The Doctrine of Double Effect as an Ineffective Tool in War Theory
SAN DIEGO UNIV SCHOOL OF LAW CA
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Many proponents of the Doctrine of Double Effect DDE assert that its principles are applicable in the area of military operations. One way in which this is evidenced is the ever-present discussion of the tactical bomber versus the strategic bomber as an example of DDEs application, used by most DDE scholars to illustrate the difference between permissible and impermissible action under DDEs tenets. The goal of this paper is not to agree or disagree with DDE as a moral theory, but to propose that DDE is an unnecessary and ineffective tool in determining the propriety of military actions. The foundation of this argument is the notion that DDE should be thought of as a second-level theory that serves only to guide the formulation of first-level norms of behavior. After that, DDE is largely a useless resource in determining the permissibility of an agents action due to its potential applicability in only a handful of very specific, unrealistic circumstances. Though the concept of collateral damage as used in the military sense closely resembles the principles of DDE, collateral damage is not the only regularly used, or even the only commonly accepted, means of determining whether a particular military action is permissible. Other concepts, such as proportionality, necessity and discrimination, play a more important and concrete role in military theory, with collateral damage analyses only one factor in the equation of permissibility. It is this papers position that these other elements, already firmly embedded in the Law of War, are jointly self-sufficient and indeed much less complicated in practice than DDE. As such, in reaching the conclusion that an operation is permissible, one need not rely on such a theoretical moral equation as DDE and, in fact, war would be made more complicated, and the propriety of war operations much more subjective and fluid, by such a solely morality-based approach.
- Military Operations, Strategy and Tactics