Justifying the role of intervening soldiers: tackling ‘internal legitimacy’

In his well-known article, ‘The Internal Legitimacy of Humanitarian Intervention’, Allen Buchanan examines the legitimacy of domestic constraints upon would-be intervening states.Footnote ¹⁰ Buchanan's aim is to delineate a moral world-view in which states could conceivably have an obligation to intervene in humanitarian disasters, and as a precondition for doing this he must first free states of an obligation to act only in the clear and direct interest of their own citizens. ‘[U]nless humanitarian intervention is internally legitimate’, he writes ‘the imposition of a duty of humanitarian intervention would itself be a moral wrong.’Footnote ¹¹ Because states have, at least in the liberal West, traditionally been conceived as mutual benefit associations formed around a social contract, the dedication of state resources to the interests of non-participants can be seen as a transgression of the constitutive purpose of states to which their citizens have explicitly or tacitly agreed.Footnote ¹²

For Buchanan, the internal legitimacy of a state's participation in humanitarian intervention is resolved by positing that such interventions constitute a legitimate manifestation of the citizens' ‘natural duty of justice’ – a duty to attempt to ensure that all human beings live under just conditions. States can participate in humanitarian actions because their citizens have a natural duty to help non-citizens, which means that states are properly viewed as instruments of justice, which means that the state is not morally prohibited from expending state resources on non-citizens.

However, a supposed duty of states to intervene does not follow, without argument, from a natural duty of justice that obtains among individuals. Furthermore, it is one thing to assert the general principle that people have a duty to attempt to ensure that others live under conditions of justice; the assertion that each person must be ready to give his life in the course of such attempts is a far more demanding claim. Humanitarian intervention need not always be military, but its accepted definitions certainly include military interventions, and for most people such interventions constitute the ‘hard case’ worthy of moral, legal, and political justification.Footnote ¹³

As Buchanan himself rightly and repeatedly acknowledges, the natural duty of justice which he proposes is qualified by an excessive cost proviso.Footnote ¹⁴ He writes that: ‘[T]here are limits on the costs that the citizens of one state must bear to protect the rights of other persons’.Footnote ¹⁵ Obviously, a great deal of the moral weight of this natural duty to help rests upon how one defines excessive costs. However, without attempting to specify exactly where this limit on the costs that the citizen must bear lies, it seems reasonable to expect that it falls somewhere short of demanding that he be willing to make the ultimate sacrifice.

If a state has a duty to intervene militarily to save foreigners, then the state has the duty to provide the soldiers needed to carry out that task, some of whom might be expected to die. If the state could not provide those soldiers in a voluntary army, its duty to intervene would imply that it should conscript to do so. Therefore, for a state to acknowledge or endorse a duty of humanitarian intervention would be internally illegitimate in that it would constitute forcing unjustifiably excessive costs upon its own citizens. Acceptance of a generally obtaining natural duty of justice among human beings of the sort that Buchanan proposes does not establish the moral legitimacy of the state's taking actions that would put its soldiers at lethal risk. Not only is it wrong to impose upon states a positive duty to intervene militarily, states also cannot legitimately intervene voluntarily, except in the case where the soldiers participating have enlisted with the willingness to risk and make the ultimate sacrifice in the course of a humanitarian operation.

My position here does not prohibit the state from making other, non-military, contributions to a given intervention. Buchanan's argument does clear the moral ground for a state's expending financial and technological resources on behalf of non-citizens. At the very least, it is plausible that a democratic populace could select leaders who promote policies that provide the economic resources necessary for an intervention, in the same way that they promote general policies of foreign aid, without violating criteria of internal legitimacy. Indeed, even those who support strong patriotic biases for the expenditure of state resources often observe that there are moral limits to such biases.Footnote ¹⁶ But once again, we can draw a distinction between forcing some citizens to unwillingly give tax revenues to provide for the basic needs of foreigners and forcing citizens to risk their lives for foreigners (or for anyone at all). The ultimate sacrifice ought not be coerced, and for a state to accept a duty of military intervention, or to embark on such an intervention with a military that does not consist of soldiers who have volunteered knowing that they may be asked to risk their lives for humanitarian ends, is morally illegitimate.Footnote ¹⁷

If one accepts this position, then the search for a perfect duty of military intervention – possessed by individuals or states – is futile. It is simply not true that we each must be willing to give our lives at any point when there is another person in need. It may be that we have a duty to aid in other ways, that we have a duty not to be indifferent to the plight of other human beings, but we do not owe it to each other to give up our lives, no matter how valorous it is for us to do so. Advocates of humanitarian intervention very clearly see the lives and rights of human beings as the end worth saving; we must attempt to see equally clearly that the lives of human beings will be risked by engaging in military humanitarian intervention. The choice of an individual to risk his life in order to defend the life and basic human rights of another may be so obviously good as to be beyond objection, and yet it must still be his.

Forcing people to do good

The conclusion that there exists no general obligation to risk one's life in defence of humanitarian aims is a frustrating one for liberal interventionists. Fernando Tesón, near the end of an impressive moral argument in favour of humanitarian intervention which holds the rights and lives of oppressed peoples as paramount to state sovereignty, rejects arguments such as mine, which he labels (wrongly, I think) as libertarian.Footnote ¹⁸ Tesón asserts that: ‘If libertarians are right, humanitarian intervention is wrong, not because dictators are or should be protected by international law, but because governments cannot validly force people to fight in foreign wars.’Footnote ¹⁹ But here Tesón mistakes a rejection of means for a rejection of ends. My view does not hold that humanitarian intervention is wrong, quite the contrary it holds that it is (potentially) morally endorsable, and for the same reasons that forcing someone to sacrifice her life is wrong: because liberal morality holds that individual human life, including the capacity to live an autonomous and ethical life, is the highest moral end.

In truth, though Tesón claims to reject the ‘libertarian’ view, he ends up accepting a weak form of its insight, suggesting that governments ought to use voluntary soldiers before conscripting anyone to participate in an intervention.Footnote ²⁰ Tesón justifies conscription as a necessity by appealing to an economic model that suggests that foreign intervention, like national-defence, might turn out to be an under-produced good if left to voluntary action. Thus, ‘the power of the government to draft soldiers for humanitarian intervention is necessary in order to block opportunistic moves ex post.’Footnote ²¹ In brief, such a view permits the use of human lives as a means, and allows the members of a society in which a generally applicable imperfect duty to aid others exists to transform that imperfect duty into a perfect and absolute one for some among them. This, in my opinion, consists of forcing people to do more than their duty. Moreover, Tesón's characterising of those who choose not to give their lives for a humanitarian cause as ‘opportunistic’ seems to imply that there are no good moral reasons for a person's caring about self-preservation. In contrast, I argue that self-preservation must be seen as a moral right, grounded in the same end that leads to our moral desire to save other people from death.

Soldiers who voluntarily enlist knowing that they may be ordered to engage in combat for a variety of causes may be rightfully ordered to do so, (so long as the causes themselves are not obviously at odds with justifiable moral ends of war). Where I cannot meet with Tesón is in his claim that if people do not voluntary agree to give up their lives to save others, they ought to be forced to do so. And this objection holds whether the others in question are compatriots or not.

Like Buchanan's, Tesón's argument is incomplete because he wants to find a way for a state (or group of states) to legitimately send its military – its whole military – into humanitarian missions without first establishing criteria for the just raising of a military force, criteria that would protect the rights of citizens of the intervening state(s). Tesón is concerned to assert the legitimacy of state action. But his task, like that of Buchanan, would be better served by taking the starting point implied by his fundamental moral commitment to human rights: the individual. In order to get a complete moral picture of humanitarian intervention, humanitarian intervention needs to be reconceived as an action that is taken not only by states, but also by individuals.

Reconceiving humanitarian intervention

For as long as we see humanitarian intervention as something that is done exclusively by states rather than as a morally relevant action taken by individual soldiers and coordinated by a just state or group of states, we must continually ask the question ‘even if it is a worthwhile cause, why is this just state or group of states allowed to intervene and thereby risk its own soldiers?’ However, if we reconceptualise humanitarian intervention as, in part, action taken by individuals who agree to risk the ultimate sacrifice on behalf of the human rights and lives of others, then we can avoid the constant burden of justifying the state's action in terms of its obligations to its soldiers. Not only that, our focus is more appropriately centred on the moral heroism of those soldiers, mirroring the attention that we give to the oppressed persons in the intervened country.

Solidarists and pluralists are both likely to have misgivings about such a reconceptualisation.Footnote ²² On the one hand, pluralists are likely to question the thickness of the moral relationship between individuals divided by geography, culture, language, and history. To see humanitarian intervention as a manifestation of a moral relationship between the savers and the saved is to see a thicker sort of moral connection than many pluralists (even those with solidarist hopes for the world) think empirically possible, and perhaps a thicker sort of relationship than pluralist particularists think morally ideal.

For solidarists, for those who believe in a future with universally acknowledged human rights protected by a powerful and reliable coercive force, to relinquish humanitarian intervention to the bonds between individuals is to relegate the task of defending human rights to the fickle nature of individuals' own perceptions of moral relationships across borders. For those who want to defend not just a right but also a duty to intervene (or, as Walzer does, something between the two), my reconceptualisation may be seen as threatening the potential role of states in ensuring that such duties are effectively and promptly fulfilled. Indeed, Buchanan's eventual forward-looking suggestion of international legal institutions that would assign responsibility for specific interventions to specific states, thereby transforming imperfect duties into perfect ones, would be subject to serious questions about moral legitimacy if one adopted my view.Footnote ²³ Similarly, to Nicholas Wheeler's claim that ‘[a] solidarist conception of ethical statecraft requires state leaders in exceptional cases of supreme humanitarian emergency to risk, and if necessary lose, soldiers’ lives', one would have to respond that the decision to risk soldiers' lives is not within the scope of legitimate action available to leaders, be they solidarist or not.Footnote ²⁴

My moral argument does not preclude political and legal solutions to the key problems surrounding humanitarian intervention – questions of who can intervene, when, where, why, and how – that assign a role, perhaps even a principal role, to states. I do not argue that we should see humanitarian intervention as only an action that turns on the relationships between individuals across borders. There remains a role for states to play. For example, states are responsible for organising and coordinating military force, for building the international institutions in which the legality and legitimacy of potential interventions is debated, for providing the intelligence upon which assessments of probability of success are grounded, and indeed, for authorising the use of force, either directly or indirectly through institutions. However, the roles that states can play ought to be constrained by the moral insight that humanitarian interventions are a form of targeted violence in which human lives are risked and sacrificed for the sake of defending human lives and rights. At its core, humanitarian intervention is not a case where one state is allowed to ignore the sovereign rights of another, but where individuals along with their states are allowed to reassert the priority of basic human rights over state sovereignty, and the dependence of the value of the latter upon the protection of the former. Moral thinking about humanitarian intervention has suffered because humanitarian intervention has been viewed through the paradigm of interstate war. Humanitarian intervention is seen as an exception to the dictum that states may not prosecute aggressive wars against each other. But the proper way to see humanitarian intervention is not as a war by one state (or group of states) against another, but rather as a war of international society, including both states and individuals, against international villains.

Whose rights, whose responsibilities?

This reconceptualisation has a bearing upon the first major set of questions that I raised in the introduction about whether humanitarian intervention is a right or a duty, and whether it belongs to states or to individuals. The right to intervene, to transgress the supposed-sovereignty of a state governed by a tyrannical regime arises out of a general, imperfect duty to aid those in need. Another way of saying this is that it arises out of the human rights of the oppressed, for believing in their human rights entails believing that they also have a right to have those rights defended if a willing defender is available. (Believing in their rights may also entail a commitment to do all that is morally possible to see that they are in fact defended). The moral right to intervene is grounded simply in the moral relationship among persons that logically follows from the humanistic moral values at the centre of liberalism. The moral right to intervene, that is, the right to disrespect sovereignty claims in the case of humanitarian disaster, therefore, can be seen as being held by international society in general, where international society is seen to include individuals and states, and even, I am inclined to think, non-state actors. It is a general right to protect the basic human rights of those in need of such protection.

However, the right to commit individual soldiers to the risky business of intervention is a right that lies with the soldiers themselves. Therefore the right of a state to order its military into a humanitarian mission is grounded in its citizens' willingness to risk the ultimate sacrifice for such ends. The leaders of a state, knowing that there is a situation that merits humanitarian intervention, may have a moral obligation to attempt to persuade their citizens to volunteer to carry out such an intervention. The citizens themselves may be seen as having a similar duty to attempt to persuade each other that the proposed intervention is an end worthy of risking the ultimate sacrifice. But there is no enforceable duty that requires citizens to enlist for humanitarian missions.

Now, to allow any agent to exercise at its discretion the right of humanitarian intervention not only risks having agents make bad decisions about which interventions really will do more good than harm, but is itself a threat to the current system of ensuring international political order and protecting the lives of those who live under it. Thus, for international law to declare that legitimate interventions must take place under the auspices of a state or international organisation is morally desirable. Humanitarian intervention is rightfully seen, then, to be legally a kind of state action. However, morally it remains an action of international society as a whole, and the legally-sanctioned, state-organised practice of humanitarian intervention only remains morally legitimate so long as it does not betray the implications of this fact.

Good and bad critiques of Kosovo

In the wake of the NATO intervention in Kosovo in 1999, many commentators who were willing to endorse the NATO intervention itself as technically illegal but (morally) legitimate, nonetheless went on to criticise the way in which NATO went about intervening: NATO's all-air assault, it is claimed, was inadequately discriminate and therefore the means with which that humanitarian war was fought undermined its ends.Footnote ²⁷ Such criticisms lead to the question: ‘Does not humanitarian intervention entail a responsibility to ensure that the methods used are appropriate for the achievement of the objectives sought?’Footnote ²⁸ I do not want here to dispute the facts of the Kosovo case. Instead, I want to consider what certain lines of moral critique and certain strategic choices must assume in order to be consistent with good moral reasoning about the ethics of war.

One of the main sources of controversy over the ethics of the means of humanitarian intervention has been the tendency of intervening forces to adopt strategies of ‘casualty aversion’ and ‘force protection’. In general, such strategies can be defined as strategies of war-fighting selected by military leaders, at least in part, for their potential to limit casualties suffered by their own troops. A prominent set of arguments against NATO's aerial attack on Serbian forces in Kosovo is that it constituted a strategy of casualty aversion that was pursued at immense moral cost in the form of unnecessary and indiscriminate killing of Kosovar and Serb civilians.

It is worth quoting one version of Michael Walzer's critique of NATO action in Kosovo at length.

Walzer's central assertion in this passage is that ‘you can't kill unless you are prepared to die’. The false simplicity of this claim is easily overlooked because of the self-evident (but not entirely consequent in the way Walzer would have us believe) point that we should not see certain human lives as expendable while others are held precious.Footnote ³⁰ Though he uses the word ‘can’, Walzer offers his dictum as a moral position, and therefore it might better be understood as ‘you may not kill unless you are prepared to die’. Such a claim misses the fact that while the justifications for killing and dying may be connected through a common end, they are not inseparable. Assuming that Milosevic and the Serbs complicit in ethnic cleansing had forsaken their right against attack through their actions, anyone might have been justified in killing them to prevent further wrongs. If it were possible to kill an attacker and thereby save his victim without taking on any risk to oneself, it would certainly be permissible.Footnote ³¹

The error in Walzer's main claim reflects a similar mistake in many of the critiques of casualty aversion policies. There is nothing wrong, per se, with a military commander attempting to protect his troops as long as he can still do this without compromising the success (in all senses) of his mission. Indeed, this is what we would want him to do. ‘No one would want to be commanded in wartime by an officer who did not value the lives of his soldiers’, as Walzer writes elsewhere.Footnote ³² Yet arguments like Walzer's above abound, and they seem to have led to some kind of strange fetishisation of military deaths – if soldiers do not die, it seems, then the war was not real, the soldiers were not courageous, their actions were not just. As Charles Dunlap has argued, ‘[m]any have incorrectly reverse engineered the bloodless outcome to impute an absence of martial virtue.’Footnote ³³

There is nothing wrong, in principle, with a military operation in which no soldiers die. If an air attack were the most discriminate, most effective way of fighting, and if such a war would meet the criterion of proportionality, then the fact that one can expect relatively few pilot deaths should be seen as good fortune, not as evidence that this is somehow not a proper military action. And if such a strategy were the best way of attacking, one could, contra Walzer, in theory, kill without being willing to die (or at least with a very low threshold for risk).

Thus, while Richard B. Miller writes that ‘[W]e should note that only two NATO planes were shot down, and no pilots died or were captured behind enemy lines. Hence the phrase “combatant immunity” to mock the priorities of the air campaign.’Footnote ³⁴ We should also note that this fact is only morally significant if one assumes – as Miller does – that the air attack was an immoral act because it failed the jus in bello criterion of double effect. (Miller's condemnation rests also on a failure of double intention or what he calls ‘thick’ intention. I discuss the merits of this criticism below). Double effect could have been violated either if NATO planes specifically targeted civilians, or if the collateral damage, both direct and indirect (indirect collateral damage might be seen in this case as the acceleration of the ethnic cleansing by Serbs), meant that the unintended effects of NATO action made it fail a proportionality test. Casualty aversion policies are not wrong because they prevent deaths to soldiers; when they are wrong, they are wrong because they prevent deaths to one group by unjustly causing them to others, or because they make the war itself inconsistent with just war standards.

Assuming that the NATO air attack was not indiscriminate and that it did not fail the test of proportionality, (that is, that it did more good than harm), it was not a morally reprehensible action.Footnote ³⁵ (Again, I do not want to dispute facts here – it may be that the assumption of discrimination and proportionality does not hold – in which case, we could condemn NATO's action as a contravention of jus in bello principles).Footnote ³⁶

Enabling double intention: casualty aversion and moral constraints

Even if NATO's strategy did not contravene accepted jus in bello principles it does not follow that it constituted the morally preferable means of intervention. We must be very careful to separate out two strands of moral critique of NATO's action: one strand says that what NATO did was wrong because it caused more harm than good and/or that NATO action was negligently indiscriminate; a separate strand argues that NATO's action was obviously not the best strategy for intervention considering the purported humanitarian ends of the military action. In both cases, the criticisms usually point to casualty aversion policies as the explanatory factor for why a morally wrong or morally non-preferable course of action was pursued. However, these are two very different moral claims, each resting on different but related sets of practical assumptions. One of the questions this distinction raises is how far we may say that it is a requirement of morality to choose the morally-best means in war, as opposed to merely choosing means that are not morally proscribed: are armies required to fight not merely without obvious injustice, but also with the utmost valour and virtue?

A brief detour is in order here. In what is commonly taken as the foundational text of contemporary just war theory, Walzer argues that the principle of double effect – that non-combatant deaths must not be intended, that any given action must be proportional, and that the proportionality test must take into account both intended and unintended but foreseeable consequences – is not stringent enough. ‘Simply not to intend the death of civilians is too easy’, Walzer argues; soldiers, qua soldiers, have a special duty of care to avoid involving non-combatants in their fighting, and this special duty of care means that not only must soldiers not intend to kill non-combatants, they must intend not to kill them.Footnote ³⁷ In other words, incumbent upon soldiers is not only a negative duty not to harm but also a positive duty to minimise harm that their actions cause. And, according to Walzer, this positive duty means that soldiers must sometimes take on more risk in order to reduce risks of harm to civilians.Footnote ³⁸

Following from Walzer (and expressing an almost identical position), Richard Miller (who describes it as ‘thick’ rather than ‘double’ intention)Footnote ³⁹ explains that:

Miller's commentary suggests that one of the reasons why the Walzerian principle of double intention is intuitively appealing is that it links the just means of war to the just cause of war. Without specifying that war should always be fought in defence of human lives and human rights, Walzer's principle forces us to accept that this end should always be at least part of the reason for going to war. In the case of an explicitly humanitarian war, the defence of human rights and lives is, of course, the purported aim of the war. In this case, Walzer's principle reminds us that each time a non-combatant's life is lost, a part of the war's aim is also forfeited.Footnote ⁴¹ Wars may never be perfect, but the proper ends of war may both justify its prosecution and demand that we always attempt to make it as good as possible. Thus, if we adopt Walzer's position that merely conforming to the proscriptions of double-effect is not enough, it follows that the means of war must not only be good enough, they must be the best possible means.

One of the things to notice about Walzer's principle and Miller's explanation is the way that the moral duty to take on risk in order to save civilians turns upon the moral personality of the soldier. In Miller's reckoning, it is because certain individuals choose to be soldiers that this moral obligation is assigned to them; it is a positive duty that inheres in a chosen role. Therefore, in order to impose such duties on soldiers we must believe that they are soldiers not just in the sense of being men and women with guns and planes and tanks, but soldiers in this moral sense: that they have accepted the general protection of innocent human life and rights as a positive purpose.

Let's return to the two strands of critique. The argument that NATO's action was not the morally preferable action rests on the practical counterfactual assumption that a ground war would have been more discriminate and would have entailed fewer civilian casualties, thus not only making the war's means more moral but also securing to a higher degree the ends for which the war was fought. If we assume, for the moment, that the air war did not contravene standards of discrimination and proportionality, the argument that NATO still ought to have pursued a ground war rests upon the practical assumption just stated as well as the moral assumption that the positive duty of double-intention was incumbent upon NATO forces, and that policies of force-protection or casualty aversion wrongly kept NATO from selecting the morally preferable (now arguably morally obligatory) strategy.

Many critics, and even some defenders, of NATO's apparent unwillingness to risk the lives of its soldiers have argued that policies of casualty aversion were politically motivated positions taken by NATO state leaders.Footnote ⁴² Because the leaders of NATO member countries had determined that their domestic populaces would not tolerate military action that entailed NATO casualties, a failure of political will, it is argued, kept NATO leaders from pursuing the moral course.

It is easy to see how the impetus for political self-preservation would have made casualty aversion an attractive principle to NATO leaders. However, it is worth considering the possibility that the political problem indicates and is connected to a deeper moral problem: if the soldiers in NATO's forces had not agreed to serve in humanitarian missions, then it would have been wrong to put them at risk in such a situation, to force them to risk their lives for a cause to which they had not committed themselves. In other words, rather than viewing casualty aversion policies as a politically motivated policy choice that traded Kosovar and Serb lives for NATO soldiers' lives, casualty aversion might have been depicted as a morally justified constraint upon possible NATO responses. Perhaps the best that NATO could do without morally wronging its own troops was to attempt to help from the safety of the air.

There are plenty of reasons to deny that this argument was even available to – much less deployed by – NATO leaders in defence of their chosen course of action. Despite the tenuous applicability of the moral argument, it may still be fair to say that the political pressures NATO leaders felt were somehow related to moral claims of this sort. Were these claims legitimate? Can we evaluate the moral quality of the politics that allegedly kept NATO from furnishing a ground war option? Both Henry Shue and Michael Walzer talk about the need to convince mothers and fathers to give up their children for humanitarian causes.Footnote ⁴³ It seems to me that, from a moral perspective, the critical conviction must lie with the soldiers themselves.Footnote ⁴⁴ They must be convinced that the cause for which they risk their lives is just and worthy of the ultimate sacrifice. If a soldier has volunteered for humanitarian missions, then convincing his parents to accept that decision may be politically but is not morally requisite, at least in terms of public sanctioning of the war.Footnote ⁴⁵ Nor is convincing his compatriots to let him fight a moral requirement (though it may be a political one). Just as the majority vote of the country cannot legitimately require the soldier to give up his life for something that he is unwilling to sacrifice for, so the majority cannot rightfully keep him from attempting to achieve a worthwhile aim at risk to himself.Footnote ⁴⁶ Therefore, if the NATO soldiers involved were willing to serve as soldiers in humanitarian interventions, then the alleged political unwillingness of NATO populaces to allow their soldiers to engage in life-threatening combat was not a morally justifiable political position (and NATO leaders may be faulted for not making this case). Casualty aversion policies could not be justified by reference to such politics.Footnote ⁴⁷

However, if the soldiers had been conscripted for such a mission, or had agreed when enlisting to risk their lives for reasons not including humanitarian intervention, then a public demand for casualty aversion policies might have been seen not only as a political expression of collective interests but also as expressive of a justifiable moral claim. Moreover, there may be a similar legitimate political objection to an imperfect or inadequate enlistment programme. If the American populace's resistance to US casualties in humanitarian missions stems from a collective understanding of the military as a tool of national defence, and if that collective understanding shapes the environment in which soldiers enlist, then there may be reasons to entertain arguments that even where soldiers' enlistment contracts do not technically exclude humanitarian missions, the common understanding of the purposes for which soldiers volunteer – which might reasonably be seen as part of background beliefs from which soldiers make their choice to enlist – does.

Criticisms of NATO's apparent failure to abide by a principle of double intention often either ignore the moral obligations of NATO countries to their own citizens and soldiers altogether, or they take for granted that the individuals in NATO's military force had been properly enlisted and therefore were soldiers in the full moral sense, and so were morally obligated to employ means that met criteria of both double effect and double intention. The critique that NATO paid too much attention to preserving the lives of its own cannot be properly buttressed with an argument that implicitly denies or ignores the rights of those soldiers to have their lives valued at all. Such arguments merely invert the wrong that they purport to declaim.

Humanitarian soldiers and the freedom to choose the best means

Once again, consider the potential claim that NATO leaders might have advanced: the war in Kosovo was a war of the government of Slobodan Milosevic against a segment of its own people. NATO was not a party to the actual war, it was an outside agent, and it was limited to such status by the fact that the soldiers in its participating militaries had not enlisted to save Kosovars. It took the most effective course of action that it could without wronging its own people, and this action met the criterion of double effect. The deaths of Kosovar and Serb civilians caused by the NATO bombing were regrettable, and every attempt, with the exception of a morally prohibited change of strategy that might put NATO soldiers at greater risk, was made to ensure that such ‘collateral damage’ was minimised. (A constrained form of double intention was thus in force). In essence NATO was acting as a weapon for the Kosovars in their battle against their own state. It may not have been the best weapon imaginable, but it was the only one available. NATO had a choice between taking no action at all and taking the action that it did, and, under the circumstances, the latter was the better option.Footnote ⁴⁸

As we have seen, such an argument obviously rests on a set of factual interpretations and assumptions. Moreover it clearly raises serious moral questions about the rights of Kosovar and Serb civilians. But the argument is not a ridiculous one. My purpose is not to defend it here, only to recognise that it is an important potential strand of the debate about the justice of NATO's action, and one that must be considered before we can endorse condemnations of the NATO strategy that included a policy of casualty aversion.

Even those who agree that soldiers should not be conscripted for humanitarian interventions might still disagree with the suggestion that NATO's alleged commitment to casualty aversion could have been thereby excused. Some might argue that, at least in the Kosovo case, the wrong done to civilians trumps the wrong done to soldiers who do not enlist for humanitarian purposes. Or, they might argue that no wrong is done until a greater number of soldiers have died than civilian lives have been saved by the riskier course. While such arguments may have merit, unfortunately they lead us down a path of weighing moral wrongs, perhaps on a case by case basis, a path which, when overlain with the politics of applied ethics, is unlikely to produce any firm or effective rules.

But there is a way to avoid this problem altogether, and that is to raise humanitarian armies to fight humanitarian wars. These armies would not be the national defence forces which states have up until now used in interventions. They could not be construed as third parties participating in a conflict of which they are not really a part. The men and women fighting in such conflicts would not be participants in humanitarian interventions, but soldiers in humanitarian wars. For compelling practical reasons their political commitments and chain of command may remain tied to their states, but their moral commitment would be explicitly to mankind as a whole, and the ends for which they are committed to fight and die would not be circumscribed by patriotic limitations but rather by the simple and straightforward cause of the defence of human lives and basic human rights. Such individuals would commit themselves to be soldiers in the moral as well as the material sense, they commit themselves to the principle of double intention and to taking on the increased risk that that principle requires in order to save the lives of non-combatants. The moral architecture of such a soldier's role and identity brings to the fore the fundamental connection between the soldier's rights and her responsibilities.

One overarching moral and political challenge that a situation like Kosovo raises for those committed to defending human rights and lives through intervention when necessary is how to transform national armies into humanitarian ones, and how to transform humanitarian interventions into humanitarian wars. The solution to this challenge arises out of the reconceptualisation of humanitarian intervention that I proposed above. It is only by seeing humanitarian intervention as an act in which not only states but also individuals are participants that we can ensure that such actions are taken according to standards of justice and, simultaneously, remove the constraints that conflicting moral obligations might otherwise impose upon the leaders of would-be intervening states.

More morally commendable interventions would come from a voluntary force that has explicitly committed to humanitarian missions. Absent such a force, casualty aversion strategies may effectively shield intervening states from claims by those of their soldiers who do not wish to risk their lives for strangers, but they also keep soldiers who would be willing to risk their lives from employing more effective (if riskier to themselves) means of rescuing human beings.

Thus, while some might see the claim that states should not send soldiers who have not affirmed a willingness to make the ultimate sacrifice for humanitarian causes into humanitarian missions as a restrictive criterion, I argue that it leads to an ultimately empowering political conclusion. Using an all-volunteer force in which each soldier has (ideally explicitly) agreed to serve in humanitarian missions, emancipates force commanders from the possibility of wronging their soldiers by exposing them to risks in order to achieve the war's aims. The kind of force that I describe is free of some moral constraints upon its versatility and more likely to effectively achieve the goal of protecting the lives and rights of oppressed people while minimising collateral damage.

Raising volunteer humanitarian armies would enable us to unambiguously and uncontroversially demand that soldiers abide by the dictates of double intention. As stated above, double intention requires that military leaders select means that are not only acceptable according to standards of discrimination and proportionality, but also that they select means that will save the lives of non-combatants, even if this requires additional risks to their own soldiers. As Walzer explains, when ‘military planners […] decide that the losses entailed by the attack, even if it is carried out at minimal risk to the attackers, are not disproportionate to the value of the target: then “due care” is an additional requirement.’Footnote ⁴⁹ I have argued that the reason that military commanders can and should impose the additional risks upon soldiers in order to save civilian lives is that the soldiers, by volunteering, have signalled their willingness to make the ultimate sacrifice for precisely that end.

Humanitarian soldiers, double intention, and double effect

Before concluding, it is worth addressing several potential lingering concerns. In embracing a duty of due care for non-combatant lives, we must be careful not to endorse an inversion of Walzer's accusation about treating some lives as expendable and others as priceless. We should not arrive at a position that soldiers' lives are expendable while civilian lives are not. As Walzer himself argues, ‘there is a limit to the risks that we require […] War necessarily places civilians in danger; that is another aspect of its hellishness. We can only ask soldiers to minimize the dangers they impose.’Footnote ⁵⁰

From a moral perspective, arguments for non-combatant immunity and for the value of a policy of double intention are grounded in a basic belief about the value of all human lives. The fact that soldiers have volunteered to make the ultimate sacrifice if necessary may justify putting their lives at risk, but it does not make their lives less valuable. Dunlap argues that American leaders have a disposition to ‘balance potential military losses against expected enemy civilian fatalities’.Footnote ⁵¹ Though Dunlap is wrong to use the terms ‘enemy civilians’ and ‘enemy noncombatants’,Footnote ⁵² there is nothing wrong with noting that even when soldiers have accepted a duty of due care and double intention, this duty is not equivalent to a commitment to automatically risk the ultimate sacrifice no matter how low the odds of its saving someone.

So how far should we expect a humanitarian soldier (or a commander) to go in order to protect the lives of non-combatants at the expense of his own? A soldier, in volunteering to fight, agrees to take on risks to his life that reflect an equal valuation of his life and that of a civilian. The humanitarian soldier agrees to give his life to save a civilian life – he agrees that in the case of a military operation where either a civilian will be exposed to severe risk or he will be exposed to severe risk – two cases where proportionality assessments that take each human life as equal are undifferentiated – no wrong is done to him by asking him to make the ultimate sacrifice so that the civilian's life may be preserved.

Casualty aversion and double intention, properly understood, are two sides of the same coin: they are both constraints upon military strategy that arise out of the equal valuation of human lives. To allow casualty aversion to absolutely govern strategy is to unjustifiably push the human costs of war upon non-combatants. To allow the due care that soldiers must show for non-combatants to make soldiers' lives absolutely expendable is to perpetrate a similar moral error. When operating in tandem, the best forms of casualty aversion arguments and the best forms of double intention can help to ensure that no human lives are undervalued and that the superiority of particular means and the proportionality of military actions are measured according to a standard that regards all human lives as morally valuable.

Now, let's return briefly to consider double effect, for the attention the present argument pays to the rights of soldiers may have contributed to a lingering concern about whether the claims here reflect due regard for civilians. In response to my view that soldiers ought not be ordered into lethal combat if they have not agreed to do so, some objectors might wonder (and this is what I think Michael Walzer is getting at when he says that NATO treated lives on the ground as ‘expendable’) about the moral rights and status of both Kosovar and Serbian civilians. If sending soldiers into lethal risk is wrong unless they have willingly accepted such missions, then how can it be right to choose a military strategy that entails greater civilian losses than absolutely necessary (in order to avoid wronging soldiers) without the consent of those civilians?

Richard Miller has written that: ‘Civilians in Yugoslavia do not deserve Slobodan Milosevic, but they did not deserve a NATO intervention that could have been more morally commendable, and perhaps more effective, in its effort to deliver Kosovo from Serbia's nationalism, tyrannical leadership, and ethnic hatred.’Footnote ⁵³ Miller's phrasing is telling: the real question is not what Yugoslav civilians did not deserve, but rather what they did deserve. To deserve something can mean to have a right to it. Did Kosovars and Serbs have a right to a ground invasion even if that would have meant forcing some NATO soldiers to make the ultimate sacrifice? For reasons I have already discussed, I do not think so – I do not think that NATO soldiers had a perfect duty to risk their lives for Yugoslav civilians.

What about the toleration of any civilian casualties at all – don't such unchosen deaths come into tension with my position against conscription? I believe that there is a distinction between conscripting soldiers to fight and die for a cause and the unintended civilian casualties that are an inevitable part of the horribleness of war. To conscript a civilian and make him a soldier is to put him in a position where it is permissible for the enemy to intend to kill him. Civilians, on the other hand, should never intentionally be killed. Soldiers agree to be used as a means to an end, and their choosing to do so is the only thing that makes this permissible while maintaining a position that human beings are to be regarded as ends. Civilians, even when they are killed unintentionally in military conflicts, are not used as means. In order to consider them as being used as a means the risk that their lives undergo would have to be intentional, a part of the strategy for achieving the war's end. Furthermore, in the case of a humanitarian intervention, it seems to me to be significant that the civilian lives, or at least many of them, are already threatened by the situation that apparently merits military intervention. In contrast, a conscripted person who was not threatened by the conflict at hand was really a bystander, not just an innocent, and this difference is significant.

In the case of the NATO aerial bombing, the proportional Kosovar deaths can be seen as permissible because these lives were already under threat – if any lives were saved by the bombing, then it was permissible, maybe not morally ideal, but permissible. The lives of Serbian civilians may seem, strangely, to be a tougher case, because these lives were not threatened directly by the Milosevic regime, so they were arguably not under threat already when NATO began its attack. However, Kosovar reprisals had certainly begun to put some Serbian civilian lives under threat, and it is possible that such reprisals would have increased without the NATO bombing. More importantly, the Kosovar people had a right to self-defensive war against the Milosevic regime. To the extent that Serbian civilian casualties were an unavoidable by-product of the exercise of that right to self-defence, then they were regrettable but not morally wrong. If one takes the view that the NATO airstrikes constituted a weapon of self-defence deployed on behalf of the Kosovar people, and that this was the only weapon that was available to the Kosovars (since NATO was unwilling to offer a ground invasion) then the Serbian deaths can be seen as the unfortunate collateral damage caused by the exercise of a Kosovar right of self-defence. The blame for the moral tragedy of the Serbian civilian deaths, like the blame for the moral tragedy in general, lies with the Milosevic regime.

Assuming that a ground war would have been more discriminate and more effective, as well as more proportional, there is no question that such a strategy would have been better, (and had an army of humanitarian soldiers been at the ready, it would have been morally permissible with respect to them and therefore morally required with respect to the civilians). However, just because the air strikes were not the best imaginable option does not mean that they were impermissible. A less morally commendable course of action is not necessarily a wrong one. Yugoslav civilians did not deserve Slobodan Milosevic, to be sure, but neither did anyone else in the world deserve the lethal responsibility for tempering his evil.