Philosophia (2013) 41:349–359 DOI 10.1007/s11406-013-9436-3

Is the Appeal of the Doctrine of Double Effect Illusory? Danny Marrero

Received: 1 June 2012 / Accepted: 10 September 2012 / Published online: 7 April 2013 # Springer Science+Business Media Dordrecht 2013

Abstract Scanlon (2008) has argued that his theory of permissibility (STP) has more explanatory power than the Doctrine of Double Effect (DDE). I believe this claim is wrong. Borrowing Michael Walzer’s method of inquiry, I will evaluate the explanatory virtue of these accounts by their understanding of actual moral intuitions originated in historical cases. Practically, I will evaluate these accounts as they explain cases of hostage crises. The main question in this context is: is it permissible that nation-states act with military force in order to liberate hostages, even if those actions put the lives of the hostages at risk? The first part of this paper has an operative reconstruction of the relevant theories. In the second section, two cases of hostage crises will be considered: the Moscow theater hostage crisis of 2002, and the Jaque Operation, which occurred in Colombia in 2008. Additionally, it will be shown that DDE explains these cases better than STP. Finally, this paper offers a critical analysis of Scanlon’s account of the explanatory power of both STP and DDE. Keywords Double Effect . Permissibility . Philosophy of War . Hostage Crises . Thomas Scanlon

Introduction There is not a unified account of moral permissibility. Instead, what one can find is a group of rival theories that compete to provide the best explanation of

D. Marrero (*) Department of Philosophy, University of Arkansas, Old Main 318A, Fayetteville, AR 72701, USA e-mail: [email protected] D. Marrero Department of Humanities, Universidad Jorge Tadeo Lozano, Carrera 4 # 22-61, Bogotá, Colombia e-mail: [email protected]

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this issue. The aim of this paper is to assess the explanatory power of two of those alternatives: the Doctrine of Double Effect (DDE) and Thomas Scanlon’s Theory of Permissibility (STP). Such evaluation will adopt a specific methodology that calls for an initial clarification. The explanatory virtue of these accounts is going to be measured by their capability to explain moral intuitions originating in historical cases of hostage crises. Is it permissible that nationstates act with military force in order to liberate hostages, even if those actions put the lives of the hostages at risk? This is the question in relation to which both DDE and STP will be assessed. Due to the specific objective of this paper, an academic reconstruction of the doctrines under account is unnecessary. With this in mind, the first part of this discussion will provide an operative reconstruction of the theories being considered. That is to say, a schematic presentation of these accounts will suffice for the purposes of this paper, along with a list of criteria that will be useful in applying them to the historical cases. The second section of this paper will provide both the context in which those theories are going to operate and the specific explanations of these accounts. First, two cases of hostage crises will be studied: the Moscow theater hostage crisis of 2002, and the Jaque Operation, which occurred in Colombia in 2008. Then, it will be shown that DDE explains these cases better than STP. Ultimately, since Scanlon has argued that his theory provides a better explanation of permissibility than DDE (Scanlon 2008, p. 26), this paper has the burden of proof showing that his perception is wrong. Accepting this challenge, the final part of this paper will offer a critical analysis of Scanlon’s ideas.

Two Alternative Explanations of Permissibility Providing a standard of moral permissibility, DDE holds that an action that has a morally refutable result could be permissible if it fulfills the following necessary conditions (C): C1: The intended final end must be good. C2: The intended means to it must be morally acceptable. C3: The foreseen bad upshot must not itself be willed (that is, must not be, in some sense intended). C4: The good end must be proportionate to the bad upshot (that is, must be important enough to justify the bad upshot) (Quinn 1989, p. 334). From this perspective, each one of these conditions has a different object of evaluation. In addition, all of them together determine the permissibility of one action. C1 studies the end of the action, determining its goodness. C2 assesses whether or not the means that the agent includes in his plan of action has room in some moral theory. C3 verifies if the agenda includes an evil side effect. This being so, the arguable action should be disapproved. C4 balances the costs of the good end and the costs of the bad upshot. If the latter are greater than the

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former, then the action is impermissible. The explanation of permissibility postulated by DDE is well-served with a list of critical questions (CQ) answered in the appropriate way: CQ1: Is the intended end good? CQ2: Are the intended means morally acceptable? CQ3: Is the foreseen bad upshot itself intended? CQ4: Is the good end proportionate to the bad upshot? Alternatively, Scanlon (2008) puts forth a theory of permissibility (STP) according to which an action depends upon two combined elements. In the first place, the morality of an action is subjected to a general principle that rules the activity and determines its wrongness. This element has to be conjoined with a second one. The permissibility of a refutable action is also subordinated to a justification defending that the action can be subsumed in one of the exceptions of the principle that regulates the action under account (Scanlon 2008, p. 36). Consequently, as Scanlon explains, Both permissibility and fault are determined by principles that we can ask each other to use in deciding what to do. Permissibility, as I have said, is determined by the use of these principles in guiding deliberation: an act is permissible if, under the circumstances, it will be licensed by the principles. The same principles, used critically, determine the fault. Because the same principles are involved in both uses, permissibility, unlike the objective ‘ought,’ is a notion that normally entails fouls. (Scanlon, 2008, p. 49) All these considerations amount to the claim that an explanation provided by STP has to answer these critical questions: CQ5: What is the relevant principle applicable to the case? CQ6: Can the case be subsumed in one of the exceptions that the principle provides?

Explanations of Permissibility in Hostage Crises Let’s now examine the behavior of both DDE and STP in two historical cases of hostage crises in the context of terrorism. Several reasons justify the selection of these cases. First, since “ the method of practical morality . . . [is] casuistic in character” (Walzer 1977, p. xvi), the study of cases has value in itself. A second reason is that moral philosophy is not confined to studying thought experiments. Contrarily, moral thought can illuminate our actual moral intuitions, judgments, arguments and dilemmas. Third, although important reflections about wars between states, or regular wars abound, such studies should be complemented with studies of terrorism, or irregular wars. Last, but not least, since terrorism and organized crime have exponentially increased, kidnapping is a rising strategy of war that calls for moral consideration.

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The Moscow Theater Hostage Crisis On October 23, 2002, forty armed separatist Chechens took eight hundred and fifty hostages in the Theatrical Center in Dubrovka, Moscow. After more than 2 days of unfruitful negotiations, Russian forces decided to pump a poisonous gas into the theater’s ventilation system (“Gas ‘Killed Moscow Hostages’,” 2002). The outcomes of that military operation included the fatalities of 130 hostages and 40 separatists (McGeary and Quinn-Judge, 2002; Burban et al., 2006).1 The then Russian Interior Minister noted that although “Russia would grieve with the relatives of the civilians who died,” it was important to “stres[s] that 750 people . . . had been rescued alive” (“Moscow Hostage Death Toll Soar,” 2002). Such a perturbing reaction raises a moral question: was it permissible for the Russian army to pump a poisonous gas into the Theatrical Center in Dubrovka, bringing about the liberation of the most of the hostages at the cost of the death of 130 hostages and 40 kidnappers? DDE reacts to CQ1 with the suggestion that since one of the roles of the nationstate is to provide security to its citizens, the liberation of the hostages was a good end. Michael Walzer states that “the peculiar evil of terrorism [is] not only the killing of innocent people but also the intrusion of fear into everyday life, the violation of private purposes, the insecurity of public spaces, the endless coerciveness of precaution” (Walzer 2004b, p. 51). In this sense, Walzer recognizes that with terrorist attacks “a relative small number of dead victims makes for a very large number of living and frightened hostages” (Walzer 2004b, p. 51). Therefore, the aim of the liberation of the hostages in the Theatrical Center in Dubrovka was morally acceptable because both the hostages and also the Russian society more generally would be freed from the threat and fear of the terrorists. In response to CQ2, DDE would suggest that it was morally unacceptable that the Russian army used poisonous gases as a means of liberation because this strategy did not minimize the risk for the hostages. Walzer’s ideas are useful for clarifying this point as well: “In fighting against terrorists, we must not aim at innocent people (that’s what terrorists do); ideally we should get close enough to the enemy . . . so that we are quite sure not only that we are aiming at them but also that we are hitting them” (Walzer 2004a, p. 136). However, the use of the poisonous gas did not provide the target discrimination required of morally acceptable responses to terrorism. If, as Walzer states, “we must avoid overestimating the smartness of our smart bombs” (Walzer 2004a, p. 137), then the Russian government should have predicted the volatility and collateral damage of the means being considered. Continuing with CQ3, someone could interpret that the “bad upshot” under consideration is the death of the hostages along with the kidnappers. The reason for this is that the Russian army knew the lethality of the gas that they used. As a consequence, they expected the death of both 40 terrorists and at least some of the hostages (Burban et al., 2006). However, even if the Russian army was fully aware of the danger of using the toxic gas, they did not necessarily intend the death of the hostages. Walzer provides us with an alternative criterion of interpretation here. For him it is a fact that “[c]ivilians may be put at risk by attacks on military targets, as by “The gas also incapacitated many of their hostages, leaving some unconscious, with breathing problems and memory loss” (“Gas ‘Killed Moscow Hostages’”).

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attacks on terrorist targets” (Walzer 2004b, p. 61). Thus, the bad intention cannot be the death of innocent civilians, but “the seriousness of the intention to avoid harming civilians” (Walzer 2004a, p. 137). With this interpretation, CQ3 has a negative answer. In addition to the response for CQ2, the type of gas selected for the operation indicates that the avoidance of harming the civilians was not part of the Russian army’s calculation. Consider the following declaration of a former Russian Defense Ministry official: “they decided that use of any normal riot control agent irritants such as pepper spray or tear gas might give the captors time to harm the hostages. So the decision was made to use the strongest” (Peterson 2002). This decision increased risk for the hostages, but this factor is not relevant in the Russian army’s reasoning. Therefore, it is plausible to believe that they did not have the intention of avoiding harm for the innocent civilians involved. Finally, balancing the cost of the right to life and the cost of the right to liberty, it seems that it was not proportional to kill 130 hostages and 40 kidnappers in order to liberate the other hostages. The final rights violated by the Russian army were more fundamental than the rights that had been violated by the kidnappers. However, one could alternatively argue that the life of the hostages was in danger if the Russian army did not intervene. Such an argument was ruled out, though, by the victims of the military operation: Several versions related to the shooting of hostages were offered by the authorities to justify the necessity of the assault. The first version made public to the mass-media at 05:40 a.m. by Mr. Pavel Kudryavtsev, an Operations HQ representative, was false information that “in the past 2 h … 2 hostages were killed by the terrorists”, and for that reason the HQ had to make a decision to launch the assault. Nevertheless, the investigation proved that there were no hostage killings either on the 24th, or the 25th, or on the 26th day of October. Olga Romanova and Gennady Vlakh were not hostages, they freely entered the TC and were shot because they made the terrorists even more aggressive. The second version was voiced to the mass-media at 06:30 a.m. by Mr. Ignatchenko, an Operations HQ representative. He misinformed the public by saying that in the course of an attempt to escape from the building two hostages had been killed and some had been wounded. The special troops advanced in order to support them. The attempt of a breakthrough was attributed to Pavel Zakharov and Tamara Starkova who had been badly wounded by stray bullets a few hours earlier and by the time the storming began had been at the hospital for about 3 h. The versions that were sounded later offered as causes for the assault the refusal by terrorists to carry on further negotiations and their refusal to release the hostages. But it had been agreed to release US and Kazakhstan hostages at 8-00 a.m. of October 26. (Appendix 28.7), and negotiations with General Kazantsev had been appointed for 10-00 a.m. of the same day. The investigation materials proclaim the decision to consider actions of special services as performed in the state of extreme emergency and to acknowledge the

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existence of the state of extreme emergency disregarding real facts and independent opinions on the situation that could have been obtained and used in an adversary trial in order to establish the validity and legality of the use of the gas (Burban et al., 2006). The conclusion of this evaluation seems clear, from the perspective of the DDE it was impermissible for the Russian army to pump a poisonous gas into the Theatrical Center in Dubrovka. To compare, STP reacts to this case as follows. First, the principle that regulates the case could be determined in the following terms: In a hostage crisis, one is sometimes permitted to use army force of a kind that would normally be prohibited. But such force is permitted only when its use can be to bring some advantage that allows the liberation of the hostages, and it is permitted only if the expected harm to the hostages is as little as possible. And only if this harm is “proportional” to the end of the crisis.2 Having answered CQ5, it is possible to say that this case cannot be subsumed in the exceptions of the rule because the harm to the hostages was not as little as possible. Consequently, the answer of STP, as well as DDE, is that it was impermissible for the Russian army to pump a poisonous gas into the Theatrical Center in Dubrovka. Before determining which theory better explains its answer, however, let’s consider another case. The Jaque Operation On July 2, 2008, a military operation rescued, without any fatalities, 15 hostages that had been kidnapped 10 years prior by the Revolutionary Armed Forces of Colombia (FARC). The “success” of the operation was explained because of the intelligence of the Colombian army infiltrating and deceiving the revolutionary group until the liberation (Padgett, 2008). The deception included various acts of confusion as follows. First, the Colombian army created a false NGO, using information from a real organization called Global Humanitaria (“Global Humanitaria,” 2013). Second, the military helicopters that transported the rescued commando and the hostages were painted with the same colors of the helicopters that Venezuela uses for humanitarian help (“Helicopter used to Trick the FARC Guerillas in Operation Jaque Side,” 2008). Third, one of the members of the commando unit employed the symbol of the Red Cross emblem, pretending that he was a member of that organization (Penhaul, 2008). Finally, some of the soldiers of that commando unit pretended to be journalists from a Venezuelan TV station called TeleSUR (Jimenez, 2008). Even though this recue seems to be a brilliant operation of military intelligence, morally speaking, one could still ask: was it permissible for the Colombian army to deceive the FARC in order to rescue 15 hostages? Using the same general argument as in the previous case, DDE would affirm that the liberation of the hostages was a 2

The objective of this paper is not to discuss the accuracy of those principles. The formulation of it follows Scanlon’s formulation of the principle that protects non-combats in war (Scanlon, 2008, p.28). Notice that the last part of this principle nicely coincides with one of the concerns of Amnesty International in the Moscow case: “whether the use of gas ‘was the proportionate response and within the law’ to end the hostage crisis” (qtd. in “Rights Group Demands Siege Inquiry” 2002).

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good end. CQ2 requires a more detailed analysis, however. Was the deception of the operation morally acceptable? It is plausible to state that it is better to deceive your enemy than to use military force to destroy him. Therefore, it seems that it was morally acceptable for the Colombian army to deceive the rebels. However, there is at least one type of deception that is explicitly banned in time of war, namely, the inappropriate use of the Red Cross emblem. The First Geneva Convention states, Art. 44. … the emblem of the red cross on a white ground and the words “Red Cross” or “Geneva Cross” may not be employed, either in time of peace or in time of war, except to indicate or to protect the medical units and establishments, the personnel and material protected by the present Convention and other Conventions dealing with similar matters. (International Committee of the Red Cross 1949) Thus, it seems that the use of the Red Cross emblem by the Colombian army was morally unacceptable. Now, the legal material just quoted regulates conventional wars, but does it similarly regulate the war against terrorism? In accordance with Walzer’s account, the Convention does not necessarily apply to the later wars. “‘War’,” Walzer claims, “is a metaphor here, but real war is a necessary part to which the frequently invoked doctrine of ‘just war’ applies; we will have to look for other, though not unrelated, kinds of ethical guidance on the other fronts” (Walzer 2004a, p. 136). As was pointed out above, one of the features of terrorism is that it does not discriminate between combatants and not combatants (i.e., civilians) against innocent people in its attacks. Thus, according to Walzer, when attacking terrorists, we should “take risks ourselves in order to [reduce risks on the civilian population]” (Walzer 2004a, p. 136). The commando in the Jaque operation took that risk and thanks to the aforementioned deception, they were close enough to react in protecting the hostages in case their lives were at risk. The bad upshot in this case is the way in which future humanitarian help could be put at risk because the emblem of the Red Cross could lose credibility. Such a bad upshot was not part of the Colombian army’s concern; for what they ostensibly wanted was to liberate the hostages through the mentioned deception. Finally, it was proportional to deceive the guerilla in order to liberate 15 hostages because the freedom of the civilians and the Colombian society was more important than telling the truth to the kidnappers. In other words, in the balance between the cost of the liberation deceiving the FARC and the cost of not telling the truth (or the right to not be deceived), it is clear that the liberation is more important than the confidence this group could have in the Colombian government. This explains the attitude of the Red Cross in the case accepting the explanations and the official apology of the Colombian government (“Colombian Soldier Wore Red Cross Logo in Hostage Rescue” 2008). A contrary conclusion will be drawn from STP. From this alternative perspective, the principle ruling the case is: In a hostage crisis, one is sometimes permitted to deceive in a way that would normally be prohibited. But such deceiving is permitted only when its use can be to bring some advantage that allows the liberation of the hostages, and if this deceiving does not put the help that is provided by the Red Cross in the future at risk. After all the antecedent considerations, it is clear that this case cannot be subsumed in the exceptions because it violates the prohibition of using the Red Cross emblem. Hence, according to STP, the Colombian army’s intervention was impermissible.

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What is the Best Explanation for Permissibility? It seems that DDE is a better explanation of permissibility than STP. Two conjoined arguments support this idea. This is the logical scheme of the first argument: P1: DDE includes more elements in its explanation than STP. P2: If a theory explains more elements than another rival theory, then the former offers a better explanation. C: Therefore, DDE is a better explanation of permissibility. P1 requires factual confirmation. This is supplied if we notice that while STP only explains the evil, (by the use of the principle, and its exception), DDE explains the evil and the way in which the agent adjusts his conduct to that evil. When we have two similar explanations of the same phenomenon and one of these explanations captures more elements of the same object of study, this explanation tends to be better. This is the justification for P2. Evidently, this is not only a quantitative problem. In light of this argument, then, it seems that the elements included by DDE constitute a better explanation of the cases being considered. The second argument could be considered as an application of Ockham’s razor. In accordance with this well-known principle, when we have two alternative explanations, it is preferable to choose the parsimonious account. That is to say, the most economical system is favored. Such a preference cuts in favor of DDE rather than STP. The reason is that STP requires a different moral principle for each action evaluated, and that is a normative multiplication beyond necessity. This unnecessary complication is confirmed by Scanlon’s criterion for determining what principle would rule a specific action: In deciding whether to accept a principle, we are of course centrally concerned with the way in which the actions it would allow would affect us. It would, for example, be reasonable for us to reject a principle that did not require others to take the fact that an action would cause us serious harm as a strong, indeed normally conclusive, reason against the action (Scanlon 2008, p. 50). The extended range of action of this standard added to the exigency of finding a principle for each kind of action that is analyzed makes STP less economical that DDE. With only four necessary conditions, DDE is able to explain whether an action is permissible.

Scanlon’s Oversimplification of the Doctrine of Double Effect One question remains: if DDE seems a better explanation of permissibility, why does Scanlon, himself, not admit the explanatory virtue of this theory? I will argue that it is because Scanlon oversimplifies DDE. Let me provide support for this claim. Scanlon believes that DDE has two corrosive problems. First, in his understanding, no theorist of DDE explains why intention should be included in accounts of moral permissibility: “. . . to my knowledge no one has come up with a satisfying theoretical explanation of why the fact of intention . . . should make a moral difference” (Scanlon

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2008, p.18). Moreover, he considers that appealing to intention in order to explain moral permissibility is irrelevant. To illustrate this second point, Scanlon uses the following example: Suppose you were prime minister, and the commander of the air force described to you a planned air raid that would be expected to destroy a munitions plant and also kill a certain number of civilians, thereby probably undermining public support for the war. If he asked whether you thought this was morally permissible, you would not say, “Well, that depends on what your intentions would be in carrying it out, would you be intending to kill civilians, or would their deaths be merely an unintended but foreseeable (albeit beneficial) side effect of the destruction of the plant?” Holding an action be permissible if performed by an agent with one intention but impermissible if performed by an agent with a different strategy in mind? I agree with Thomson in finding this implausible. (Scanlon 2008, pp. 19–20) In response to Scanlon’s account, an efficient counter argument must both show that there is not the theoretical gap that he claims, and also justify the claim that intentionality is relevant for explanations of moral permissibility. This is the double effort of this paper. Regarding the first requirement, many have argued for the inclusion of intention in explanations of moral permissibility. Consider, for example, the following passage from Bratman: My theory of intention supports the commonsense distinction between intending some means and merely expecting some side effect. To see why, recall three roles of intention that have been central to the discussion so far. Two of these roles concern the relation between future-directed intentions and further practical reasoning, and they pertly constitute the reasoning-centered dimension of commitment. There are the roles of intentions in posing problems for further reasoning and in constraining other intentions. The third role concerns the relation between intention and endeavoring and partly constitutes the volitional dimension of commitment. This is the tendency of intention to issue on corresponding endeavoring. (Bratman 1987, pp. 140–41) This suffices to show that Scanlon’s first point lacks foundation. Let’s move on, then, to the second requirement. In Scanlon’s aforementioned example, the moral character of the action is quite different depending on the particular scenario. Consider two such possibilities: (a) Terror Bomber (TB): the commander intends to kill some civilians eroding the public support for the war; (b) Strategic Bomber (SB): the commander intends to destroy a munitions plant, and he merely foresees the death of some civilians. The variation in the moral character of each perspective is clarified by Bratman’s three roles of intention quoted above (Bratman 1987, pp.140-42). First, each intention poses different problems for the agent. For instance, in TB, the commander’s problem is: How am I going to kill the civilians? With that in mind, the commander will figure out what time of the day to attack, what sorts of bombs to use, when there will be the appropriate civilians together in one place, and so on. On the contrary, for SB, killing the civilians does not play any role in the equation to be solved by the commander. The second role played by intentions is the way in which they constrain secondary intentions. Suppose that TB’s

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commander considers ordering a certain troop movement, but then he notices that if the troops do move, his enemy will become alarmed and they will evacuate the civilians that the commander wants to kill. Therefore, the commander does not order the troop movement because it is incompatible with his prime intention. Alternatively, in SB, the commander will not be disposed to constrain his further intentions in killing the civilians. The final role is shown by the form in which the agent’s conduct is adjusted in accordance to his intention. For instance, if TB’s commander discovers that the civilian will be moved to a different place, he will try to keep track of them and take his bombs there. If he discovers that the building where the civilians are is heavily reinforced, he may decide to use a special kind of bomb, and so on. In contrast, the SB’s commander will just keep track of the munitions plant and its destruction. Indeed, if he focuses on the death of the civilians, he could lose sight of his objective. This is why it is reasonable that one demands for a minimization of the harm on the civilian in SB, but we do not expect that from TB (see Walzer 1977, pp.155–56). Scanlon could reply to this line of thought by arguing that what the three roles of intentions show is just a derivative use of intention itself: These factors are all clearly relevant to the permissibility of an agent’s action. But this way in which intent can be relevant to the permissibility of an action of an important sense derivative. What are of fundamental relevance in this case are the effects of the agent’s action on the world around her (or what it is reasonable to expect those effects to be). Her intention is relevant in the ways just described only because it tells us something about those effects . . . (Scanlon 2008, pp. 12–13) However, Scanlon can be rebutted by pointing out that DDE not only includes the factors mentioned by Scanlon, but it also includes actions. This is clear if we recall that the third function of intention is to adjust the agent’s conducts in accordance with the end (Bratman 1987, p.141). If an agent’s conduct is “guided by evil,” he will act to produce that evil, all things equal. In conclusion, then, when Scanlon states both that no theorist of DDE explains the relevance of intentions for accounts of moral permissibility and that there is no difference between one explanation that includes intention and another that does not, he reduces the scope of action of DDE. There are several substantial arguments that justify the importance of intention in explanations of moral permissibility. Indeed, given the impact that a bad intention can have on human actions, the action is ostensibly different whether it is guided by a bad intention or not. Consequently, the explanatory power of DDE is greater than that of STP.

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