Journal of Military Ethics (2004) 3(3): 233
/251

Double Effect, Double

Intention, and Asymmetric
Warfare
Steven Lee
Hobart and William Smith Colleges, Geneva, NY 14456, USA
Tel: /1 315 781 3379, Fax: /1 315 781 3348, E-mail: lee@hws.edu

Modern warfare cannot be conducted without civilians being killed.

In order to reconcile this fact with the principle of discrimination in
just war theory, the principle is applied through the doctrine of double
effect. But this doctrine is morally inadequate because it is too permissive
regarding the risk to civilians. For this reason, Michael Walzer has
suggested that the doctrine be supplemented with what he calls the
idea of double intention: combatants are not only to refrain from
intending to harm civilians; they are also to take precautions to
reduce risk to civilians, even at the expense of increasing risk to
themselves. The article develops the idea of double intention by addres-
sing two questions: What does it mean to intend to reduce civilian risk,
and how much should civilian risk be reduced? The results of this
discussion are then used to consider a moral issue that arises in
technologically asymmetric warfare, namely, the extent to which the
use of precision-guided munitions, which allow more accurate targeting,
can by itself bear the moral burden imposed by the principle of
discrimination.
KEYWORDS: double effect, double intention, asymmetric warfare, civilian risk, combatant risk,
precision-guided munitions.

The following set of statements is a trilemma. They are mutually inconsistent and
therefore cannot all be true. This is a problem for just war theory because each of
the statements is either a claim to which the theory is committed or an obvious
empirical truth.

ª 2004 Taylor & Francis DOI: 10.1080/15027570410006183

234 Steven Lee

1. Some wars are justifiable.

2. Civilians should not be harmed by combatants in war.1
3. Military operations in general cannot be carried out without civilians being
harmed by combatants.

The first statement is a basic assumption of jus ad bellum , and is the basis of just
war theory’s distinction from pacifism. The second is a partial statement of the
principle of discrimination, central to jus in bello. The third is an empirical claim for
which there is overwhelming evidence. If we take (2) and (3) together, then (1) is
false; or, if we take (1) and (3) together, then (2) is false. Assuming that (3) is true,
(1) or (2) must be false, which would be a serious problem for just war theory. To
save the theory, we must show that the inconsistency is not real but merely
apparent. To this end, we must show or grant that at least one of the statements is
false.

Double Effect
The usual way of avoiding this trilemma while preserving just war theory
is through adopting the doctrine of double effect as an interpretation of the
principle of discrimination. To see how this works, notice that there may be
an equivocation on the term ‘harmed’ in (2) and (3). ‘Harmed’ may mean either
(i) harmed intentionally or (ii) harmed intentionally or unintentionally. The
claim that the three statements are inconsistent requires that ‘harmed’ have
the same meaning in (2) and (3). If we use meaning (i) in both, then (3) is
false, avoiding the trilemma. Representing this understanding, statement (2)
becomes:

(2?) Civilians should not be intentionally harmed by combatants in war.

This is a partial statement of the principle of discrimination, interpreted in terms of

the doctrine of double effect.2
The distinction between intentional and unintentional harming may be
understood in different ways. How is it understood by the doctrine of double effect?
Consider this division among the effects of an action in terms of an actor’s
awareness of them:

1
The term ‘civilian’, as I will use it, refers to those persons who are noncombatants and are not otherwise
directly contributing to the war effort. On this understanding, people like munitions workers who are
making a direct contribution to fighting the war, may not be civilians, though they are of course
civilians in a standard sense of that term.
2
Statement (2) represents only a partial account of the doctrine of double effect. For a fuller account, see
Walzer (1977: 153).
 Double Effect, Double Intention, and Asymmetric Warfare 235

I. Effects actors do not foresee (resulting in mistakes and accidents);

II. Effects actors foresee:
A. Effects actors seek to bring about (the goals of their actions), as well as
effects that are the means to the goals;
B. Effects (usually causally) consequent to the achievement of the goals that
actors recognize to be certain or likely byproducts of their actions.3

In terms of this division, which effects are intended and which not? The unforeseen
effects (type I) are clearly not intended. In contrast, type IIA effects are clearly
intended. The question is about type IIB effects. From the perspective of the doctrine
of double effect, type IIB effects are viewed as not intended; they are referred to as
merely foreseen . But whether we regard type IIB effects as intended or not intended is
largely a verbal matter. The substantive point of the doctrine of double effect is that
the distinction between type IIA effects and type IIB effects is morally relevant. It
does not matter whether this distinction is marked by the contrasting terms
‘intended’ and ‘merely foreseen’ or, for example, the terms, ‘directly intended’ and
‘obliquely intended’, as is sometimes the case in American law.
In this article, I first discuss the need to augment the doctrine of double effect
as an interpretation of the principle of discrimination with what Michael Walzer
calls the idea of double intention. Then, I develop further the idea of double
intention. Finally, I briefly explore some implications of all this for our under-
standing of the morality of contemporary asymmetric warfare.

A Problem with Double Effect

The doctrine of double effect is not without problems. For one, it is not clear that
there is a morally relevant difference between intended and merely foreseen effects,
or, if there is, that it is the sort of difference that the doctrine assumes and requires.
But I want to focus on a different, though related problem, namely, that the
principle of discrimination, as interpreted by the doctrine of double effect, does not
adequately restrain the use of military force in terms of its effects on civilians. The
doctrine of double effect is too lenient; it does not capture the extent to which
combatants should seek to avoid harming civilians. The intuitive insight here is that
not only should combatants not try to harm civilians, which is all the doctrine of
double effect requires; rather, they should try not to harm them.4 Combatants must
take some care to avoid harming civilians, and this requires more than simply not
intending to harm them.

3
This category also includes effects that are consequent to the means, but are not themselves either
means or goals, for example, the causal consequences of effects that are means on causal paths
diverging from the causal path leading to the goal.
4
I owe this phrasing to Lichtenberg (1994: 355).
236 Steven Lee

To see the intuitive force of this criticism, consider a counterexample to the

claim that (2?) is morally adequate. Imagine dropping a large bomb on a military
command post that levels a major portion of the city in which the command post is
located.5 One could argue that this action satisfied the principle of discrimination as
interpreted by the doctrine of double effect. So long as the intention behind the
attack was the destruction of the command post and not the destruction of the city,
the harm to the city’s inhabitants would be merely foreseen, not intended, and the
action would not violate the principle of discrimination. Intuitively, this seems
unacceptable.
In response, defenders of the doctrine of double effect might argue that
the destruction of the city, though perhaps permissible under (2?), would be
prohibited by the other main jus in bello criterion, the principle of proportionality.
This principle requires that the expected harm from a military action not exceed
the expected benefit. But the destruction of the city would run afoul of this
principle only if the command post were not of sufficient military importance. If it
were, the destruction of the city would not be disproportionate. The point is
that there are military actions conforming to both (2?) and the principle of
proportionality in which the amount of civilian harm would raise the same intuitive
concerns as in this city-destruction example. The principle of proportionality
cannot make up for the inadequacy of the principle of discrimination as interpreted
by the doctrine of double effect. The moral concerns of the two principles are
different.6
That (2?) has the implication that the city destruction may be morally
acceptable is a powerful reductio ad absurdum argument against the claim that (2?) is
an adequate interpretation of the principle of discrimination. No interpretation that
has such an implication can be acceptable. In addition, (2?) suggests that the
principle of discrimination could be satisfied by the mental process of ‘focusing one’s
intention’. Given any case in which military actions have both military and civilian
effects, combatants, it seems, could guarantee that they satisfy the principle of
discrimination, no matter how great the civilian harm, by focusing their intentions,
as they act, on military effects alone. This makes the civilian effects (so long as they
are not the means to the military end) merely foreseen and so unobjectionable from
the perspective of the principle. Many would regard the mental exercise of focusing
one’s intention as morally trivial and inadequate to satisfy any genuine moral
restriction on military action.
Clearly, a different interpretation of the principle of discrimination is needed.
How might the principle be revised to avoid this problem? This is where the idea of
double intention comes into the picture.

5
In one of his public explanations for bombing Hiroshima, President Truman claimed that the city
contained important military facilities.
6
The concern of the principle of proportionality is the sum of harms and benefits of an action, while the
concern of the principle of discrimination is the rights of persons not to be harmed, unless they have
done something to surrender those rights.
 Double Effect, Double Intention, and Asymmetric Warfare 237

Double Intention
Michael Walzer (1977: 151
/159) has proposed an interpretation of the principle of
discrimination that avoids the kind of problem we have just been discussing. His
proposal may be seen as a revision to the doctrine of double effect, one in which
each kind of effect, the intended and the merely foreseen, is governed by its own
intention. The second intention, the one governing the merely foreseen effects, is
that the military action involve ‘a positive commitment to save civilian lives’ (ibid.:
156), beyond the negative commitment of the doctrine of double effect to avoid
intending civilian harm. Combatants must act with an intention to reduce the risk
of harm to civilians. Thus interpreted, the principle of discrimination becomes:

(2??) Civilians must not be intentionally harmed, and positive efforts must be make
to reduce the risk of civilian harm inherent in military action.7

One characteristic of this positive commitment to reduce civilian risk is that it will
normally involve an increased risk to the combatants. But, ‘if saving civilian lives
means risking soldier’s [sic] lives, the risks must be accepted’ (ibid.: 156).
Before developing this further, it may be helpful to consider a common
objection to the idea of double intention. The objection is to the requirement that
combatants put themselves at greater risk, which generally results when they seek
to lessen civilian risk.8 One critic, J. G. Fleury, claims that Walzer’s notion that
combatants should assume greater risk ‘conflicts with military logic and the
psychology of command’ (Fleury 1998: 7).

Nobody has a right to ask more from soldiers who are putting their lives on the
line. The principle of double effect, which stipulates that the death of non-
combatants is morally acceptable only when death is an indirect effect and not
an end or a means in itself, provides the moral guidance necessary in such
circumstances (Fleury 1998: 6).

What is his argument for this? ‘Certainly, soldiers do not have the same positive
duty to protect innocents among the enemy population, as they have to protect
their own population, although they have an obligation not to harm innocents

7
The risk of civilian harm, or civilian risk, as I will also call it, should be understood as expected harm ,
that is, the product of the foreseeable likelihood and the foreseeable magnitude of the harm the action
will visit upon civilians. In addition, though civilian harm is most often thought of in terms of deaths, it
should also include lesser forms of physical harm, perhaps also including psychological harm and
damage to property.
8
Less civilian risk does not always mean greater combatant risk. For example, some precision-guided
munitions are designed to be dropped from an airplane at considerable height, where the risk to the
pilots is less. The munitions, because they spiral down a cone, would be less accurate were they to be
dropped from a lesser height, where pilot risk would be greater. I owe this point to Michael Campbell.
238 Steven Lee

intentionally regardless of their nationality’ (Fleury 1998: 5). Apparently, the

doctrine of double effect is sufficient to satisfy the combatant’s duty because the
civilians who are at risk of harm from his actions are enemy civilians, not his
compatriots.
Fleury’s argument should be rejected. It assumes that the moral status of
enemy civilians results from their being enemy civilians rather than enemy civilians.
The moral right of civilians not to be harmed results from their status as human
beings, irrespective of their nationality. The principle of discrimination is based
on the idea that enemy civilians are protected because they are innocent, in the
sense that they are not causally responsible for the threat posed by their nation’s
military forces. They are as innocent in this sense as are the combatants’ fellow
citizens. Walzer asserts: ‘The structure of rights stands independently of political
allegiance; it establishes obligations that are owed, so to speak, to humanity itself
and to particular human beings and not merely to one’s fellow citizens’ (Walzer
ibid.: 158).
But, let us push Fleury’s criticism further. Morality recognizes special as well as
general obligations. For example, a person has a general obligation to respect the
rights of the opponent’s civilians, but also a special obligation to the civilians among
his compatriots. Thus, a combatant owes more to his fellow civilians than to the
opponent’s civilians. While there may be a floor of respect a combatant owes equally
to all civilians, some civilians (his own) are owed greater concern than others
(including the opponent’s). This point is strengthened by the observation that
combatants acting according to the demands of double intention may create greater
risk for their fellow civilians, as well as for themselves. This is because, in creating
greater risk for themselves, as combatants usually do when they act in accord with
double intention, they tend to decrease their overall military effectiveness from what
it would be if they adhered only to double effect. A less militarily effective effort by a
belligerent provides overall less protection for its own civilians.
Does this cast doubt on double intention? The fact is that any version of the
principle of discrimination, whether based on double effect alone or on double
intention, puts limits on military activity that may lessen the effectiveness of the
military effort. This is the point of jus in bello constraints. So, the point about special
obligations owed to one’s own civilians cannot directly decide in favor of double
effect and against double intention as interpretations of the principle of discrimina-
tion.9 By itself, it either proves too much or too little. The question is whether the
requirements of double intention represent part of the floor of respect owed to all
civilians.

9
This shows the role of the idea of military necessity in the argument. The tendency of this idea is to
undermine all jus in bello constraints, given that these constraints tend to work against military
efficiency and that the point of military necessity is to maximize that efficiency. Thus, jus in bello
principles are determined on grounds other than military necessity, and military necessity cannot be
used as a factor to decide between different degrees of constraint in these principles.
 Double Effect, Double Intention, and Asymmetric Warfare 239

The earlier arguments that double effect was inadequate and needed
supplementation by double intention suggest that the requirements of double
intention are indeed part of the floor of respect owed all civilians. Even at the risk of
military efficiency, combatants must try not to harm the opponent’s civilians.
Consider this analogy. A parent has a special moral obligation toward her own
child. So, for example, if several children are starving, the mother of one of them is
entitled to save her child over the others, if all cannot be saved. But she also has a
general moral obligation to respect the rights of all children. So, in seeking food for
her child, she is not entitled to steal food from other children, and she is required in
her efforts to find food (for instance, in hunting with a rifle) to try not to harm other
children, even if this makes it harder to get the food and increases the risk of
starvation for her own children.

Double Intention Developed

To develop more fully the idea of double intention, we need to address two
questions. First, what does it mean to intend to reduce civilian risk? Second, how
much should civilian risk be reduced?
Consider the first question. The key feature of the idea of double intention is
that a military action that carries civilian risk must include an intention to reduce
that risk. But what, more precisely, does it mean to intend to reduce civilian risk?
We must answer this question before we can consider how much the risk should be
reduced. For any military objective, there are different ways, alternative means, in
which combatants may seek to achieve it. This applies to military decisions at
whatever level they are made, strategic, operational, or tactical. One of these
alternatives will be best in a military sense, meaning that it is the most likely to
achieve the objective at the least military cost. This alternative could be called the
militarily optimal alternative . The other alternatives are militarily suboptimal.
Normally, many, if not all, of the alternatives will pose some risk to civilians.
Based on the risk they pose to civilians, then, we may divide the militarily
suboptimal alternatives into two groups, those that pose a greater civilian risk than
is posed by the militarily optimal alternative and those that pose a lesser civilian
risk. From here on, I will be concerned only with the latter group, alternatives that
pose less of a civilian risk than is posed by the militarily optimal alternative.
Given these distinctions, the following is part of our understanding of the idea
of double intention:

Combatants should choose, in respect to every military goal or objective, a

means to achieve it that poses less of a civilian risk than that posed by the
militarily optimal alternative.
240 Steven Lee

This is what it means to intend to reduce the risk to civilians.10 Note in passing that
the fact that the idea of double intention requires the choice of a militarily
suboptimal alternative shows why adherence to it generally entails an increase in
combatant risk. A militarily suboptimal alternative is more militarily costly than the
militarily optimal alternative, and combatant risk is one of the chief forms of
military cost.
Now to the second question: How much does the idea of double intention
require that civilian risk be reduced? Or, to put it the other way, how much should
the risk to our combatants be increased to reduce the risk to their civilians?
Combatants should choose among the alternatives that carry less of a civilian risk
than that of the militarily optimal alternative. But, the first point to note is that
double intention will not generally tell us which particular alternative should be
chosen. Rather, it will tell us which alternatives may be chosen and which may not
be chosen. In other words, to put it roughly, double intention indicates how much
civilian risk should be reduced, thereby permitting any alternative that reduces
civilian risk at least that much. The idea of double intention divides the alternatives
into permissible choices and impermissible choices. The impermissible choices are
the alternatives that do not lower civilian risk sufficiently. If double intention
implied that any alternative that reduced civilian risk could be chosen, any choice
that reduced civilian risk, however small, corresponding to little or no increase in
combatant risk, would satisfy the principle of discrimination. The idea of double
intention would then be morally trivial. It would represent a form of moral
disingenuousness similar to the idea, referred to earlier, that all combatants would
have to do to satisfy the doctrine of double effect would be to focus their intentions
on the military aspects of whatever destruction their actions were likely to cause.
What does Walzer say about how much civilian risk should be reduced? When
first introducing the idea of double intention, he says that the second intention
should be to reduce the risk to civilians ‘as far as possible’ (Walzer ibid.: 155). But
this cannot be correct because reducing the risk to civilians as far as possible would
involve an open-ended increase in the risk to combatants or an abandonment of any
plausible means to achieve the military objective. Walzer recognizes this, saying
later, ‘there is a limit to the risks that we require’ that combatants take to reduce
civilian risk. But what is that limit? How much should civilian risk be reduced and,
correspondingly, combatant risk be increased? In regard to this question, he makes
three points (ibid.: 156).
First, he claims that the extent to which civilian risk should be reduced varies
from case to case, depending on ‘the nature of the target, the urgency of the
moment, the available technology, and so on’. There is no way to specify in advance
how much decrease in civilian risk is required. It depends on the circumstances.

10
Note that this formula does not cover the case in which the militarily optimal alternative happens to be
the alternative that poses the least risk to civilians, which is certainly possible. In that case, of course,
the militarily optimal alternative should be the alternative chosen.
 Double Effect, Double Intention, and Asymmetric Warfare 241

Second, he proposes that the extent to which civilian risk should be decreased
is set by the right of the opponent’s civilians to have combatants exercise ‘due care’
in their military operations. This right is analogous the right of citizens in the
domestic sphere that their fellows exercise due care in the amount of risk they
impose on others. This point is a specification of the first point because it says
something about how the moral requirement of double intention varies from case to
case, namely, that it varies in a way specified by the civilians’ right to due care in
the combatants’ military operations.
Walzer’s third point, like his second, appeals to a domestic analogy. In war, the
standard of due care owed to civilians is relaxed in comparison with what due care
requires in the normal domestic situation. The standard in war is more like the
relaxed standard found in domestic emergencies, such as the efforts of utility
workers to avoid an imminent gas explosion. Given the urgency of the situation, the
workers are allowed to impose a greater risk on bystanders than would normally be
allowed. In the context of war, the standard is always relaxed. Like those working to
avoid the gas explosion, combatants are permitted to put civilians under greater risk
than normally would be allowed in civilian life. War-time standards of due care are
less stringent.

How much should Civilian Risk be reduced?

Consider each of these three points. Walzer’s first point is certainly correct. The
amount of decrease in civilian risk required by the idea of double intention varies
from case to case, depending on the circumstances. One thing this means, Walzer
notes, is that we cannot say that civilians have a right (corresponding to
combatants’ duty) to have imposed on them no more than ‘such and such a
degree’ of risk, such as ‘a one-in-ten chance of death’ (ibid.: 156).
Despite this variability, however, some claims can be made that apply to
all cases. In each case, there is a set of relevant factors that must be considered;
these factors must be weighed against each other to determine how much civilian
risk should be reduced, and so which alternatives are permissible. But a claim
Walzer makes about one of these factors needs more careful consideration.
This factor is the likelihood that a particular alternative will achieve the military
objective in question, which, of course, varies among alternatives. Walzer appears
to assert that this factor places a fixed upper limit on how far combatants need go
to reduce civilian risk. The principle of discrimination, he says, should not require
actions that would seriously jeopardize the success of a mission. Combatants
need not choose an alternative that would make achieving the objective sufficiently
unlikely (that would ‘doom the military venture’), no matter how effective it might
be at reducing civilian risk. Such alternatives may straightforwardly be ruled out
of consideration (ibid.: 157). In addition, this point of Walzer’s may be taken
to suggest that after these alternatives are ruled out of consideration, the factor of
242 Steven Lee

the likelihood of an alternative’s achieving the objective need not be considered at

all in choosing among the alternatives remaining.
The likelihood that an alternative would achieve the military objective is
an important factor, but Walzer misrepresents the role it should play in the decision
process. He seems to give the factor absolute weight in some cases and (by
implication) no weight in others. But this is not how things work. First, there is
no nonarbitrary way to clearly divide those alternatives that carry too low a
likelihood of achieving the objective from those that do not, as Walzer’s idea
seems to require. Second, even for alternatives where the likelihood of achieving
the objective is low, it is still possible to imagine that a great decrease in civilian
risk would make any alternative that reduced civilian risk less impermissible.
Third, the likelihood that an alternative would achieve the objective should
be taken into consideration along with the other relevant factors in judging
alternatives even where that likelihood is high. All of this is part of the
logic of weighing relevant factors in determining whether an alternative is
permissible.
That an alternative with a low likelihood of achieving its objective may need to
be chosen may be seen from the following example. Imagine in the case of a military
command post in a city, that the only reliable way to destroy it is to bomb it in a
way that will destroy a large portion of the city.11 Imagine further, that if an
alternative such as sending in a commando force were tried, the likelihood of failure
would be high. Walzer’s position would seem to be that that the commando-force
alternative may be rejected out of hand because it would place the achievement of
the military objective in great jeopardy. But surely, given the large number of
civilian lives that would be saved by choosing the commando-force alternative, that
alternative should at least be considered.12 We should have a decision procedure
that makes possible the rejection of an alternative that would reliably achieve an
objective in favor of one that would not, when the latter carries a great benefit in
terms of saving civilian lives.
So far, we have discussed three factors that should be considered in
determining which alternatives are permissible. One factor is, of course, the risk
the alternative poses to civilians. The other two are the risk the alternative imposes
to the combatants and the likelihood of the alternative’s achieving the objective.
Thus, in choosing a permissible means to a military objective, combatants should
weigh the following factors:

a. the extent of the civilian risk the alternative poses;

b. the extent of the combatant risk the alternative poses; and
c. the likelihood that the alternative would achieve the military objective.

11
This is, of course, a less likely alternative in this age of precision guided munitions, but imagine that
the command post is mobile within a portion of the city and cannot be pinpointed exactly.
12
I ignore the principle of proportionality for the same reason I did in the earlier use of the urban
command-post example.
 Double Effect, Double Intention, and Asymmetric Warfare 243

The basic idea of double intention is that combatants should choose a means to a
military objective that goes some distance toward decreasing (a) at the expense of
increasing (b). But (c) must be involved in the calculations as well. In choosing a
means, combatants should trade off some increase in (b) and decrease in (c) for
some decrease in (a).13
But the question remains, in comparing available alternatives, how much of
an increase in (b) and a decrease in (c) should be traded off for how much of a
decrease in (a). This leads to Walzer’s second point, that civilians have a right to an
exercise of due care on the part of combatants, analogous with, though less strict
than, the normal due care requirement in domestic relations. The combatant’s
proper weighing of the three factors in choosing a means is the exercise of due care
in his relation to enemy civilians. Exercising due care toward our fellows in
domestic relations is also a matter of comparing alternatives in the light of factors
analogous to those governing choices in war. Walzer mentions that his thinking on
this point was aided by writings in which Charles Fried seeks to explicate the idea of
tort liability in American law in terms of the notion of a ‘risk pool’. The idea is that
‘all persons by virtue of their interactions contribute, as it were, to a common pool
of risks which they may impose upon each other, and on which they may draw
when pursuing ends of the appropriate degree of seriousness’ (Fried 1970: 189). It is
permissible for me to impose risks on you, by driving my automobile, say, because
in your activities, you impose risks on me. It is a matter of reciprocity, of
social cooperation within a community. Another way to make this point is to talk
in terms of mutual hypothetical consent. Because everyone benefits from the
scheme of social cooperation, everyone would hypothetically consent to the risk it
entails.
This use of a domestic analogy may be more finely tuned, if we note the
distinction between negligent and reckless behavior.14 When actors cause
unjustified harm that was not the goal of their actions, they may do so either
negligently or recklessly. To put it roughly, when behavior is negligent, actors do
not foresee, but should have foreseen, the harm their actions do, while when
behavior is reckless, actors foresee the harm, but act in the face of that awareness.15
There are at least two reasons to think that when combatants impose impermissible
civilian risk, their behavior is reckless rather than negligent.
First, Fried’s explication of negligent behavior is in terms of a risk pool, but the
idea of a risk pool is apparently not applicable to risks that combatants impose on
enemy civilians. Combatants and enemy civilians, being from different societies, do

13
The role played by factor (c) shows that the answer to how much civilian risk should be decreased
cannot be given merely in terms of a comparison between the value of a combatant’s life and the value
of a civilian’s life. The calculations are more complicated than this.
14
David Rodin also discusses civilian risk imposition in terms of the contrast between recklessness and
negligence (2004).
15
To be more precise, what the reckless actor foresees is usually not the certain occurrence of the harm,
but a significant likelihood that it will occur. Note that the harmful effects of reckless behavior are type
IIB in the division of effects discussed earlier, effects foreseen but not intended.
244 Steven Lee

not share a risk pool. They are not in a relationship of reciprocity; there is no
hypothetical consent to the risk imposition. This makes it hard to understand how
combatants could be negligent, in Fried’s sense, towards enemy civilians. This
connects with an earlier point raised in the discussion of Fleury. He rejected double
intention on the grounds that combatants do not owe foreigners that degree of
concern. But this reasoning is flawed, as we saw, because the applicability of the
principle of discrimination does not depend on nationality of the potential civilian
victims. The morally relevant fact about civilians is that they are innocent, in some
sense of that term, not that they are citizens of this or that nation. This means that
whether they share a risk pool with the combatants is irrelevant to the minimal
moral respect they are due.
The second reason that unjustified imposition of civilian risk is better
understood as recklessness is that recklessness involves an awareness or foresight
of the likely harm. Generally, combatants who violate the principle of discrimina-
tion, like the reckless and unlike the negligent, are aware that their actions impose
risks on civilians. In fact, violations of this principle of discrimination are very much
like a standard example of domestic recklessness, namely, the discharging of a
firearm in a crowded room. This would normally be reckless rather than negligent
because the shooter would be aware that the shooting imposes great risks on
innocent individuals, the same sort of awareness combatants generally have about
the civilian risk their actions impose.
In the domestic case, behavior is reckless when the risk it imposes on others is
unreasonable . So, we may say that double intention requires that combatants intend
to reduce civilian risk to the point where it is not unreasonable. An alternative
means is permissible when the civilian risk it imposes is reasonable. But what is
reasonable civilian risk? Walzer’s third point bears on this question. Combatants
have more latitude in the civilian risks they impose than do their domestic
counterparts who impose risks on bystanders. The standard of reasonable risk is
always relaxed in war, whereas it is only sometimes relaxed in the domestic sphere,
as when utility workers seek to avoid an imminent gas explosion. The standard is
relaxed in the case of the imminent gas explosion because the stakes are high; but in
war, the stakes are always high. So much is at stake in war that it is sometimes
reasonable, not reckless, to fire pistols (or more destructive weapons) in environ-
ments where civilians are present. But sometimes not, and this is why there is a
need for the second intention to reduce the risk to civilians, to make civilians safer
than they would be were the combatants to choose the militarily optimal alternative
means to a military objective.
But this extra allowance for risk imposition in war due to the higher stakes
may be at least partially offset by an important point of contrast between war and
the domestic risk imposition. As noted earlier, some domestic bystander risk
imposition is permissible because the bystanders share in the benefits that come
with the risks. But this does not generally apply in regard to civilian risk in war
because enemy civilians do not normally share in the benefits that come with the
 Double Effect, Double Intention, and Asymmetric Warfare 245

risks (see Rodin, 2004).16 The benefits from military action generally accrue instead
to the state and citizens for which the combatants fight. The standard of reasonable
civilian risk must take into account both that the stakes are high, allowing for
greater risk imposition, and that the civilians at risk generally do not hypothetically
consent to its imposition, counting against greater risk imposition.
But one other thing should be said about the stakes and their implication for
determining reasonable risk. While they are higher in war, they are not always
equally high. The stakes vary from case to case, depending, for example, on the
contribution of the military objective in question to the overall war effort.
Analogously, in a domestic emergency where the standard is relaxed due to the
high stakes, still, the degree of relaxation depends on how much the objective of the
action in question would contribute to a beneficial resolution of that emergency. For
instance, in the case of an imminent gas explosion, where avoiding the harm the
explosion would cause involves the efforts of a number of different public-safety
workers, the amount of risk different of those workers may impose on by-standers
would depend on how central their efforts are to avoiding the harm. In the military
context, some skirmishes are more key than others to victory in a battle; some
battles are more key than others to victory in the war.
This suggests the addition of a fourth factor relevant to determining the
reasonableness of civilian risk-imposition:

d. the extent to which the achievement of the military objective would further the
cause of victory in the war.

Note that, while (a), (b), and (c) are mutually dependent, varying in relation to each
other, (d) is independent of them. But (d) may be a factor that cannot be applied at
the immediate, tactical level of combat, where the mission has been assigned by
those higher up and the lower-level combatants charged with executing the mission
do not have the ability and should not have the discretion to judge the overall
worthiness of the objective.17 But it seems as if (d) can and should be applied at the
higher, operational or strategic levels. In addition, there may be a version of (d) that
would be applicable at the tactical level, namely, the extent to which some military
action would contribute to successful completion of the assigned mission. One might
be tempted, by the way, to add a fifth factor:

e. the importance of victory in the war.

But to do so would undermine the idea that what is permissible in jus in bello is
permissible to both sides equally, independent of which side is fighting with the just

16
It is not true that civilians never share in the benefits. They may share in the benefits, for example, in
the case of humanitarian intervention.
17
I owe this point to Michael Campbell.
246 Steven Lee

cause, who is the aggressor and who the defender. To add such an (e) would
collapse the distinction between jus in bello and jus ad bellum .18
The listing of factors relevant to determining reasonable civilian risk
provides no easy way to do the calculations. How can combatants be held to
such an apparently obscure standard? They can be held to such a standard in the
same way that all of us are held to a similar standard of avoiding recklessness in our
daily lives. The factors relevant to determining reasonable risk in the domestic
situation are similar to those factors relevant to the military situation, and the
standard they define is just as apparently obscure. But as members of society, we
are held to that standard, and we feel comfortable enough with the ability of
the standard to guide our action that we do not find it inappropriate that people
are convicted and punished in law for failure to adhere to it. We believe that juries
have the common sense to determine whether someone has adhered to it. In
addition, legal systems have case law that tends to make reasonableness or similar
notions more precise and predictable over time. We may expect that such an
informal case law in military traditions, and perhaps a more formal one in military
law, would over time make the requirements of double intention more precise
as well.19
Now, we may try to put all of the pieces together into a revised statement of the
principle of discrimination, as interpreted in terms of the idea of double intention:

(2???) Civilians must not be intentionally harmed, and positive efforts must be make
to reduce the risk to them. Combatants should choose means to achieve their
military objectives that pose less civilian risk than the militarily optimal means;
more specifically, they should choose means that impose a reasonable risk on
civilians. Reasonableness is determined by weighing the extent of the civilian risk an
alternative imposes against other relevant factors, such as: the extent of the
combatant risk the alternative imposes; the likelihood that it would achieve the
military objective; and the extent to which the achievement of the objective would
further the cause of victory in the war.

As suggested earlier, this is not a standard to be applied only at the tactical level, in
the choices made by individual combatants, but also at the operational and strategic

18
What if choosing the alternative that is required by principle of discrimination would greatly decrease
the likelihood that the objective could be achieved, not in a military sense, but in a political sense?
What if this choice would make the war impossible to wage in terms of domestic political support?
Some say that this was the case with the American participation in the Kosovo War, where, they
argue, the alternative of some ground combat over the chosen alternative of an exclusive reliance
on air power was required by the principle of discrimination. But the casualties from ground
combat might have made the war politically untenable in the United States. This may be a way in
which jus in bello and jus ad bellum fail to be completely independent. This issue was raised to me by
George Lucas.
19
On this point, see Walzer (1977: 321
/322).
 Double Effect, Double Intention, and Asymmetric Warfare 247

levels, where alternative means to achieve broad military objectives are chosen and
where rules of engagement are formulated.20
Two points should be noted about this formulation of the principle of
discrimination. First, it does not require that combatants take the minimization of
civilian risk as their exclusive task. The standard of reasonableness indicates
whether some alternative has reduced civilian risk sufficiently, given the other
relevant factors. If it has, then it is permissible. This implies that combatants need
not compare alternatives with each other to determine which carries the least
civilian risk. Combatants are morally free to choose any alternative that carries less
civilian risk than the militarily optimal alternative and is permissible without
further reference to the amount of civilian risk it imposes. Combatants are free to
maximize, as in most cases they will, for some combination of low (b) and high (c)
among permissible alternatives. Or, they may be free to act in a supererogatory way
by choosing a permissible alternative because it carries less civilian risk than other
permissible alternatives.21
The second point is that under this formulation, the principle of discrimination
seems partly a matter of considering consequences. So long as the principle was
interpreted in terms of the doctrine of double effect alone, it remained purely
deontological, concerned exclusively with our duties toward innocent persons and
the characteristics of our intentions in regard to them. But once double intention is
added and the principle is seen to require reducing merely foreseen risk to civilians,
the principle becomes mired in consequentialist calculations bearing on how far
that risk should be reduced. This may seem to blur the distinction between the two
jus in bello principles, discrimination, which is deontological, and proportionality,
which is consequentialist. I think that this blurring, such as it is, is inevitable once
we recognize the need for combatants to take due care not to harm civilians. But
even so, these is still a distinction between the principles, for the principle
of proportionality concerns aggregate harm to all persons involved, while
the consequentialist concerns of the principle of discrimination are subsidiary to
the moral status of those to whom it applies, namely, civilians. In this respect,
consequentialist considerations are primary for the principle of proportionality, but
secondary for the principle of discrimination.

Double Intention and Asymmetric Warfare

The main kind of warfare in which the United States and other major industrial
powers are likely to be involved for the foreseeable future is asymmetric warfare.

20
Walzer (1977: 316
/322) discusses the responsibility of those at higher levels of command for
adherence to the principle of discrimination.
21
Though here other obligations may impinge, such as obligations that combatants have to their fellows
and their nation to achieve military victory.
248 Steven Lee

Warfare is asymmetric when the belligerents are greatly mismatched in military

prowess, in terms of resources, technology, or both. There are two types of
asymmetric warfare of recent concern. One type is the struggle against non-state
terrorist groups, represented currently by the ‘war on terrorism’, and the other is
war against so-called rogue states, examples being the 1991 and 2003 wars against
Iraq.22 I will offer some remarks about the relationship between each of these and
the principle of discrimination as interpreted by double intention.
The main connection between the war on terrorism and the principle of
discrimination is the view that this kind of warfare requires a relaxation of the
principle’s strictures. This idea applies especially to the principle as interpreted by
double intention, since this interpretation is stricter than the interpretation in terms
merely of double effect. There are several reasons that might be offered to show that
the unique character of the war on terrorism requires that the principle of
discrimination be either diluted or abandoned. First, terrorists do not themselves
recognize the principle of discrimination, so those fighting terrorism may relax or
eliminate its strictures on their own behavior. Second, terrorists deliberately attack
civilians, so the direct mission of the military forces fighting terrorism is to protect
civilians from attack; consequently, this mission should have priority over efforts to
protect civilians on the other side. Third, terrorists rely for their protection on hiding
among civilians, much more so than conventional uniformed forces generally do,
so they cannot be effectively fought unless the forces fighting them are allowed to
put civilians as significant risk. The moral fault in exposing civilians to great risk in
the fight against international terrorism lies not with the forces fighting the
terrorists, but with the terrorists themselves, who deliberately use civilians as
shields.
Does the war on terrorism allow or require the dilution or abandonment of the
principle of discrimination, as this argument claims? One point may be conceded.
The circumstances of the war on terrorism are significantly different than the
circumstances of conventional wars. This indicates that the application of the
principle in the war on terrorism may yield more permissive results because the
altered circumstances may give greater weight to the factors, such as (b), (c), and
(d) above, that are weighed against civilian risk in determining the permissible
means to the military goal. Whether this is fact the case would need further
investigation, but if it is, it would not be a dilution, let alone an abandonment, of the
principle. Rather, it would be simply an application of the principle in altered
circumstances. The claim that the principle should be diluted or abandoned is
another matter. The three reasons cited for this conclusion depend, in different
ways, on the idea that the actions of the terrorists let those fighting them off the
moral hook, so to speak. What the terrorists do absolves those fighting them of the
moral obligation to take care to avoid harming those who are innocent of

22
There is much controversy about whether the ‘war against terrorism’ is really a war or whether it is
really against terrorism, as opposed to a specific enemy, such as the organization Al Qaeda. I will
largely sidestep these issues here.
 Double Effect, Double Intention, and Asymmetric Warfare 249

involvement in the terrorists’ efforts. But this obligation is owed by those fighting
the terrorists directly to those who are who are uninvolved. It is not mediated by the
actions of the terrorists. Only those who are uninvolved can absolve those fighting
terrorism of this obligation, and they can do this only by ceasing to be uninvolved,
that is, by joining the terrorists in their efforts. Thus, the principle of discrimination
stands in the face of this new kind of asymmetric warfare.
Now, consider the other type of asymmetric warfare, warfare by a major
industrial power against a so-called rogue state. Some of the moral issues raised by
such a war are matters of jus ad bellum , as in the claim that rogue states may in
some cases be attacked preventively. But our concern is with the jus in bello issue of
discrimination. Wars against rogue states are asymmetric mainly in the techno-
logical advantage enjoyed by a major-power belligerent (especially in the case of the
United States). What, then, is the connection between technologically asymmetric
warfare and the principle of discrimination as interpreted by double intention? One
connection is that the principle has implications that might not be obvious about
how technologically asymmetric war should be fought.
In the case of the technological advantage enjoyed currently by the United
States, consider the role of precision guided munitions (PGMs). With PGMs, a
belligerent can engage in aerial bombardment from a great distance with
remarkable accuracy. For example, a cruise missile can fly thousands of miles
and strike within a few feet of its intended target. From the point of view of the
principle of discrimination, this is a great and obvious advantage. With the proper
intelligence, combatants can be much more discriminate in their attacks, greatly
decreasing collateral damage among civilians. In addition, the weapons’ greater
accuracy allows the military objective to be achieved with smaller explosives,
further reducing potential civilian risk. But this moral advantage of PGMs can be
seductive. It can lead combatants away from an appreciation of their obligations
under the principle of discrimination by leading them to believe that the technology
itself can carry the full moral load. Combatants may come to believe that use of the
technology itself ensures that they are fighting morally. According to the double-
intention interpretation of the principle of discrimination, however, this is not the
case. I will discuss three ways in which the use of discriminate weapons does not by
itself satisfy the principle of discrimination.
First, the use of PGMs, like any military action, must show an intention to
reduce civilian risk. PGMs are referred to as discriminate weapons because they can
be used in a discriminate way, not because any use of them is ipso facto
discriminate. The weapons are discriminate only when they are used in a
discriminate way; otherwise they simply kill civilians more accurately than the
old munitions did. This means, among other things, that the weapons should be
used only when the combatants have a reliable belief that the immediate target area
is relatively free of civilians, and they can have such a belief only when reliable
intelligence about the target is available. It could be easy to be seduced into
believing that, because PGMs are discriminate weapons, any use of them is morally
acceptable. But the weapons themselves cannot substitute for the second intention.
250 Steven Lee

Second, one feature of double intention is that when it is applied there is in

general an inverse relationship between (a) the extent of the civilian risk an
alternative poses and (b) the extent of the combatant risk it poses. Reducing civilian
risk comes at a price of increasing combatant risk. The advent of PGMs does not
alter this basic fact. The weapons we use are part of what determines the militarily
optimal means to achieve a military objective, and the principle of discrimination
requires that combatants choose alternative means that carry less civilian risk than
the optimal alternative. While the existence of these weapons may alter, at least
potentially, the base line risk that warfare poses to civilians, it does not thereby
absolve combatants of the requirement to intend to reduce the risk further, which
means increasing the risks to themselves. The use of PGMs by itself, as part of the
baseline, cannot satisfy this obligation.
Third, these weapons provide the basis for a policy by the technologically
advantaged belligerents of seeking to reduce combatant casualties radically, ideally
to zero (a policy sometimes known as radical force protection). Such a policy was
adopted by the United States and NATO in Kosovo, where air power alone was used,
without ground forces, to bring about Belgrade’s capitulation.23 But such a policy
cannot satisfy the principle of discrimination, due to the inverse relation between
civilian risk and combatant risk.24 Given this inverse relation, a policy seeking to
reduce combatant risk at all costs amounts to a rejection, in practice at least, of the
need for an intention to reduce civilian risk. Consider just one of the ways in which
this played out in the Kosovo campaign. In order to force Belgrade’s capitulation in
the absence of a ground assault, the United States and NATO had to bomb targets
that the regime valued highly, many of which were dual-use targets, that is, targets
that have both a military and a civilian use, such as elements of basic social
infrastructure. Destruction of these targets caused significant harm to civilians,
including probably a number of deaths, due, for example, to the degradation of
sanitation facilities and the loss of electrical power in hospitals. Exclusive use of air
power as a means to the objective of forcing Belgrade’s capitulation was presumably
the militarily optimal alternative. Double intention requires the choice of a militarily
suboptimal alternative, and this would require abandoning the goal of zero
combatant casualties.

Acknowledgements
For support in the writing of this paper, I would like to thank the Center for the
Study of Professional Military Ethics at the United States Naval Academy, where I
was a resident fellow during 2003
/4. In addition, I would like to thank the

23
See note 18 above.
24
A different, and very interesting, moral objection to the Kosovo policy of radical force reduction may be
found in Kahn (2002).
 Double Effect, Double Intention, and Asymmetric Warfare 251

audience for their comments at two occasions on which versions of this paper were
presented, the 2004 meeting of JSCOPE, the Joint Services Conference on
Professional Ethics, and a round table sponsored by the Ethics Center at the Naval
Academy. Special thanks for their comments are due Michael Campbell, Larry
Lengbeyer, George Lucas, Al Pierce, and three anonymous reviewers for this
journal.

References
Fluery, J.G., 1998. ‘Jus in Bello and Military Necessity’, Advanced Military Studies Course 1
(Department of National Defense, Canada); available from http://198.231.12/papers/
amsc1/o12.html; Internet.
Fried, Charles, 1970. An Anatomy of Values . Cambridge, MA: Harvard University Press.
Kahn, Paul, 2002. ‘The Paradox of Riskless Warfare’, Philosophy and Public Policy Quarterly
22(3): 2
/8.
Lichtenberg, Judith, 1994. ‘War, Innocence, and the Doctrine of Double Effect’, Philosophical
Studies 74: 347
/368.
Rodin, David, 2004. ‘Unintentional Terrorism: A Moral Definition’, forthcoming in Ethics .
Walzer, Michael, 1977. Just and Unjust Wars . New York: Basic Books.

Biography
Steven Lee (PhD, York University, 1978) is a professor of philosophy at Hobart
and William Smith Colleges. This paper was written while he was a resident fellow
at the Center for the Study of Professional Military Ethics at the United States
Naval Academy. He has written extensively on matters of military ethics,
including Morality, Prudence, and Nuclear Weapons (Cambridge University Press,
1993). An anthology he co-edited with Sohail Hashmi, Ethics and Weapons of
Mass Destruction: Religious and Secular Perspectives , is about to appear from
Cambridge University Press. Currently he is working on topics in humanitarian
intervention and preventive war.