Collateral Damage and the Principle of Due Care

Abstract

This article focuses on the ethical implications of so-called ‘collateral damage’. It develops a moral typology of collateral harm to innocents, which occurs as a side effect of military or quasi-military action. Distinguishing between accidental and incidental collateral damage, it introduces four categories of such damage: negligent, oblivious, knowing and reckless collateral damage. Objecting mainstream versions of the doctrine of double effect, the article argues that in order for any collateral damage to be morally permissible, violent agents must comply with high standards of care. In order for incidental harm to be permissible, an agent must take pains to avoid such harm even at higher cost to him- or herself. It is argued that accidentally but negligently caused collateral damage may be just as difficult to excuse as incidental harm. Only if high precautionary standards of care are met, can unintended harm to innocents – incidental or accidental – be permissible. In practice, such a strong commitment to avoiding harm to civilians may well lead us to question more generally and rethink more radically how violent conflicts ought to be fought, how military violence ought to be used and whether there are better ways of achieving those aims that we think are legitimate than those we are currently using.

Key Words:

• Collateral damage
• doctrine of double effect
• Tony Coady
• precautionary principle
• due care

ACKNOWLEDGEMENTS

I am grateful to Georg Meggle for insightful discussions of the problems raised in this article. I also received very valuable feedback from Olaf Müller and the audience at his research colloquium at Humboldt University of Berlin where I presented some of the paper's main ideas for the first time, as well as from the audience at Potsdam University's Philosophy Seminar where I gave an early version of this paper in 2010. I furthermore wish to thank Henrik Syse and two anonymous reviewers for the Journal of Military Ethics, whose constructive criticism has helped improve the paper. Finally, I am grateful to the Centre for Applied Philosophy and Public Ethics at The University of Melbourne for their hospitality during the time this article was written.

Notes

1. The formulation of this scenario is borrowed from Meggle (2005: 168) and I have used it previously (Schwenkenbecher 2012: ch. 6). In contrast to Meggle, I will focus on the problem of killing, that is lethal collateral damage, only.

2. The US American Law Institute's Model Penal Code (see §2.02 of the American Law Institute's Model Penal Code: http://www1.law.umkc.edu/suni/CrimLaw/MPC_Provisions/model_penal_code_default_rules.htm), for instance, distinguishes between four different mens rea: purposely, knowingly, recklessly and negligently. The first category, however, is not an instance of unintended harm and thus not relevant for the argument presented here.

3. I have developed these categories previously (Schwenkenbecher 2012: ch. 6).

4. One of the most important objections against the DDE and its theoretical foundations will not be rehearsed here. The doctrine establishes a categorical distinction between intended and foreseen harm, which is of great moral consequence as, according to the DDE, the foreseen killing of innocents may be permissible while the intended killing of innocents under the same circumstances would not be. Hence, the distinction between intention and foresight must carry a lot of moral weight. Various scholars believe that it carries, in fact, too much weight, and that the intention of the agent in performing an action could not make such a significant difference to the moral evaluation of this action (see Scanlon & Dancy 2000, Thomson 1991). Another objection accepts the significant distinction between intention and foresight, ‘but not the particular distinction between intending to bring about harm instrumentally and bringing about harm incidentally as a foreseen side effect that is supposed to serve as the normatively neutral ground of DE [Double Effect]’ (McIntyre 2001: 220).

5. There exist various versions of the DDE. I refer to the account by Tony Coady who is an adherent of the doctrine.

6. This reference to George Orwell's 1984 was originally used in this context by Elizabeth Anscombe (1970: 50) in her article ‘War and Murder’.

7. For a more detailed debate of proportionality, see for instance McMahan (2009).

8. See for instance a report by Human Rights Watch (2009) on the use of drones in the Israel–Palestine conflict. Also, the use of drones by the USA in Pakistan has given rise to a lot of controversy, in particular with regards to the ratio of civilian deaths vs terrorist deaths: see Bergen and Tiedemann (2010) and Kilcullen and Exum (2009). The former argued:

the 114 reported drone strikes in northwest Pakistan from 2004 to the present have killed between 830 and 1,210 individuals, of whom around 550 to 850 were described as militants in reliable press accounts, about two-thirds of the total on average. Thus, the true civilian fatality rate since 2004 according to our analysis is approximately 32 percent (Bergen and Tiedemann 2010).

9. The ethical challenges of remote weaponry have been examined for instance by Suzy Killmister (2008). In 2010, Journal of Military Ethics dedicated a special issue to the status of emerging military technologies, including an Executive Summary and Command Brief from the 2010 McCain Conference on ‘New Warriors/New Weapons: The Ethical Ramifications of Emerging Military Technologies’. The summary identifies a number of ethical concerns with unmanned systems, such as a worry that these ‘may inadvertently lower the threshold for resorting to war, thereby undermining compliance with the traditional “just war” requirement that war only be declared as a last resort’ (Lucas 2010: 427). In the document doubts are expressed ‘about the abilities of autonomous systems both to discern between legitimate and illegitimate targets…, and to subsequently apply the requisite legal and moral principles of military necessity and proportionality’ (427).

10. This obligation will have to be weighed against obligations of military commanders to protect the lives of their soldiers. But, unlike Cheryl Abbate (2014, in this issue), I think that the former can well outweigh the latter, given that non-combatants ought to be immune from attack.

11. See Bergen and Tiedemann (2010) for a discussion of UAV use in contemporary conflicts.

Additional information

Notes on contributors

Anne Schwenkenbecher

Anne Schwenkenbecher is a Lecturer in Philosophy with the School of Arts at Murdoch University in Western Australia. Before joining Murdoch, she held appointments at The University of Melbourne, the Centre for Applied Philosophy and Public Ethics (CAPPE) at Australian National University, The University of Vienna, and Potsdam University. Her PhD in Philosophy (2009) is from Humboldt University of Berlin. Her book Terrorism: A Philosophical Enquiry was published in 2012 with Palgrave Macmillan.