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Abstract
The article addresses three aspects of the humanitarian intervention doctrine. It argues, first, that the value of sovereignty rests on the justified social processes of the target state – the horizontal contract. Foreign interventions, even when otherwise justified, must respect the horizontal contract. In contrast, morally objectionable social processes (such as the subjection of women) are not protected by sovereignty (intervention, of course, may be banned for other reasons). In addition, tyrants have no moral protection against interventions directed at them. Second, the article addresses the internal legitimacy of humanitarian intervention. It concludes that the liberal state may only use voluntary soldiers (either the voluntary army or mercenaries) to conduct humanitarian intervention. Conscription for that purpose is not permissible. The article shows that the long-standing criticism of mercenaries stems from a romantic prejudice and is thus unfair. Third, the article makes a distinction between intention (the determination to perform an action) and motive (a further goal that the agent seeks with that action) and shows that only intention is relevant for humanitarian intervention. A justified humanitarian intervention requires the intention to liberate the victims, but not necessarily a good further motive. It shows how mainstream doctrine has impermissibly confused the two concepts.
Notes
1. For a full treatment and references, see Tesón (Citation2005a).
2. In what follows I discuss the moral legitimacy of humanitarian intervention, although I will make passing references to international law.
3. See the discussion in Tesón (Citation2005a). I borrow the distinction between horizontal and vertical contract from an early article by David Luban (Citation1980). My formulation is somewhat different.
4. Those reasons will be captured by the principles of proportionality and the doctrine of double effect. See the discussion in Walzer (Citation2006). CitationLoren Lomasky and Fernando Tesón (undated) propose a different version of the doctrine.
5. The issue was first addressed by Allen Buchanan (Citation1999).
6. Perhaps, as CitationArthur Ripstein argues, ‘in extreme circumstances when ordinary arrangements break down, extraordinary demands may be placed on individuals who are selected for no better reason than their availability’ (2000: 777-8, n. 25).
7. Henry Sidgwick (Citation1908: 173) offers a utilitarian rationale: ‘Still I conceive that where compulsory military service is rightly introduced, the decisive reason in its favour is the economic reason, that the army required is too large to be raise by voluntary enlistment except at a rate of payment which would involve a greater burden in the way of taxation than the burden of military service’.
8. Compare the viewpoint of Tesón (Citation2003: 123-8), arguing that the government must first resort to a voluntary army to dispatch a humanitarian intervention, and only if that turned out to be insufficient could it resort to conscription. For the reasons in the text, I now believe that conscription is not available for humanitarian intervention, regardless of whether or not it is available for self-defense.
9. CitationJohn Rawls (1971: 380) disagrees. He writes that ‘conscription is permissible only if it is demanded for the defense of liberty itself, including here not only the liberties of the citizens of the society in question, but also those of persons in other societies as well’.
10. It does not totally eliminate the conscientious-objector problem: a soldier who has agreed contractually to fight may still in good faith believe that the cause is unjust, and that belief may conceivably override his contractual obligations. Any law allowing conscientious objection must detect the bona fide objectors and distinguish them clearly from opportunistic free riders.
11. The law of war reaffirms this contempt: Article 47 of the Additional Protocol to the 1977 Geneva Conventions denies mercenaries the right to claim prisoner of war status. Of course, the word ‘mercenary’ is already loaded, as it denotes especially greedy people who will only work for a price.
12. CitationGuido Pincione and Fernando Tesón (2006: 50-3) characterize the tendency to romanticize certain professions over others as a form of discourse failure.
13. This section closely follows the discussion in Tesón (Citation2005b).
14. The ICISS Report (2001: xii) summarizes dominant thinking: ‘The primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering’.
15. Thus, for example, in 1983 the U.S. administration expressly refused to rely on the doctrine of humanitarian intervention to justify the intervention in Grenada. See Dam (Citation1983).
16. See Mill (Citation1998: 65, n. 2). This note is so important that it is worth citing at length. Responding to a critic Mill writes:
I submit, that he who saves another from drowning in order to kill him by torture afterwards, does not differ only in motive from him who does the same thing from duty or benevolence; the act itself is different. The rescue of the man is, in the case supposed, only the necessary first step of an act far more atrocious than leaving him to drown would have been…Mr. Davies [one of his critics], by an oversight too common not to be quite venial, has in this case confounded the very different ideas of Motive and Intention. There is no point which utilitarian thinkers (and Bentham pre-eminently) have taken more pains to illustrate than this. The morality of the action depends entirely upon the intention – that is, upon what the agent wills to do. But the motive, that is, the feeling which makes him will so to do, when it makes no difference in the act, makes none in the morality: though it makes a great difference in our moral estimation of the agent, especially if it indicates a good or a bad habitual disposition – a bent of character from which useful, or from which hurtful actions are likely to arise.
17. I owe the discussion in the next two paragraphs to Michael Ridge (2002).
18. Nardin (Citation2005) makes a similar point (although not relying on Mill). I do not take sides on the question whether the motive is defined as a desire, a disposition, or a feeling (as Mill prefers). It is enough for purposes of my analysis that the agent does X, intending to do X, thinking that X will enable him later to reach outcome Y. Be that as it may, Nardin and I agree that ‘a humanitarian act is defined by its intention, not by its motive’.
19. For a defense of the view that right intent is demonstrated by the intervener's overt acts, see Cole (this issue).
20. Vaclav Havel, address to the Canadian legislature, April 29, 1999.
21. See, e.g., the statements by the representatives of Slovenia and Bahrain (Krieger 2001: 425-6).
22. See the balanced and interesting report on the wake of Kosovo by Pierre Sané, Secretary-General of Amnesty International, available at http://web.amnesty.org/report2000/fore (Amnesty neither supports nor opposes humanitarian intervention; but challenges the view that one has to choose between intervention and inaction).