use it only to suggest that this (dis)proportionality or utilitarian way of thinking on the critical level is not unheard of. It is a way, and I am suggesting one legitimate way, of making decisions about who to shoot at, assault, etc. This way of thinking says that in certain very special (critical) circumstances (like Walzer's supreme -emergency), we may be permitted to do acts that normally would be considered immoral including the targeting of otherwise "innocent" individuals.



What I have argued in this paper is that there are no absolute, or even near absolute, rules, principles or virtue claims when dealing with the who, what, when and how questions of war. Instead, there are situational considerations that need to be taken into account in deciding what to do. When they are accounted for, we see that decisions about the who, what, when and how questions are not always so easy to make. Although situational considerations certainly play roles in medical, business and other practical ethics settings, I would suggest that their roles are more important in military settings. Why this might be so is not difficult to fathom. War is one big exception within morality, that is, war regularly permits a wide variety of activities that normally would not be permitted morally. But beyond that, war regularly throws us into a variety of situations where it is tempting to make more exceptions. It does this because the situations of war are morally more conflicting; and they are more conflicting in large part because war is the only major human activity that systematically permits attacks on other human beings. All this implies that those in the military will have a greater need to involve themselves in critical thinking than those in the other major professions. This does not mean that noncritical thinking has no place in military settings. No doubt most of military activity can be guided by rules, principles and virtue claims that can achieve noncritical status as part of what we know as just war theory. So a lot of what goes on in the moral life of both military leaders and their followers will have the status of "This is how we -- normally -- expect people to behave and how to live." However, because war creates many moral conflicts, some members of the military establishment will need to engage in critical thinking where cut-and-dried answers are not available and where thus the possibility exists that many exceptions to the traditional just war rules will be made. Of course critical thinking may not take place because the military and political establishments discourage such thinking. But there is no avoiding the conclusion that in war the need for engaging in the difficult and disturbing process of critical thinking is unavoidably there staring us in the face.



1. Ford, John C. "The Morality of Obliteration Bombing," in War and Morality edited by Richard A Wasserstrom, Wadsworth Publishing Company Inc. Belmont, CA, 1970, pp. 121-2.

 2. U.S. Catholic Bishops, "The Just War and Non-Violence Positions," in War Morality and the Military Profession second edition, edited by Malham M Wakin, Westview Press, Boulder, CO and London, p.250.

 3. Christopher, Paul, The Ethics of War and Peace, Prentice Hall, Englewood Cliffs, NJ, 1994, pp.169-172.

 4. Cohen, Sheldon M., Arms and Judgment: Law. Morality and the Conduct of War in the Twentieth Century, Westview Press, Boulder CO., 1989, p. 26.

 5. Walzer, Michael, Just and Unjust Wars, Basic Books Inc. New York, 1977, pp. 251-5. See also Walzers "Emergency Ethics" The Joseph A. Reich, Sr. Distinguished Lecture on War, Morality, and the Military Profession, No. One, delivered at the United States Air Force Academy, Colorado on November 21, 1988.

 6. Churchill, Winston The Gathering Storm, Bantam Books, New York, 1961, p. 488

 7. Weinberg, Gerard L. A World at Arms: A Global History of World War II, Cambridge University Press, 1994, pp. 130-1.

 8. Ibid., pp. 577-8.

 9. Walzer, op. cit., "Emergency Ethics," pp. 12-15.

 10. Dunnigan, James F and Bay, Austin, From Shield to Storm, William Morrow and Company Inc., New York, 1992, pp. 227-31.

 11. Taylor, A.J.P. A History of the First World War, Berkley Publishing Corporation, New York, 1963, p. 78.

 12. Makhijani, Arjun, "'Always' the Target?" The Bulletin of the Atomic Scientists, May/June 1995, pp. 23-7.

 13. Hare, R.M., Moral Thinking, Clarendon Press, Oxford, 1981. See especially Chapters 1-3

 14. Ibid., p. 33..

 15. Makhijani, op.cit., p. 26.