Applying Double Effect in Armed Conflicts: a Crisis of Legitimacy

• Citation: Vol. 27 No. 2
• Publication year: 2013
• topic: Criminal Law,Military Law

Applying Double Effect in Armed Conflicts: A Crisis of Legitimacy

Bradley Gershel

APPLYING DOUBLE EFFECT IN ARMED CONFLICTS: A CRISIS OF LEGITIMACY

Bradley Gershef^*

Introduction

Assessing morality in armed conflicts raises a host of issues, not least of which is accounting for the loss of innocent life. For one, normative ethics presumes an absolute deontological proscription against harming the innocent. Yet, both just-war theory and post-war lex scripta affirm the doctrine of military necessity, which permits the loss of innocent life that is "incidentally unavoidable by the armed conflicts of the war."¹ This qualification is informed by the doctrine of double effect ("DDE"), a product of Catholic theology that serves to legitimize an attack causing "incidental" or "unintended" civilian causalities, provided certain conditions are met.

This Article presents an indictment of the DDE as praxis in positive law. Specifically, it challenges whether the DDE as a legal rule is sufficient to legitimize the loss of innocent life, given the didactic presumptions upon which the doctrine rests, its historical development, and the environment within which it is now applied. Thus, this Article will proceed as follows: First, it will briefly discuss the DDE's development as a principle of natural law. Second, it will discuss the principle's positive development in the law of armed conflict ("LOAC"). Third, it will present a number of significant critiques and responses to the application of the DDE as both a means of moral accountability and its use in armed conflicts. Fourth, it will present the arguments against the DDE as a means of moral assessment of civilian casualties.

[Page 742]

I. The DDE as Natural Law

Pieces of Thomas Aquinas's writings on the topic of self-defense are often said to have laid the groundwork for the DDE.² For one, "[n]othing hinders one act from having two effects, only one of which is intended, while the other is beside the intention."³ For Aquinas, this distinction bares moral significance, as "moral acts take their species according to what is intended."⁴ Germain Grisez expounds upon this distinction: Intention and foresight are distinguished according to those effects which serve to guide and shape behavior—intentional effects are those that do influence our behavior, while merely foreseen effects do not.⁵ Thus, when a person ("agent") confronts an assailant whom he kills in self-defense, the assailant's death is legitimate, provided the agent acts with the intention to save his own life, and the death was merely foreseen as a side effect of his otherwise good act.⁶

Aquinas's didactic rests on two critical presumptions. First, Aquinas presents the agent's inclination towards self-preservation to be a natural one; thus, an act that results as a manifestation of the intention is permissible.⁷ Second, the agent must not intend to kill his assailant in order to defend himself, as "it is unlawful to take a man's life, except for the public authority acting for the common good."⁸

These writings were used by Catholic theologians who, by the seventeenth century, fashioned a more general concept of casuistry.⁹ In short, an agent's act which has two effects, one "good" and the other "bad," is morally permissible if:

(1) The act itself is good or neutral;
(2) the agent intends the good effect and does not intend the bad effect;
(3) the evil effect is not the means to the good effect; and

[Page 743]

(4) the act's intended good effect is sufficiently good to compensate for the act's foreseen bad effect.¹⁰

There is much debate over these conditions, and indeed their precise meaning has proven elusive. Joseph Boyle, for example, states that applying the DDE "presupposes that [it is] intelligible."¹¹ For instance, the third condition strikes many theorists as rather contradictory. Specifically, theorists argue that this condition may exclude the possibility of killing in self-defense, as the force employed by the agent is effective "only in virtue of the fact that it first harms the attacker."¹² Grisez responds to this critique by supposing agent activity to be a manifestation of both purported intention and a "unified performance" of that action, the result of which is to distinguish the means and ends "in the order of human action" with cause and effect in the "order of nature."¹³ Thus, since human action is the sum of intention and performance, a good effect which in the order of nature is preceded in the performance by an evil effect is not necessarily a good end achieved by an evil means, so long as the act is "a unity and only the good is within the scope of intention."¹⁴

Grisez's emphasis on intentionality lends credence to a second, equally poignant reservation concerning the DDE: Morality is assessed based on a distinction between effects that are intended and those that are merely foreseen. H.L.A. Hart, for example, argues that the foresight of a "probable consequence" is sufficient to deem that consequence as part of the agent's intention.¹⁵ John Austin goes further, arguing that the mere desire of a consequence of one's action is sufficient for intent.¹⁶ Responses to these arguments that seek to redefine, or even reject, the distinction between intention and foresight rely on particularly esoteric conditions which aim to

[Page 744]

redraw the traditional demarcation line.¹⁷ Thus, while the scholarship surrounding the intention/foresight debate has done well to evaluate, and in some cases reshape the presumptions upon which the DDE rests, it has simultaneously weakened the DDE as a vehicle for an objective determination of moral action.

II. The DDE as Positive Law

The full spectrum of legal protections and prohibitions imposed during armed conflicts is a product of the post-war global consciousness, the result of which has been the transplantation of norms of natural and customary law into two sets of positive legal rules, known formally as the LOAC.¹⁸ Of these, a norm central to the LOAC is the absolute rule against the intentional killing of noncombatants, or "noncombatant immunity." Codified in Article 51(1) of Additional Protocol I to the Geneva Conventions ("Additional Protocol 1"), the positive law states: "The civilian population . . . as well as individual civilians, shall not be the object of attack."¹⁹ A corollary of noncombatant immunity is the provision that parties to an armed conflict must conduct their operations in such a manner so as to maximize protection for civilians.²⁰

Yet, positive law qualifies these protections via the doctrine of military necessity. First appearing in the Lieber Code,²¹ the doctrine permits belligerent parties to conduct measures that are "indispensable for securing the ends of the

[Page 745]

war."²² This permission is expounded to include "all direct destruction of life or limb of 'armed' enemies, and of other persons whose destruction is incidentally 'unavoidable' in the armed contests of the war."²³ However belligerent parties are not given carte blanche: "Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge."²⁴

This view of military necessity continues to be operative. In the Hostages Trial, the International Military Tribunal at Nuremberg was presented with the issue of whether military necessity permitted German generals to kill civilians as reprisal during occupation of conquered territory.²⁵ In reaching its decision that the killing of civilians were not permitted by military necessity, the Tribunal reaffirmed military necessity to the precise language in the Lieber Code.²⁶ Thus, positive law seeks an "equitable balance" between humanity and military necessity—those who do not "directly participate" in the fight are immune from direct attack, however innocent loss of life when incidentally unavoidable is permissible.²⁷

For Geoffrey Corn, this balance has worked to manifest another canonical principle of the LOAC: the principle of distinction, which requires belligerent parties to "constantly distinguish" between lawful and unlawful targets.²⁸ Specifically, the only legitimate purpose of armed conflict is to "weaken the

[Page 746]

enemy forces."²⁹ Thus, attacks must be "proportionate": Article 57 of Additional Protocol I forbids an attack which may be "expected to cause incidental loss of civilian life . . . which would be excessive in relation to the concrete and direct military advantage anticipated."³⁰

So, while the historical purpose of the DDE may have been theological, the doctrine has evolved to become a secular condition of both just war theory and its positive counterpart.³¹ Indeed, double effect forms the "moral rationale" for the principle of noncombatant immunity, and also informs the standard of proportionality as provisioned in Additional Protocol I.³²

III. Challenges to the Adequacy Doctrine of Double Effect

An evaluation of the DDE as it applies to armed conflicts has been onerous. Indeed, the doctrine packs a powerful moral punch—so long as certain conditions are met, it is morally permissible to kill noncombatants.³³ Thus, there has been much written in either defense of, or in opposition to, the DDE as a means of assessing morality within a wartime environment.

The following five critiques of the DDE are relevant for our discussion: (1) that the DDE relies too heavily on an agent's intentions as a means to assess permissibility; (2) that the DDE purports to produce objective statements of morality, yet it relies on subjective determinations; (3) a worry about whether the DDE, which is derivative of natural law, is in any way altered as it is manifested in a positivist legal regime; (4) whether the conditions of wartime demand a "more flexible" assessment of agency-action; and (5) whether, and to what extent, an affirmation of all or some of these critiques strikes a fatal blow to the DDE's operative function. This last critique will be discussed in a...