Intentional Content and Non- Combatant Immunity: When Has One Intentionally Killed a Non-Combatant?

Abstract

Just war theory forbids intentionally killing civilians but allows killing them as side-effects. The question thus arises whether when a combatant believes the person he is killing is a civil- ian, or believes the person might be a civilian, the combatant is intentionally killing a civilian. This article examines Jeff McMahan’s and Adil Haque’s answers to these questions, and argues that their analysis fails to engage fully with the underlying question of representational con- tent. The article sets forth a theory of the boundaries of intentions, arguing that the critical inquiry is what other senses the actor ascribes to his intentional object. For results – such as bombing a factory that will kill children in a nearby school, this means those results that are either conceptually or empirically entailed in a way that the actor cannot imagine one result occurring without the other. For circumstances – such as killing this person whom the agent believes to be a civilian, this approach yields that known circumstances fall into the content of the intention because the agent understands he is acting upon this person or this thing. The article then examines Gideon Yaffe’s approach whereby he claims that one may intend cir- cumstances or results to which one ascribes a probability, when the circumstance/result is particularly salient to the actor. This paper rejects Yaffe’s view that these recklessness cases may be instances of intention. It then claims that when the agent believes a circumstance may exist, even to a high probability, because he is reserving judgment as to whether that descrip- tion applies to his intentional object, that description is not another meaning that he ascribes to his intentional object and is therefore not intended.