Journal of Military Ethics (2003) (2(3)): 186
/194

What is the Scope of Civilian

Immunity in Wartime?
Whitley Kaufman
Department of Philosophy, University of Massachusetts Lowell, 265 Riverside Street, Olney Hall,
Room 102, Lowell MA, 01854-5042, USA
Tel: /1 978 934 3913, Fax: /1 978 934 4077, E-mail: Whitley_Kaufman@uml.edu

In this essay, I address a recent argument by Colm McKeogh and several

others that calls for two major modifications of traditional Just War
doctrine: (1) abandoning the intend/foresee distinction and outlawing
even foreseen civilian deaths in war, and (2) abandoning the principle of
noncombatant immunity to the extent of allowing intentional harm to
civilian property in war, so long as that property is not indispensable for
survival. I argue that neither of these changes is warranted from a moral
standpoint. In particular, I claim that the two proposals are in funda-
mental tension: McKeogh invokes the principle of noncombatant immu-
nity in war to justify his first proposal, but then violates that principle in
his second proposal. There is no good moral basis for permitting
intentional harm to innocent persons, even if that harm is only to
property. Finally, I defend the intend/foresee distinction as a reasonable
basis on which to minimize harm to innocents in wartime.
KEYWORDS: noncombatant immunity, Double Effect, intend versus foresee.

One of the most firmly established elements of the Just War tradition is that of
noncombatant immunity. Those who are not directly participating in the fighting
are not to be targeted; this rule prohibits any direct attacks on the person or
property of noncombatants, or indeed any action taken with the intention of
causing harm (physical or even psychological) to noncombatants. A fundamental
dilemma of war, however, is that civilians will inevitably be hurt, no matter one’s
intentions. How then is it possible to fight a just war? The traditional answer,
codified in the Doctrine of Double Effect (DDE), is that justice requires that one not
intend harm against noncombatants. Harm that is merely accidental, or even that is
foreseen but not intended, is permissible (though of course regrettable and to be
avoided where possible). The basic dividing line for just conduct in war, then, is that
between harm which is intended and harm which is at most foreseen but not
intended. This idea has long been a fundamental tenet of the Just War doctrine, but
recently it has been challenged by a group of critics including Colm McKeogh,

ª 2003 Taylor & Francis DOI: 10.1080.15027570310000685

 Civilian Immunity in Wartime 187

Charles Dunlap, and Don Stauffer. In this essay I will explore whether this new
challenge effectively undermines the traditional reliance on the DDE.

Intending versus Foreseeing Harm

The intend/foresee distinction has long been criticized on two distinct grounds. First,
it has been widely argued that the distinction is unworkable: there is no clear
method of drawing a line between what effects one intends and what one merely
foresees.1 For my part, I doubt that such line drawing is any more difficult than it is
for any number of essential moral distinctions (consider for example the sorts of
lines that have to be drawn in determining the legitimacy of self-defense: is the
harm imminent or remote; is the defensive force used proportional or not; is there a
reasonable possibility of retreat or not, etc.). In general, the existence of difficult or
borderline cases does not undermine the general validity of a distinction (as Dr.
Johnson pointed out, the existence of dusk does not refute the distinction between
night and day). In any case, McKeogh and his fellow critics do not specifically raise
this sort of objection against the DDE, so I will not pursue the issue here.
Rather, McKeogh and his fellow critics claim that the intend/foresee
distinction is morally arbitrary. Harm is harm, the argument goes, and it is little
consolation to the civilian that it was not intended. If the civilian has a right to life,
then it is violated whether his death is caused intentionally or with mere foresight.
To undertake an action knowing that it will harm innocent persons is wrong and
cannot be sharply distinguished for moral purposes from harm that is strictly
intended. McKeogh thus proposes an alternative conception of noncombatant
immunity which does away with the intend/foresee distinction. For McKeogh, even
foreseen killing of civilians violates principles of justice, and the Just War doctrine
needs to be tightened to this extent (for the rest of this essay, I will follow McKeogh’s
practice of using the terms ‘civilians’ and ‘noncombatants’ interchangeably, though
this equation is problematic2). However, McKeogh et al. propose simultaneously
loosening the doctrine at another point, allowing non-lethal harm (specifically,
property damage) against civilians. Thus under the proposed revision, the
significant moral distinction is not between intended versus foreseen harm, but
between lethal and non-lethal harm. In wartime, they argue, it is never legitimate
to kill civilians (other than accidentally), but it should be legitimate to target civilian
property as a way of pursuing victory in war.
Before beginning an analysis of this proposal, I will first state some limitations
on my aims in this paper. First, I cannot engage in a full-scale defense of the intend/
foresee distinction on moral grounds in this essay. Given space limitations, my focus

1
See, e.g., Bennett (1998: 214 */225).
2
On the theory I am defending here, the key concept is noncombatancy: i.e., one is not presently engaged
in the use of violent force. The combatant/noncombatant distinction matches up only roughly with the
soldier/civilian distinction: a civilian who takes up arms becomes a combatant and thus a legitimate
military target, while a soldier who lays down his arms becomes a noncombatant and may not be
targeted. However, in most cases civilians will be noncombatants and soldiers combatants, so it is not
too misleading to use the terms equivalently.
188 Whitley Kaufman

will rather be on whether the proposed alternative is morally satisfactory. Second, I

will assume here that the debate takes place within the framework of those
accepting Just War constraints; to the Realist I have nothing to say here for the
most part (Dunlap’s argument appears to be grounded in Realism, so for this reason
my argument will focus more on McKeogh). Third, I will assume a deontological
framework as the foundation of the Just War doctrine; to the consequentialist again
I have nothing to say (McKeogh too adopts the deontological view, so our dispute is
not over this question). Finally, I will assume that the basis for noncombatant
immunity is not the moral ‘innocence’ of civilians vis-à-vis soldiers, but rather that
killing soldiers in wartime is justified only on self-defense grounds. As noncomba-
tants pose no immediate, imminent threat to life or limb, they are not permissible
targets during war. This again is a controversial assumption (McKeogh appears to
reject it, and Dunlap in fact bases his argument on the fact that civilians are not
truly ‘innocent’), but again there is not sufficient space to defend the position fully
here.

The Doctrine of Double Effect

First, a brief statement of the four provisions of the Doctrine of Double Effect. This
doctrine permits an action which has both good and bad effects so long as the
following conditions are satisfied:

1. The action must not be wrong in itself. For example, strategic bombing of
legitimate military targets in a just cause is not itself wrongful.
2. The agent must not intend the bad effects. Thus, the strategic bomber must not
intend the harm to the civilians.
3. The bad effects must not be the means to the good effect. In strategic bombing,
the good effect is the destruction of the legitimate targets; harm to civilians is a
side effect but not the means by which the legitimate military targets are
destroyed.
4. The good sought must be proportionately important relative to the bad effects
that are foreseen. The destruction of legitimate military targets must be a
sufficiently weighty value to justify harm to civilians; a target of trivial value
would not justify significant harm to civilians.

If all four of these conditions are met, then the action is justified despite the foreseen
harm to civilians. This position remains, as I have said, the dominant one in Just
War theory.
McKeogh claims that the DDE, in allowing foreseen civilian deaths, is morally
unacceptable. He argues that it is ‘callously indifferent to the killing of civilians in
war as a foreseen side effect of one’s action’ (2002: 168). Alternatively, McKeogh
claims, if one reads the DDE (especially condition 4) as a consequentialist condition,
it is morally unacceptable in that it permits ‘trading innocent lives off against some
other good’ (ibid.). Either way, it fails to treat the individual person as justice
demands: that ‘no one should be punished except for their own crime, that innocent
life should never be taken as a means towards an end, and that the individuality of
all should be acknowledged and respected’ (ibid.: 165). McKeogh is skeptical about
 Civilian Immunity in Wartime 189

whether there is a moral justification for the principle of noncombatant immunity

(ibid.: 149). But he does accept at least the basic moral idea that the ‘sacrifice of
innocent lives to a good cause is wrong’, and that it is wrong to ‘treat people only as
a means to an end’ (ibid.: 173), principles which, he argues, are violated when
military forces cause foreseen civilian casualties. He therefore proposes abandoning
the intend/foresee distinction and banning any actions which foreseeably cause
civilian deaths.
McKeogh goes further, however, and (following Dunlap) appears to offer a sort
of trade-off to the military. While he insists on taking away the military’s right to
cause foreseen civilian deaths, he at the same time suggests granting the military
the right to destroy civilian property: ‘A strategy of destroying civilian property may
be an effective and technologically feasible way of avoiding the unjust taking of
human life’ (ibid.: 171). International law strictly prohibits any attacks on innocent
persons, including their property (as does morality; attacks on innocents or their
property even for a good cause would violate the DDE).3 McKeogh (following
Dunlap) approvingly quotes Don Stauffer’s assertion that ‘hurting a civilian’s
pocketbook is more ethical than bombing him’ (Stauffer 2000: 26, quoted in ibid.).
He proposes, along with Dunlap, that civilian property be a legitimate military
target, so long as that property is not indispensable to survival. Taking a life, after
all, is a far greater wrong than destroying property.

Modifying the Scope of Civilian Immunity

What then could be a convincing moral justification for this radical change in Just
War doctrine, which traditionally prohibits foreseen lethal harm to persons, but
permits intentional destruction of civilian property as a means to victory in war? It
is rather difficult to say just what McKeogh’s justification is, but I will try here to
identify some of his arguments. McKeogh claims that there is a difference between
damage to property and destruction of human life:

Damage to civilian property can be outweighed by a proportionate good

achieved, but if humans are respected as separate individuals, then the loss of a
civilian life can never be outweighed by a good end achieved. Death is different
to any other harm; it cannot be offset by any good (McKeogh ibid.: 165).

The principle of respect for individuals, McKeogh believes, demands that killing
(even unintended killing) be treated differently than mere harm to property, such
that the one be absolutely prohibited, the other fully permitted. This assertion that
death is fundamentally different than any other harm is, however, not supported by
an argument. What sort of argument could be given?
The most obvious respect in which death is fundamentally different from other
types of harm, sufficient to justify this radically different treatment, is that it is the
one sort of harm for which no compensation is possible to the victim of the harm,

3
See, e.g., 1977 Protocol Additional to the Geneva Conventions of 1949.
190 Whitley Kaufman

since he no longer exists. Lost property can be replaced or compensated, but an

individual who is dead cannot be restored to life. However, McKeogh would be well
advised not to endorse any such argument. The ‘death is different’ justification of
course prohibits only lethal harm, and not non-lethal but appalling direct physical
harm to civilians (torture, rape, maiming, etc.), since one can provide compensation
for such harm after the fact. (It is thus a significant omission that McKeogh and his
fellow critics do not address the issue of direct, non-lethal bodily harm to civilians).
Thus the ‘death is different’ rationale is inadequate by itself, as it would permit
morally atrocious behavior. In fact, the Just War doctrine does recognize that ‘death
is different’ to the extent that the justification for killing a soldier must be far more
weighty than the justification for merely wounding a soldier, and similarly each
must be far more weighty than the rationale for damaging someone’s property
(principles of self-defense require the use of the least destructive means possible to
achieve the desired result; if one can stop an attacker by merely wounding him, one
is morally required to do so.) But even if property damage is a much less significant
wrong than killing, it remains a wrong nevertheless.
More fundamentally, the fact that non-lethal harm is compensatory does not
suffice as a moral justification for producing such harm. Causing death is more
serious than merely wounding or destroying property not because death is not
compensatory, but because a human life is a greater value than a piece of property
or even a limb. Indeed, the fact that a harm is compensatory is by itself of dubious
moral significance, for it simply ducks the question as to whether a particular action
is right or wrong; my ability to compensate someone does not in general give me
moral permission to harm him. The fact that an unjust action is compensatory does
not make it permissible. Indeed, the requirement of compensation presupposes that
some sort of wrong has been done. This is, after all the Just War doctrine we are
talking about, not the Compensatory War doctrine. Non-lethal physical harm to
civilians is also compensatory, but I doubt that McKeogh would want to permit
intentional physical harm against civilians as part of a just war.
In any case, the fundamental justification for permitting direct attacks on
civilian property rests on the claim which both McKeogh and Dunlap approvingly
adopt from Stauffer that harming property is ‘more ethical’ than harming persons,
therefore it is permissible to destroy civilian property. But this is a deeply
problematic assertion. Right and wrong, just and unjust, ethical and unethical
are qualitative , not quantitative, terms. An action is either ethical or it is not; there is
no third alternative. McKeogh’s argument, if taken seriously, would lead to odious
results: one could justify killing ten civilians on the grounds that it is ‘more ethical’
than killing twenty, or justify maiming as more ethical than killing. To be sure,
there are greater and lesser magnitudes of wrongdoing. But that does not change
the fact that moral wrongdoing in war (as elsewhere) remains impermissible even if
it is a lesser harm than otherwise might have been taken. There is no moral
principle that holds it is permissible to do wrong, since one could have done much
worse; this would be to confuse the amount of harm one causes, with whether one
has done wrong. One suspects that the phrase ‘more ethical’ is a rhetorical device
which in effect concedes that even causing civilian property damage is a moral
wrong.
Indeed, on McKeogh’s own principles, direct attacks on civilian property for
purposes of furthering the cause of war appear to be clear moral violations. For they
 Civilian Immunity in Wartime 191

violate the moral prohibition against using innocent persons as a means. As

McKeogh asserts: civilians ‘have done, and are doing, nothing that warrants attack
on them’; hence ‘the most fundamental principles of justice . . . require that civilians
be immune from targeting in war. Civilians may not be targeted whatever the
consequences’ (ibid.). But if civilians are immune from being killed because they
have done nothing wrong, then it is hard to see why they are subject to having their
property destroyed. (Conversely, if it is morally permissible to destroy their property,
on what grounds is it impermissible to target their persons?) Dunlap offers a
straightforwardly consequentialist justification for the permission to harm civilian
property, but McKeogh has foreclosed this justification for himself by his rejection of
consequentialism. Yet it is difficult to see what, other than a consequentialist
argument, could suffice to justify this clear harm against those ‘who have done
nothing to deserve it’ (ibid.: 173). (The ‘death is different’ argument also founders
on this same point.) The argument in the end founders on an internal contradiction:
the very principle which McKeogh invokes to reject foreseen civilian deaths */
civilian immunity */would also proscribe intentional harm against these innocent
persons, even if only harm to their property.
It is of course true that, all things being equal, it is better always to do less
harm than more. If one is faced with a genuine ‘tragic dilemma’, in which forced to
do wrong no matter what, it is true that one is sometimes permitted to choose the
‘lesser of two evils’. But such dilemmas are quite rare (if they even exist at all), and
McKeogh gives us no reason to think that the current topic of discussion involves
any such dilemma. Since there is always the option of doing neither of the wrongful
actions, one can hardly invoke a ‘lesser evil’ defense. Here, one need not kill
civilians, nor need one harm their property. There are cases where it is permissible
to destroy property, e.g., pitching goods overboard during a storm to save a ship.
But this is a genuine case of the choice of evils in an emergency situation. I also
leave aside the issue of whether, as Walzer argues, urgent circumstances justify
overriding moral constraints, so that in some circumstances it may be permissible to
target civilian property (Walzer 1992: 231). McKeogh’s proposal is meant as a
general rule of war, not merely for emergency situations.
The choice of evils issue raises what is perhaps the most puzzling point in the
argument. Both McKeogh and Dunlap present the issue as if it involved a choice
between either allowing foreseen civilian deaths, or permitting destruction of
civilian property. For Dunlap, we should ‘replace the killing of people with the
destruction of objects’ (Dunlap 2000: 16; emphasis added); for McKeogh, in some
conflicts, ‘genuine civilian immunity could come at the expense of civilian property’
(McKeogh ibid.: 171). But this is surely a fallacy of false alternatives, as it implies
that we have to make a choice between foreseen deaths and intentional property
damage.4 In fact, if either one is morally wrong, then Just War doctrine forbids it.
This argument appears to constitute a significant concession to Realism or to
practical necessity. The idea is perhaps that military commanders are unlikely to
give up the right to cause foreseen civilian casualties, unless they are given some
alternative that compensates them for this restriction, or perhaps that civilians

4
A clear example of the false alternatives fallacy is Dunlap’s claim that we should ‘honor the value of
human life over property interests’ (2000: 16). Current law does not ‘choose’ between lives and
property.
192 Whitley Kaufman

would be happy to give up rights over their property in return for a guarantee of
personal safety. It appears to be a straightforward example of a trade-off, in
McKeogh’s view: ‘attacks on civilian property would be welcome [!] if they were
accompanied by a genuine immunity for civilian life in war’ (ibid.: 172). For
Dunlap, the shift seems to be an instance of the gradual heightening of values in
war; destroying objects instead of people ‘would seem to represent a positive step
toward reducing human suffering in armed conflicts’ (Dunlap ibid.: 16). This
appears to imply that the practice is at best a temporary expedient that eventually
would be phased out. However, Dunlap does not appear to see this new permission
to destroy property as merely temporary, but rather a ‘valuable tool for the forces of
the moral against those of the amoral’ (ibid.: 17).
McKeogh may well be right that it would be impractical to demand the end of
foreseen civilian deaths without giving the military some sort of tradeoff. My
concern in this essay, however, is what is morally permissible, not what is in
practice realistically possible. Hence it is necessary to point out the moral non
sequitur in the present proposal. Unless we are given a positive argument as to why
the destruction of civilian property is morally right, we cannot use it as a bargaining
chip to end the practice of allowing foreseen civilian deaths. The two issues are
morally distinct, and each has to be evaluated on its own. Even if causing property
damage is a lesser wrong than killing,5 it remains a wrong nonetheless.
There is perhaps a further reason why both Dunlap and McKeogh insist on
seeing this issue in terms of a moral trade-off. My guess is that each of them realizes
that disallowing even foreseen civilian deaths (or even, as I have argued, foreseen
physical harm to civilians) would so cripple the war effort that it might even
threaten our ability to win in wartime, and that some alternative effective tool such
as the targeting of civilian property is necessary as replacement. In fact, it is quite
possible that a ban on foreseen harm to civilians would undermine the possibility of
strategic bombing even more than these critics realize. But even apart from jus in
bello difficulties, there is an even more serious objection with regard to jus ad bellum .
If, on McKeogh’s principle, one may not undertake an action in which there are
foreseen civilian deaths, and if (as is virtually universally accepted) a significant war
without any civilian casualties is simply unimaginable, then on this principle there
can never be just cause for going to war. Any country that goes to war knows that
it will result in civilian casualties (especially in modern war, where civilian
casualties have steadily increased). On this principle then war is intrinsically unjust,
and we must all become pacifists. ‘A war, if it cannot be fought justly, must not be
fought at all’ (McKeogh ibid.: 170). I consider this a reductio ad absurdum of
McKeogh’s argument.

Terrorism and Civilian Immunity

Nor should one underestimate the effect that McKeogh’s proposed new rules would
have on the war against terrorism, and on the traditional distinction between just

5
Of course, it remains an open question whether a foreseen but unintended civilian death is indeed a
greater moral evil than an intentional destruction of property of an innocent person.
 Civilian Immunity in Wartime 193

and unjust uses of violence. This is an issue both from a practical and theoretical
standpoint. Practically speaking, laws and statutes regarding terrorism would have
to be rewritten, for they currently almost universally ban attacks against property
as well as civilian life. Indeed, there are terrorist groups (such as the Environmental
Liberation Front) that adopt a policy of only damaging property, never human or
animal life. While one applauds their respect for the sanctity of life, one does not
want to go on record as condoning the destruction of property even in the name of a
good cause.
Even more important, however, is the theoretical issue. The war on terrorism
requires moral distinctions to be as clear and comprehensible as we can make them.
What is wrong with terrorism is not that the terrorist lacks a just cause (he may
well have a just cause), nor that his action takes place in or out of wartime, nor that
he deliberately takes human life (soldiers in wartime deliberately take human life).
Terrorism is wrong because it involves intentionally harming innocent people */
where ‘innocent’ is taken in the special sense that they are not an immediate threat
to one’s safety, and hence there is no justification for using deadly force in self-
defense against them. Paul Ramsey calls this ‘objective’ or ‘functional’ innocence
rather than moral innocence (2002: 159). To harm innocent people physically, or
to harm them indirectly by attacking their property, is terrorism either way: it is
using innocent people as a means to one’s ends. McKeogh’s alternative moral rule
would, I fear, confuse this fundamental principle, by allowing that it is morally
permissible to deliberately harm the innocent (so long as it is non-lethal harm).
Indeed, once one permits intentional harm against civilian property (abandoning
the principle of noncombatant immunity), it is I fear a short step down the slippery
slope to justifying physical or even lethal harm to civilians.

Conclusion: Morality and the Doctrine of Double Effect

Even if McKeogh’s proposal is ultimately unsatisfactory, we are left with the
question as to whether he still has a valid objection against the DDE and current
Just War doctrine. While I cannot enter into this issue in detail, I do want to briefly
respond to his charge that the permission to cause foreseen civilian death betrays
‘callous indifference’ to human life. In fact, I think this characterization represents a
common misunderstanding of the DDE: that, so long as one does not intend the
harm, it is simply not one’s concern or responsibility. Michael Walzer repeats this
misunderstanding when he insists that the DDE be supplemented with the principle
that ‘the foreseeable evil be reduced as far as possible’ (1992: 155). But a more
plausible reading of the DDE holds that such a principle is already implicit in (or
even explicit in) the second provision of the doctrine. Thus the New Catholic
Encyclopedia gives provision two as following: ‘The agent may not positively will
the bad effect but may permit it. If he could attain the good effect without the bad
effect he should do so’ (Vol. 4). That is to say, the agent always has the duty to
minimize the bad effects. The action is permitted only where the good effect cannot
be obtained without the bad effects also occurring */and where the good effect is
proportional to the bad effect (condition 4). As many theorists have emphasized, in
wartime this means that a combatant must be willing to accept a substantial
194 Whitley Kaufman

increase in risk to his own safety in order to protect innocents from the risk of harm;
it also requires that one take any possible steps to protect civilians (leaving an
escape route from a city under siege, etc.). Suzanne Uniacke has argued that the
DDE does not deny that one is responsible for the foreseen deaths (1996: 93); and
there is no reason to think one should not regret these deaths. I do not accept
McKeogh’s characterization of this doctrine as expressing callous indifference.
Finally, a word about the meaning and purpose of the DDE. The doctrine is
consciously formulated as a response to a radically imperfect world, in which even
the best of intentions cannot avoid harm, in which good and evil are tragically
mixed and combined. To aspire to moral perfection, wherein one could act only
where one was certain of never causing harm, would be to undercut the possibility
of any significant action at all. To act in this world is to risk harm, even great harm.
Indeed, to undertake an action which one knows will cause the ultimate harm */
the death of innocent people */is to take on a terrible responsibility. It is one which
should be taken in ‘fear and trembling’ and only adopted if the good being sought is
of such great importance that it justifies the harm being caused. The DDE, and Just
War theory in general, acknowledge this tragic necessity, the inevitability of
unfortunate side effects. In such a world*/and especially in wartime */we cannot
be moral saints, but we can abide by the fundamental moral constraint against
intentionally harming the innocent.

References
Bennett, Jonathan, 1998. The Act Itself. New York: Clarendon Press.
Dunlap, Col. Charles J., Jr., USAF, 2000. ‘The End of Innocency: Rethinking Noncombatancy
in the Post-Kosovo Era’, Strategic Review : 9
/17.
McKeogh, Colm, 2002. Innocent Civilians: The Morality of Killing in War . New York: Palgrave
Macmillan.
New Catholic Encyclopedia , vol. 4, 1967. New York: McGraw Hill (1020
/1022).
Protocol Additional to the Geneva Conventions of 1949, 1977. Can be accessed at http://
www.deoxy.org/wc/wc-proto.htm
Ramsey, Paul, 2002. The Just War: Force and Political Responsibility. Lanham, MD: Rowman &
Littlefield.
Stauffer, Don, 2000. ‘Electronic Warfare: Battles Without Bloodshed’, The Futurist January/
February: 26.
Uniacke, Suzanne 1996. Permissible Killing . New York: Cambridge University Press.
Walzer, Michael 1992. Just and Unjust Wars . 2nd ed. New York: Harper Collins Publishers.

Biography
Whitley Kaufman (PhD. Georgetown University 1998) is an assistant
professor of philosophy in the Philosophy Department, University of Massachu-
setts Lowell. His publications include articles on deontology and consequential-
ism, the Doctrine of Double Effect, and the role of motive and intention in criminal
law.