Liability to Attack: Precision and Transparency

Heather Roff discusses epistemic challenges of an individualist account of just war theory.

One of the primary assumptions of an individualist account of just war theory is that one’s status or membership in a class, group, or nation is not sufficient to make one liable to attack. Rather, one only becomes liable to harm by some action that compromises one’s immunity or protection from attack. This action, such as materially contributing to an unjust threat through actively fighting, suborning, even perhaps engaging in risky or negligent behavior, determines whether a particular individual may be permissibly harmed. Thus rather than looking to whether one wears a uniform or belongs to a non-state group, one must determine how an individual’s actions—and perhaps intentions to act—contribute to an unjust threat.

On its face, this theory comports with common sense. When we see someone undertaking an unjust or wrongful act, we think that it is this person that ought to be thwarted from pursuing it. If in the course of stopping or impeding that attack the person is harmed, we tend to believe that this is in fact morally permissible, if not absolutely justified. The commonsense account, however, tends to prey on our assumptions about what sorts of evidence we need to make a judgement that a person’s contributions or plans to unjustly hurt another – who has immunities and protections against such harm – is sufficient to use (potentially) harmful coercion to hinder her. Indeed, we seem to construct a simple case of someone actively harming another. However, things get tricky when we begin to ask questions about someone’s intentions or contributions that are below this bright line threshold of active harm.

In these instances, which I will call sub limina (or below the threshold) we face difficulties of quality, kind, duration, intensity, scope, and aggregation of activities or even mental states that may render one liable to harm. In short, we face a serious problem of “gray area” judgements about when to impose (lethal) harm on individuals who may or may not be liable because we have difficulty determining when and under what circumstances liability arises.

This problem is not merely an empirical question. Rather, it is a normative one. Unless a moral theory can discuss categories, boundaries, and thresholds then one cannot adequately employ the theory in the real world.

oreover, without these demarcations, the theory is insufficient because it either includes too much or too little. For example, if a theory of individual liability to harm includes my mental states, then I may be liable to such harm if I merely think about posing an unjust threat to another. Or, perhaps, I become liable to harm because, through no fault of my own, my failed state is run by a criminal gang that unjustly attacks a neighboring state. While the individualist account would claim that my membership does not make me liable to harm, one could still easily claim that my material contribution to the state—such as paying taxes or continuing to reside within its borders—is sufficient contribution to make me liable. The details between what I can be held liable and not liable for become murky when we begin to slice into the finer details.

One might object that I am overthinking things here, but I would respond that these very fine grained details are the ones that matter most, especially for an account of the individualization of war. This is because the terms “civilians” and “combatant” are dependent upon those very details and not whether one wears a uniform. Obtaining these details requires, then, more than a quick glance at what one is wearing or where one is residing. It requires obtaining massive amounts of intelligence about the behaviors, intentions, affiliation, and beliefs of almost everyone. In short, to truly fight an individualized war, it requires “total information awareness”.

This is different than knowing whether one side is the just or unjust attacker, for it may be that those unjust attackers are coerced into fighting and thus morally excused and protected from harm. Rather one must find, and then attack, only those liable to harm. This would require a massive surveillance infrastructure that goes beyond aerial occupation through Predator and Reaper drones. It even surpasses present day capabilities of major powers’ intelligence agencies and militaries combined.

The conclusion, rather worryingly, is that a completely individualized war would destroy any division between public and private life. All actions, all plans, and all intentions or beliefs would need to be made transparent to not only one’s state, but also any potentially attacking state (or non-state). For then, we would not suffer from epistemic limitations; we would know exactly who is and who is not contributing to an unjust threat, how, and to what extent. Only complete transparency would permit such a process to function.

(Un)Fortunately, no person, let alone state, desires such a state of affairs. Despite the best efforts of modern intelligence and defense agencies to monitor all internet traffic, phone calls, text messages, and patterns of life, states work very hard to conceal their actions from others (and one hope’s their citizen’s privacy as well). Thus because of the fact that we will never live in a completely transparent society, individualization requires deeper philosophical work in the “gray areas”. We need to urgently consider the questions pertaining to sub limina forms of action, intent or belief if we are to have a robust account of just war.