Tainted Humanity: The Dilemma of Military Interventions
As the world becomes smaller in many senses, international dependencies grow. Such developments also bring new responsibilities with them. Thomas Schramme looks at the moral grounds for so called humanitarian interventions; an intervention to protect one person’s human rights may often endanger another person’s human rights the practice thus confronts us with a moral dilemma.
Every time I discussed or even fought with friends about the Kosovo-War of the NATO, a paralysing undecidedness befell me.1 Why was it so hard to take a definite attitude of consent or rejection towards this operation. In a certain way, my paper is an attempt to show the ethical problem, which underlies this indecision. I´m still uncertain about a conclusive moral evaluation of Humanitarian Interventions (HI) in general – though I’m now more confident to give a verdict about the Kosovo-War -, because I think that the situations where a HI is considered, i.e. where there is a great amount of suffering which can only be ended by military means, confronts us with a moral dilemma. On the one hand, people in need and misery ought to be helped, on the other hand this can only be accomplished by means which themselves involve harm and destruction. Therefore, at the end of my essay I won´t answer the usual question “Are you in favor or against HI?” conclusively, although I would warn against it because of the problematic conditions of recent conflicts. My main aim is to show different ways to a consenting or dissenting judgement and to scrutinize them.
As so often, it becomes clear that the very question about the personal attitude concerning HI is badly posed, because it is too general. It asks for a judgment on principled objections to HI, like e.g. the involved violation of the right to self-determination of sovereign states. Accordingly, the philosophical, political and juridical debates is mainly focused on the issue whether there are situations at all, where a military intervention in a foreign state would be leagl or legitimate. So the question is, if there are any justified causes of an intervention or not. But to my mind it is also decisive how an intervention is carried out, and which consequences follow from it. Despite the usual lip-service this problem is often disregarded, especially by the advocates of HI. If it was different, there would be less decisive judgments, since the moral dilemma becomes obvious only in this connection.
That there are justified causes for an intervention into the affairs of sovereign states, hence no principled counter-arguments is – I think – not so hard to show, and I shall try to do that in the following. Of course there are strong objections to be taken into account. But, after all, they are not strong enough to be convincing. Insofar I argue pro-HI. Nevertheless, this is not to say everything that is morally relevant. Therefore, a bigger part of my essay concerns the question what the dilemma of a HI is, and whether and how it can be solved. In conclusion, I want to claim that a military intervention, even if it is done in order to defend threatened und suffering people, can hardly justify the predicate “humanitarian”.
I will start with a clarification of the meaning of “Humanitarian Intervention” by proposing a definition. Then I will briefly touch on the main battlefields of the intellectual fight over a justification of HI, namely international law and state sovereignty. In the main and longest part I´ll describe and scrutinize the underlying moral dilemma and strategies to resolve it.
Before I touch on a domain which I’m not very familiar with, namely international law, I want to do, what is usually demanded from a philosopher: to give a definition of the notion “Humanitarian Intervention”. I don´t think that too much depends on my proposal, but it should be helpful in order to convey a clearer idea of the subject.
A Humanitarian Intervention is the use or threat of coercive (military) means inside the territory of a sovereign state against its will by another state, or a group of other states, with the aim to protect people who suffer severe harm in that state, whereby the performance of the intervention itself needs to be in accordance with humanitarian standards.2
I did not mention the protection of human rights, because I don´t want to depend on that concept from the beginning. To me, “humanitarian” means first of all: focused on the well-being of others. Whether there are rights involved is a question which shall be considered in the following.
Concerning the definition, I want to add that it restricts to military operations. Often a distinction is drawn between Humanitarian Action and Humanitarian Intervention.3 Humanitarian Actions are e.g. food supplies (without military coverage) or the building and maintenance of refugee camps. Today, these aims are mainly accomplished by NGOs like Cap Anamour or Médicins Sans Frontiéres. A military intervention, on the other hand, is decreed and performed by national institutions, or by an international organisation like the UNO. The intervening party does not necessarily consist of UN-Soldiers, but may also act under the auspices of a conferedation like OSZE, NATO, OAU or – like at present in Sierra Leone – ECOMOG, or it may be built from national troops.4 Of course, it is an important question whether interventions without commission of the UN are legal or not. But at this point I´m up to a description, not an evaluation. In reality, HIs can be waged by states without mandate of the UN. And the Kosovo-War of the NATO is of course the decisive (bad?) example in this respect.
Some authors broaden the concept of intervention so that it also covers economic sanctions and even mere (non-military) help (which is not wanted by the receiving state). A prominent example of this conceptual expansion we find in Kofi Annan, the general secretary of the UN: “I define intervention as a continuum from the most benign diplomatic action to use of force in the extreme cases where it may become necessary. I define intervention as any action that may help stop violence, any action that may improve the lot of people in conflict situations, any action that could contain a conflict.”5This broadening has the advantage of putting other possibilities of intervention, in addition to military force, in the foreground. But to me it seems implausible for a couple of reasons. First of all, from the perspective of international law one should state that economic sanctions are not regarded as coersive means, and therefore do not need the approval of the Security Council. They are not dealt with by the principle of non-intervention.6 Admittedly, from a moral perspective one may ask – as well as in the case of HI – whether economic sanctions are legitimate or humanitarian, since they usually affect innocent people. But, after all, the decisive test case for the legitimacy of coercice measures is the armed intervention for the protection of citizens of a foreign state.
Another remark about the definition above concerns the last half-sentence. An intervention itself must be waged in accordance with humanitarian standards. To me, this addition is necessary. Usually only the humanitarian cause (“humanitarian catastrophe”) and the motives of the intervening party are explicitely mentioned. I think that there is missing something, because only the very additional condition leads to a possible contradiction in terms of a HI. Can there be a military intervention which is humanitarian at all? And this equals to: not only in its purpose, but also in its means.
From a moral point of view, the juridical debate about the legality or illegality of a HI, which was the main focus during the Kosovo-War, has a decisive drawback. On the one hand, it is satisfying and in accordance with the common wish for decisive judgments that the thourough juridical argumentations usually conclude with a yes/no-statement. And it seems that this is accomplished in an entirely neutral way, by pure exegesis of the respective statutes, charters, and codes. One may even say that the beauty of a juridical investigation lies in itsneedfor such a clear statement. “Yes”, a HI or this particular considered HI is consistent with international law. “No”, it is not. But on the other hand, neither of the answers are entirely satisfying. Rather, the problem obviously demands a perspective, which goes beyond the positive law, or focusses its basis. Legitimacy and not legality is then the main issue. Purely juridical judgments hold back this perspective. But it is necessary for a sufficient evaluation, because a legal act need not be legitimate, and an illegal act may be morally justified.
This distinction was blurred in some of the relevant newspaper articles about the operation in Kosovo – and consequently lead to some dissentions, e.g. when Jürgen Habermas, who, on the basis of normative considerations, anticipated a future state of the international law, was called a dreamer.7 Habermas dreamt the dream of legitimacy as being the basis of legality. For that, he was attacked by the wide-awake watchdogs of legal positivism. But shouldn´t we answer, in view of this critique, that the recent state of international law is of a progressiveness which no one has ever dreamt of after the experiences of WW I and II? Aren´t these anticipating and trascendending considerations necessary, in order to do justice to the changes of the political and moral state of affairs?
The deficiency of the juridical debate about the status of HI does not only stem from the lack of moral perspective. The positive law is just not clear enough to justify a decisive yes- or no-verdict. Consider the possible juridical argumentations.8 On the side of the opponents we find – beside the principle of state sovereignty which I will scrutinize in the next chapter – article 2 paragraph 4 of the UN-Charter which reads: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any member or state, or in any other manner inconsistent with the purposes of the United Nations.” A few lines later, this explicit prohibition of violence – with the exception of self-defense – is on the one hand enforced, but on the other hand put into question by the second sentence: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state (…); but this principle shall not prejudice the application of enforcement measures under Chapter VII.” (Article 2 paragraph 7.)
Not surprisingly, chapter VII became the most beloved part for the supporters of HI, and it has already played a major part in UN-Resolutions which sanctioned the use of force. The chapter deals with so-called “threats to world peace and international security”. If there is such a threat, then the Security Council is allowed to decree measures – which also cover military operations, if peaceful means have proved to be insufficient – in order to restore or preserve world peace.9 This argumentation hinges upon the meaning of “a threat to international peace”. Some supporters of HI go so far as to include massive violations of human rights in this notion. Since I´m not a lawyer, I can only state my conviction that the approach from international law comes to an end at this point. How one interpretes article VII depends on the respective normative point of view.10. The assertion – which admittedly is seldom to find amongst international lawyers – that one merely operates with the method of value-free exegesis is at best untrustworthy, at the worst a cover for ideologies. Interpretations of legal codes, which are indecisive about some cases, require a normative perspective. Of course, this perspective is not to be takenindependentlyof the positive international law. But the question is, what the international communityoughtto do if there are grave threats to life and limb inside a sovereign state, hence how the Charteroughtto be understood, not how itisinterpreted.
One might object that the only way to a decision about what ought to be regarded as a threat to world peace is included in the Charter itself. Who should decide if not the world community, and is’t the Security Council in charge, according to the Charter?11 I think that this is correct, but that it also supports my argument against a purely legal approach. After all, a decision of the Security Council needs normative considerations12 – and, by the way, it would also imply the need for a reform of the Council, because at present it surely does not represent the opinion of the world community. The belief that the correct interpretation of chapter VII is determined by what the Security Council actually decides does not do justice to the underlying normativity. It surely is an important question by what institutions and by what methods it can be regulated, in which cases an intervention is permitted or not. Just procedures are a main means to justify such a decision. But again: This is to ask for the legitimacy, not merely the legality of a HI. The latter follows from the former, or to put it another way: Legality is determined by legitimacy – at least it should be, if one wants to be in consistence with the purpose of international law.
This very proviso points at one of the dangers in the recent state of international law: As long as the structure and procedures of the Security Council do not correspond to the ideal I just stated, there will always be different interprets – “normative experts” so to speak – who feel called upon to tell the international community, in which cases an intervention is allowed or not. This was pretty obviously the strategy of NATO before the Kosovo-War, since they interpretated the missing approval of the Security Council as a lack of normative conscience. The diagnosis might be correct although the symptom which was taken into account is not very convincing. And so NATO saw itself as willing executioner of the alleged “real”, i.e. normatively correct, will of the Security Council.13 A dangerous presumption.
I don´t want to give the impression that only moral philosophers were able to weigh the pros and cons of a HI. One example of a legal argumentation in favor of HI, where one does not need a degree in moral philosophy to see its weakness, is the appeal to article 51 of the UN-Charter, where the right of states to self-defense is called “natural”. My critique is pointed at a particular utilization of article 51. I´ll come back to a more convincing appeal to it later. In the cases I have in mind, an intervention into another sovereign state is regarded as a legal defense of national interests. Not only the rescue of endangered citizens from the territory of a foreign state is supposedly included, but also the interpretation of disagreeable developments in another country as threats to ones own security. Especially the USA used this kind of derivation, e.g. in order to justify the invasion in Panama in 1989.14 It is not hard to see- even if one drops the adjective “humanitarian” in this case – that this interpretation of the UN-Charter is not admissable, and that it confirms exactly the fears according to which interventions are merely an instrument of hegemonial interest enforcement, and tend to a colonization by values.
Before I end my considerations regarding international law, I want to briefly address a legal figure, which seems interesting to me, because it questions the relevance at least of some parts of the UN-Charter – e.g. the confirmation by the Security Council – for the question of legality of a HI. I mean the figure of help in need.15 According to this argumentation, states may, in analogy to civil cases, help people in need – even foreign citizens on foreign territories. Since the guaranty of human rights does belong to the so-called dutieserga omnes, states which violate these rights have no legal argument against this intervention from outside. The help in need supposedly does not need the approval of the Security Council, because it is an extension of article 51, which – as I explained above – states the natural right to self-defense.16 Disregarding the fact that even this legal justification of HI is controversial, it is also not sufficient because, again, it merely deals with a justifiedcauseof an intervention, but is silent about the normative questions regarding its means and results. As well as in the civil case, where we are not allowed to use all kinds of means in order to help – e.g. we are not allowed to shoot into a crowd of people in order to stop a hijacker -, we need to consider the allowed means of an intervention, and which consequences are acceptable.
At least one conclusion should be drawn from my discussion of the international law: A purely legal perspective does not suffice to answer the question of a possible justification of HIs. Rather, in addition moral considerations are required. Of course, I don´t want to assert that all lawyers deny this. I just want to see the argument so far as a form of justification for the following, namely a scrutiny of the moral legitimacy of HIs.
Usually the right to self-determination of states is regarded as the hurdle for a justification of HIs. One may interpret the hint to the right of state sovereignty as an argument against any interference with national affairs. But should we really shrug off severe suffering in another sovereign state, if it is not able to fight it, or its own institutions are even responsible for it? Should the protection of states be more important than the protection of individuals? Kofi Annan condenses these considerations in the question: “If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity? We confront a real dilemma. Few would disagree that both the defence of humanity and the defence of sovereignty are principles that must be supported. Alas, that does not tell us which principle should prevail when they are in conflict.”17
In this context the question is whether state sovereignty and effective protection from individual suffering are really in opposition, whether sovereignty reaches so far that it covers severe violations of human rights. Again one might register a conflict between “legalists” and “moralists”.18 But this time I think it is only a sham fight – at least regarding the problem of intervention in cases of grave harm.
First of all, from the debate in moral philosophy one can identify a definite development away from a strict right of self-determination of states to a strong human rights individualism. If one wants to name people one could say: From Kant and Mill through Walzer and Rawls to Habermas and Barry.19 And even descriptively it can be said that states gave up more and more rights of self-determination in the course of globalization and the strengthening of international contracts – most of the time voluntarily. Many decisions and acts of sovereign states cannot be considered anymore as purely internal affairs. But it doesn´t follow that we are on our way to a world republic or a world government – the nightmare of many people from Kant to Clinton.20 There will still be nation states. Nevertheless – and this is decisive for our discussion – at least today, severe threats of life and limb, or the violation of basic human rights are not considered anymore as affairs which are covered by a state´s right to self-determination. They not merely rank as illegimate but also as illegal. All states, which ratified the UN-Charter thereby declared the protection of human rights as their purpose. If it is not able to protect them or if a state´s institutions themselves violate them, hen this is an international affair.
Many people pointed out that the right of states to self-determination reduces to a right of peoples.21 Especially in a contractualist tradition, which predominates in liberal states, it becomes obvious that the purpose of such a creation is mainly to do justice to the basic interests of all citizens. Too easily the state is identified with its government, and so the principle of non-intervention can become a warrant even for activities against the own people. In the case of severe human rights violations, which national institutions are either not able to stop or are even responsible for, a state does not meet its task of protecting its citizens, and so the appeal to a right of sovereignty becomes a moral and legal farce. Hereby it is not implied that the right to self-determination is brought down in any case of injustice, determined from a liberal point of view.22 There remains a lot of space for different opinions about the organization and goals of state actions – e.g. whether a strict division between state and church is called for, or which emphasis should be given to the environment in political decisions. The purpose of the right to self-determination consists in the protection of this plurality of different doctrines about the organization of the communal life. But in order to regard threats to life and limb as injustice one does not need a “western” interpretation. Whoever denies this commits normative suicide.
The Dilemma of HI
It almost looks as if I have already brought together all the necessary ingredients for a moral justificarion of HI. But this is not so. For so far I basically concentrated on the cause – the causa iusta– of such an interference with political sovereignty. There are further conditions to take into account. And these are especially hard to fulfil, since they deal with the means and consequences of a military intervention. I now want to show how they lead to a moral dilemma.
The dilemma consists in a collision between two duties, which we cannot both meet at the same time. On the one side, there is the duty to help people in great need, on the other side, we have the duty not to harm innocent people. There are different strategies to deny that there really is a dilemma, and also several ways to resolve it. I shall describe them in the following. To my mind, there are weighty arguments against HI – though mainly because of empirical considerations with normative implications. It may be that a HI is theoretically justified, but that the condition of the world questions the very justification, say because it is impossible to avoid civil victims.
Against the Dilemma
One can deny the dilemma by doubting one of the respective duties. The opponents of HI may deny that we are obliged to help foreigners. Surely not so many would assert that there are no situations at all, where help is morally (and legally) required from us. The classical example is that of a drowning child, who we can save. If we don´t try to rescue it, we are guilty. Admittedly, in these cases we need to be able to help, and also it cannot be expected that we ignore all the “costs” for ourselves. If we would get into serious danger by a possible rescue-action, it is justified not to do it. Concerning HIs this leads to the principle of maximal avoidance of harm for the intervening party – and thereby to a greater risk to harm innocent civilians, as one could learn in the Kosovo-War.23 Still, in many situations we are obviously obliged to accept some risks for ourselves. Also there are some people who are asked to take higher risks because of their profession, e.g. policemen, doctors, fire fighters and soldiers.
So there are conditions in which everyone, who is able to help, is obliged to help. Specific persons have even stricter and more duties. But aren´t these duties relative to proximity or at least end at national borders? Why should we be obliged to help people who live thousend of miles away? Is this situation at all comparable to the example where we directly happen to encounter a drowning child?
These questions can be answered by an appoach which is called Moral Cosmopolitanism or Globalism. Surely a duty to help cannot be adressed in the same way to concrete individuals, when we morally step outside the scope of close relations. Rather, it is indirectly adressed to us by obliging us to create institutions which take care of the respective help.24 The basis of this border-crossing duty consists in the universality of human rights – or, if you don´t like these expressions, in the basic need for protection of life and limb. Admittedly, one might argue that this duty first of all is a duty of national institutions. But if these fail, it is transfered to others. Many people suggest that the United Nations should be the respective institution, but to me this doesn’t seem imperative.
To enforce the counterargument once more, we might say that respect for persons only demands not to harm them, but not that we are obliged to help them if they are in need. I think that this argumentation fails firstly because it is not convincing in near proximity, i.e. regarding people we personally meet, and secondly because of the lack of a reason for restricting the duty to close relations.25 As I said above, there are cases where we are obliged to help others. There are situations of “negative responsibility”, in which our actions are morally asked for, even if we are not responsible for the existence of the situation itself. Further, the extension to a global appoach which goes beyond duties in close relations, follows from the universality of morality. Morality does not end at national borders.26 At least with regard to basic needs, we don´t have good reasons to deny some people its securing, hence our help, just because they live somewhere else.27 To give you an example: During the genocide in Rwanda in the spring of 1994 there were UN-Soldiers at the scene who had explicit orders, not to intervene.28 A similar situation occurred a few years earlier in Srebrenica where a massacre on Bosnian civilians was committed, so to speak right in front of Dutch UN-Troops. These two events marked a change in the public reactions. Now the wrongly interpretated neutrality, and the involved “principle of Pilate” were sharply criticized. It became obvious that it is possible to get dirty hands even by doing nothing.
Of course the argumentation of moral globalism is, from a historical point of view, a recent achievement, but it seems to follow conclusively – at least concerning the fulfilment of basic needs – from the principle of equal moral respect of all persons. The specifically new characteristic of this approach is its active reading of moral claims crossed over national boders. With this I mean the insight that the effective protection of basic human rights or basic human needs sometimes also requires the help of other parties, and that this is not understood as an act of charity but of justice. Admittedly, acts of help, which go beyond this basic protection, need a lot more contested premises in order to be interpreted as duties.29 But the argumentation of moral cosmopolitanism seems to me convincing with regard to situations of severe harm, which of course are pertinent to HI.
Even if one does not agree with this interpretation of the duty to help in cases of severe threats, then at least the right to intervention ought to be granted – one could consider the intervening party as “moral saints” who do a supererogatory act. For the reasons given above, this does not seem convincing to me.
An interesting aspect of this debate about duties from a meta-perspective is the fact, that Moral Cosmopolitanism leads to conclusions, which have been drawn since a long time by Utilitarians – although in a different manner.30 Especially the distinction between positive and negative duties, and between action and omission, which is usually a feature of deontological theories is put into question – at least in its common interpretation.31 So, regarding duties to help, two theories agree, where one is built on subjective rights, which are allegedly alien to the second.
A last word again on the risks of the intervening party: I said before that the duty to help ends with great risks for oneself. We are not obliged to sacrifice our own well-being, even if another person is in great need. Concerning HIs this inplies the principle of the greatest possible protection of the intervening soldiers – with the mentioned consequences for people who should be protected . Of course, if one voluntarily takes a higher personal risk because of the professional role of soldiers, then he may have less good reasons to refuse to take part in an intervention. Nevertheless, I don’t think that anyone would deny that soldiers have a claim to protection of their well-being, just as other people. One could get around this problem, first of all by recruiting only volunteers for an intervention. But in addition, an interesting consideration comes into play at this point, which has some effects on the evaluation of the motives of the intervening party. For it is quite likely that the readiness to risk your own well-being is maximised, if you don’t act merely altruistically, but to serve your own interest – which is not the same as egoism in its trivial sense, since one may act for the benefit of others and thereby serve his own interest. So if the soldiers of the intervening party don´t act merely from disinterested motives – the allegedly real humanitarian ones – but from a self-interested attitude, then the goals of HI obviously will be served better, because then they will see the risk of their lifes as a necessary means to their own aims.32
Apart from this an supposedly dishonourable motive itself is hardly relevant for the evaluation of anactanyway. Indeed, one can ask whether he should trust a person who merely acts morally in order to gain a high meaning of others. Nevertheless, it is good for others if he helps them and this is what a moral evaluation of a HI is all about. The question of motivation is less important for the justification of a HI as such. I shall come back to this point later.
The adherents of HI could deny the dilemma by negating the second duty, namely the duty to omit harming. In the case of a HI it is presupposed that there is a situation where people suffer severe harm. Now it could be asserted that the people who are responsible for the suffering forfeit their right to not being harmed. The strict duty not to harm anyone would only apply to innocents but not to agressors.
This argumentation is not convincing – disregarding very simple cases with a clearly identifiable agressor. Concerning the question of a justification of HI, it doesn´t lead us any further, because firstly, in real life the respective conditions are much more complex than assumed and the agressors not as easy to identify, and secondly, in a HI there are always undoubtedly innocent people threatened, even possibly the people who ought to be helped.33 If one wants to rule this out, the mission would have to be done in a way that would only involve direct contacts of the intervening party with agressors. This would, on the other hand, lead to a high potential of own risk. In the Kosovo-War, where the situation on the scene was relatively easy to survey, there were therefore some civil victims. From a moral perspective this is hard to justify.34 After all, the compelling reason in favor of a HI was the violation of basic human rights. But now the human rights ofothersare violated during this mission. The obvious defense-strategy, according to which the responsibility for this problem is imposed on a group (e.g. the Serbs), contradicts the individual logic of an argumentation based on human rights. It would boil down to a kind of kin custody. For a justified HI, it is vital that the discrimination between combattants and non-combattants is strictly complied with. And I wonder how this might be possible in the complex and chaotic conditions which we find in real life.35
Resolving the Dilemma
So far I asserted that by trying to justify a HI, we uncover an underlying moral dilemma. One duty speaks in favor, one against a military intervention, and it is not possible to fulfil both together. But maybe there is a way to resolve the dilemma.36 After all, it could be argued that one of the duties takes precedence. In the following I shall introduce several strategies and discuss them. In conclusion, I don´t find any of these sufficiently plausible.
The adherents of HI may say that the harm done to, or the threat of innocents, is something the intervening party can foresee but does not intend. These unintentional consequences were morally acceptable , and therefore the duty to refrain from harming innnocents would not be violated after all. This argumentation is usually called the Principle (or Doctrine) of Double Effect, whose profane translation consists in the military language of “collateral damages”.37
The Principle of Double Effect asks for the fulfilment of four conditions. Firstly, the act in itself must be good or morally neutral. Secondly, the direct effect (e.g. the destruction of military buildings or the attack on agressors) must be morally acceptable. Thirdly, the intention of the actor has to be good, and the bad consequences may be neither goal nor means to his goal. Fourthly, the good effects must be sufficiently good to compensate for the bad effects.
So the defenders of HI can argue that the intention of the intervening party is to rescue people in need. It is also involved, that this is only possible by military means – asultima ratio. The bad consequences – so the argument goes on – are admittedly foreseeable, but are not intended as such. Surely it would be nice if there were weapons, which could recognize who is innocent and who is aggressor. The wish for “smart” weapons would proove the good intention. Therefore: According to this argumentation, the harming of innocents is a consequence of the intervention, but it is justified because unintended.
It is hard to deny that for an evaluation of theactorit is important whether she intends a bad effect of her act or not. Most important, she is more easily excused for a consequence if she was lead by a good intention. But the question is, if this is relevant at all. Obviously, much more important seems to be the evaluation of theactionitself, hence the foreseeable consequences are relevant, be they unintended or not. Is the killing of a person morally to condemn only if it is intentional, i.e. murder? Anyway, the doctine of double-effect is in danger of hiding the reprehensibility of some acts, even if they are done by morally exemplary persons. In the worst case it justifies the common phrase “I only wanted to do good”.
Much more honest would be, if the weighing of the consequences, which is – at least in the case of HI – obviously underlying the justifying logic of the doctine of double-effect, would be put in the center of attention.38 After all, it is not true that, when an intervention is considered, we just need to weigh a good consequence (the allegedly intented) against a bad one (the unintented). Rather, acting as well as ommitting has several good and bad consequences. The justification of a HI depends on the overall evaluation of these consequences and not on the intention of the actor to do the best. A good intention is usually a prerequisite of a legitimate HI, hence is a mere matter of course at this point of consideration. But what it means to do the best does not follow from the attitude of the actor, but from the weighing of options. After all, it may be possible that the bad consequences are justified; nevertheless, this has nothing to do with the actor´s intentions, and therefore the justification by the doctine of double-effect is not convincing.
In summary: The Principle of Double Effect may be meaningful in respect to some moral problems. But for our purposes is does not help because the question right now is, whether it is morally allowed to endanger or even kill innocents while helping others. The goal of helping others in need has been shown to be legitimate before – and so the good intention of the intervening party can be presupposed. All depends on the evaluation of the bad effects – the harming of innocents – in relation to the good effects – the saving of people in need. The reference to the intentions only shifts the problem. The Principle of Double Effect is the deontological disguise of Utilitarians with bad conscience.
A second way to argue for the legitimacy of a HI is to say that the duty to help is more important than the duty not to harm others. It is easy to think of scenarios where this happens, i.e. where it is ligitimate to violate one duty in order to fulfil another one. Consider an example.39 You come to a scene of a car accident with some badly injured people and you want to call an ambulance. But the old lady in the nearby house refuses to open the door, and does not believe you that there are people in need. Suddenly the granddaughter of the lady appoaches the house. It seems to be morally justified to wring her arm, so that her screams of pain will change Grandma´s mind, and you are able to call the ambulance.
I suppose that only very confident Kantians would not draw this conclusion but however: for the purpose of justifying a HI the argumentation does not help, because it is only convincing regarding cases, where the suffering of the people we want to help is much more severe than the harm we do. In the example above there was a slight and short pain opposite great agony and possible death. But in the case of HI, the kind of harm involved is on the same level for both sides, i.e. for the people we want to help, and the people we are likely to harm: at stake are life and limb. Since the quality of the harm involved does not differ on either side, it seems reasonable to take a step further to the arguably most convincing and already suggested argumentation in favor of a HI, namely a utilitarian one.
Utilitarians weigh, which option to act supposedly maximizes utility. If a HI promises to rescue much more human lifes than it will cost, then it should be done. I suppose that this kind of argumentation underlies most of the statements in favor of HI, although often unconfessed, because many people don´t have a high meaning of Utilitarianism. I don´t want to say a lot about the argumentation as such, but want to hint at an interesting point which is better seen from a metaperspective, namely that Utilitarianism, in its common interpretation, is usually considered to be incomptible with a right-based moral theory. Further, it is claimed that the main drawback of Utilitarianism is its inability to establish moral rights. Ultimately almost everything would be allowed if it only increases utility altogether, individuals would be sacrified for total utility etc.40
All these objections are well-known, what I don´t think makes them more convincing, but I will take them for granted here, because I want to make a different point. It is interesting, how our discussion – by starting from an ethics of individual universal concern and respect – unexpectedly lead to a utilitarian perspective, hence a theory which is allegedly in opposition to this very individual logic. Now we may say: No problem, a convincing theory can indeed start from a deontological platform, and build in utilitarian principles of precedence for cases where duties conflict.41
Indeed, a utilitarian argumentation seems to me the only more or less convincing strategy of the adherents of HI. Nevertheless, I want to point at a slight uneasiness when deontologists suddenly appeal to utilitarian arguments. After all, the main problem of the justification is to give the potential innocent victims a plausible reason why they should regard their possible death as justified by the rescue of others. If onestartsfrom a utilitarian account then this step is not hard to make.42 But the condition, only to act on principles which everyone could have agreed with, is the basic principle of a universalist ethics of equal respect. And so the impression is not far-fetched that from the side of the defenders of a HI, there is just an appeal to some argument desperately sought for, be it in accordance with the underlying theory or not.43
Admittedly, maybe someone is able to show that the consent of the innocent victims of a HI can be reasonably asked for. After all, there are many examples of communal decisions which cause burdens for some people and we nevertheless expect their consent – e.g. we put up with hundreds od innocent traffic-victims. But is this a comparable case for the question of the legitimacy of a HI? After all, in this case the risk can be determined (although not completely) by the people themselves, while in the case of an intervention it is wholly caused and determined from others.
So far I have concentrated on the strategies of the adherents of HI to resolve the dilemma. Now at the end the opponents should have they say. A possible argumentation operates with an obvious asymmetry of the duties involved. One demands anacting– a performance of help – the other anomission– refraining from doing harm. Now by saying this, it is not supposed that only omissions are morally required. This claim has been already rejected before. There are many situations where we have a strict duty, which is demanded for reasons of justice, to do something. Nevertheless, it can be argued that in case of aconflictbetween a duty to help and to omit, like in the case of a HI, the mentioned asymmetry results in a priority of the omission, because it is better not to do something bad, than to do something good. The reason for this principle consists in the moral importance, which is due to the own causation of an effect.44
Again, for a sufficient evaluation, a lot more needs to be said about the argumentation. Whether is does convince also depends on the basic ethical theory one subscribes to.45 Disregarding this problem, there is at least one consideration which backs the priority of omitting in case of a conflict of duties, especially concerning the question of HI. For in this particular case, the standards for the intervening party seem to be more strict than for people who are already involved. If someone acts in self-defense – like the Allies in WWII – the situation looks different from the case, where a party steps in from the outside. It seems to me that the latter has to strictly stick to the duty of the avoidance of harm and also a smaller range for an appeal to the right to minimize own risks – which of course does not mean that someone acting in self-defense is allowed to do everything. Self-defense also underlies moral rules. But they seem to be more strict in the case of a party stepping in. More concrete: NATO should have given its own protection much less importance than it did, by bombing from a high altitude. For this conflicts with the safety of innocents.
The named moral asymmetry between a party stepping in, and a party already involved, results from the different situation people are in, when they either take the role of a helper (in need) – like in the case of HI – or they are pushed in a particular role – like in examples of self-defence or in an accidental confrontation with an emergency. The person stepping in can consider whether he intervenes or not, while the person already involved must act.
I scrutinized several ways to solve the dilemma. None seems to me conclusive. On the side of the defenders of HI, the most powerful arguments are utilitarian considerations of utility-maximazation, which supplement the basically individual moral theory. Concretely this means: The rescue of as many lifes as possible outweighs the possible killing of less people. From the opposing point of view, one can appeal to the specific asymmetry of an involved party compared to someone stepping in, and the involved moral relevance of the authorship of bad consequences. Which kind of argumentation is regarded as more convincing obviously not only depends on basic moral intuitions, but also on the specific interest, which one is more wanted to be convincing.
To put one-sided stress on the task to relief suffering of innocent people, without thinking of the harm caused at the same time by a military operation, results in a simplification which is not appropriate for the complexity of the situations, one considers to get involved with.46 By this, I don´t want to say that the duty to help would not apply, but only that the question, what we ought to do, is much more difficult to answer than suggested. In some cases nothing can be gained without military means. But even then, the help shouldn´t go to the costs of innocents. Whether this is possible at all cannot be answered while sitting in a philosophical armchair. Nevertheless, at least it is clear that in order to accomplish it, a very high risk of the intervening party needs to be taken, because it is necessary in order to minimize the risk of innocents. But even without military measures, some help can be done: Political and economic pressure on agressors, humanitarian help for refugees and – a proposal which has been characterized as cynical, but is worth considering, if we keep in mind the normative stalemate – armament of the victims of aggression.47 If taking possession of a right to self-defence in a paternalistic way results in irresolvable moral problems, then to me the better solution consists in enabling the people in question to realize this right themselves.
It is not easy to draw a short conclusion from my considerations. At least it became obvious that a moral scrutinization of HI is heplful and necessary in order to break out of the tight corset of international law. The state´s right to self-determination, which is usually put forward by the opponents of an intervention, was shown to be insufficient. Also the common claim to allegedly bad motives of the intervening party did not impress. But the dilemma of the duty to help and the duty not to harm innocents demonstrated how hard it is to justify an intervention after all. Whether the discussed strategies convince or not does not only depend on the arguments themselves but also from basic moral intuitions. But as long as the conflicts we find on earth are so complex, the distinction between agressors and innocents is so hard to draw, and the readiness of the potential intervening party to risk their own lifes is so low, I think one should not intervene with military means. After all, a lot can be done nevertheless. At least it is a worthwhile goal to dedicate oneself to the civil help for victims and the avoidance of future wars.
For a start, it would be reasonable to identify the term “Humanitarian Intervention” as a consequence of political new-speak and therefore to ban it. Because in today´s world it is at best an euphemism, at worst a contradiction in terms.48
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Habermas, Jürgen(1999), “Bestialität und Humanität. Ein Krieg an der Grenze zwischen Recht und Moral”, Die Zeit29.4.99; wiederabgedruckt in Merkel (2000), p.51-65.
Hippler, Jochen(1993), “Krieg und Chaos. Irreguläre Kriegführung und die Schwierigkeiten externer Interventionen”, in: Volker Matthies(ed.), Frieden durch Einmischung? Der Schrecken des Krieges und die (Ohn)Macht der internationalen Gemeinschaft, Bonn: Dietz, p.139-154.
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Merkel, Reinhard(ed.) (2000), Der Kosovo-Krieg und das Völkerrecht, Frankfurt: Suhrkamp.
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Most parts of this essay were written during a fellowship at the Institute of Human Sciences in Vienna. I would like to thank the fellows and staff, who produced a great atmosphere - not only for working.
For similar definitions seeOeter(1998),Greenwood(1993).
See Laberge(1995), p.16.
Of course the UN-Troops consist of soldiers from different states, too. But they act on order of the UN, under its flag, so to speak. The assertion of regional troops by the UN is regulated by article 53 paragraph 1 of the Charter.
UNO Press Release SG/SM/7232/Rev.1. Other authors, who support a broad definition areBeitz(1979), p.72,De-Shalit(2000), p.222ff.,Zanetti(1999), p.207f.
See Frowein(1995), p.18f.
See, for example, the heading of the readers letters regardingHabermas´sarticle in the German newspaper.
Of course, concerning NATO´s war against Serbia the missing resolution of the Security Council was the main argument of the opponents. An important defense of the proponents consists in the legal concept of help in need. Allegedly a UN-Resolution is not necessary in these cases.
One might object, not unconvincingly (cf.Fischer(1993), p.97f.), that measures of the UNO which are backed by chapter VII are not a HI after all, because the UN-Charter generally prohibits an intervention into the affairs of states, according to article 2, and that the evaluation of the situation in a state as a threat to world peace (according to chapter VII) prevents to regard this situation as an internal affair. Instead we should speak of "collective safeguarding". I leave it with this hint, because my main aim is not a conceptual one, but to clarify how we may evaluate military operations to help people in need in general
We can restate the argument in this way: If the legality of a HI cannot be decided by exegesis of international law, one should determine a formal procedure which will produce the verdict.
Again one might object that this is too naive. After all, in the Security Council you only find the bargaining of national interests. But if the UN and hence the Security Council has any reasonable task to fulfil, then they need to look at the problems from a normative point of view - which of course may involve egoistic national interests but is not determined solely by them.
For this development seeSimma(2000), p.18ff.
See Merkel (2000), Senghaas (2000).
"Extension", because the Charter does not itself mention individuals as bearer of the right to self-defense. Nevertheless, persons are recognized as adressees of rights - what are human rights if not individual rights, and, after all, aren´t these put in the foreground by the Charter? So, parties intervening from the outside of a sovereign state, may appeal to a right to help in need in accordance with article 51. SeeMerkel(2000), p.80ff.
UN-Document A/54/2000 ().
See Zanetti (1998), Ladwig(2000).
See Kant (1795), Mill(1859), Walzer(1977, 1980), Rawls (1993, 1999), Habermas(1996), Barry(1998).
See Beitz(1994), p.125, Höffe(1998), Habermas(1996).
See Walzer(1977), p.53ff.
See Laberge (1995), esp. his objections to an argumentation in favor of "reform interventions" (which he ascribes to Beitz), and also the considerations of Barry(1998), whether interventions in order to secure the just distributions of goods in the third world might be justified. Concerning such sweeping ideas, the usual suspicion of a possible imperialism of justice is not far-fetched.Walzer(1980) remarks dryly: "But I don´t believe that the opposition of philosophers is a sufficent ground for military intervention."Rawls(1999) is also sceptical about too high liberal demands on the legitimacy of a state. He distinguishes between liberal and decent states. Both forms enjoy the complete protection of the principle of non-intervention.
See Ignatieff (2000).
See Pogge (1992), p.90f.
See Shue (1998), p.358ff. "Even if the content of a right would consist in the merely negative definition to be perfectly let alone, people don´t just appeal to the right to be let alone, in order to let all other people involved know, so that they - informed in this way - can act politely according to the wishes. On the contrary. Someone appeals to the right to be let alone in order to get protection from others against people who cannot really decide to let him alone." (translated from German) (p.359)
"(...) membership of a society does not have deep moral significance",Barry(1998), p.145.
I would think that even strict Communitarians, who argue for special obligations according to proximity, would not doubt this approach as regards basic needs of security.
Later the Canadian commander of these troups, General Dallaire, said, that if the intervening parties are not up to risk the lifes of their soldiers anyhow, then they should send boy-scouts. The reference is inAppiah(1999). The book which was reviewed by Appiah in this article has the pointed title.
At this point I would be much more sceptical than Pogge (1994) and Barry (1998). An interesting critique is to be found inMiller(1998). Nevertheless, he also does not deny the thesis of Moral Cosmopolitanism on the level of basic needs: "If we reflect on what we owe to other human beings considered merely as such, apart from all the particular relationships in which we stand to them, the best answer is going to be 'respect for their basic human rights,' (...)", p.176. An interesting, mainly historical, paper is Nussbaum (2000).
See Singer(1993), Unger (1996)
See Shue (1980), Koller (1998). Pogge (1994), p.92 interprets even the duty to help (which is, according to him, indirect, i.e. refers to institutions) as a negative duty: "I have a duty towards every other person not to co-operate in imposing an unjust institutional scheme upon her (...)"
See Wolfson(2000), who refers to Theodore Roosevelt´s "patriotic humanism". It isn´t necessary to agree in general to Wolfson´s conservative point of view, in order to appreciate his objections to a disinterested HI. The common critique of a "mix of motives" for a HI seems overrated. Admittedly, usually it focuses at the fact that there is hardly a "humanitarian" motive, if someone acts only according to his own benefit. This of course is true enough. But an intervention may base on self-interest and nevertheless be a humanitarian one by being focused on the well-being of others.
This moral problem might be solved if the people in question consent to their risk to suffer harm. But one can hardly presuppose this consent - at least not concerning the innocent members of the group of the aggressors.
Walzer (1977) also points to this predicament, and he insists that this is not merely a military but a moral problem: "A state contemplating intervention or counter-intervention will for prudential reasons weigh the danger to itself, but it must also, and for moral reasons, weigh the dangers its actions will impose on the people it is designed to benefit and on all other people who may be affected." (p.95). See also Nagel (1979), p.69f.
"But what if interventions are waged in a sorrounding where the society is disintegrated, where maybe no state institutions are functioning anymore, where guerilla and tribal war is the highest form of social organisation? (...) To be against injustice, violence and murder is easy, but against which groups, sections and persons should one take action? (...) This problem reaches its peak, when murder is not ordered anymore by political institutions or military commanders, but is committed on the very basis of a society by civilians themselves. (...) To an increasing degree the conflicts are not characterized by clear fronts, and easily identified actors, but by situations of chaos. " (translated from German) Hippler (1993), p.147f. See also Truger (1996).
Some moral philosophers assert that a convincing theory must not allow for irresolvable dilemmas.
For considerations regarding the Principle of Double Effect, see Walzer (1977), p.152ff., Quinn (1989), Foot (1967), Anscombe (1961). An influential critique of the doctrine is found inBennett(1966), (1981). Highly critical is alsoMerkel(2000), p.73f., 93.
The weighing is involved in the fourth condition of the principle, whereby the intended consequences must be sufficiently good to compensate for the bad ones.
I took the example fromNagel(1980) and simplified it a little.
I want to point at the fact that there is a difference between examples, which are usually used as counter-examples to Utilitarianism and the conditions, where a HI is considered. In the first case someone is harmed in order to rescue others (e.g. someone is killed and slaughtered in order to save five people with the help of his organs). In the second case someone is harmed while saving others. One time the harm is a means, the other time a side-effect of the help. Nevertheless, the utilitarian argumentation may result in a conflict with the underlying moral theory of universal and equal respect.
See, for example,Scanlon(1998), p. 229ff. But to me the conditions where he is prepared to allow "aggregations", are different because they only deal with people who are already involved (whether because of their own fault or not does not matter here). But in the case of HI the intervening party drags innocent people into a situation of possible harm.
Regarding this option I want to point out that obviously a lot more people could be saved, if the military expenses of an intervention would be invested in the food supply for people in the third world instead. So, if one really wants to help people in need, why not in an easy, efficient and bloodless way? Of course, other peoples lifes would be rescued - but doesn´t every human being count the same?
This suspicion is confirmed by authors likeMerkel(2000), p.89ff., who, as well as the defenders of HI, start from a universal ethics of respect and nevertheless object to the utilitarian weighing - with good arguments.
By saying this, I want to point at a slightly different moral asymmetry between doing and omitting, than the one claimed by Utilitarians. The argument does not assert that there is a general moral difference between the omission of help and the active harming. As I said before, this argumentation takes for granted that there are situations where an omission is morally just as bad. But now the question is, whether the difference is important, if someone can only do something good while also doing something bad at the same time. If someone refrains from an intervention, then he does not do something good, but he also does not do something bad. In this case the causation by oneself seems to make a moral difference. I guess that Utilitarians would ask, whether one would still insist on this difference, if someone could do (or omit) a lot of good, while causing only a little harm at the same time.
Relevant authors in this context are Bernard Williams, and also Philippa Foot,Warren Quinnand - on the side of the opponents, who question the moral relevance of the distinction between doing and allowing - e.g.John Harris, Jonathan Glover, Peter Unger.
The role of media is not to be underestimated here.
This proposal has been made with regard to the Kosovo-War (but for different reasons) byHans Magnus Enzensberger (1999).
I would like to thank Regina Kreide, Herlinde Pauer-Studer, Stefan Huster, the participants at the meeting of the "Junges Forum Rechtsphilosophie" in Heidelberg, and the fellows at IWM in Vienna for comments.
Published 1 April 2001
Original in German
First published by Transit
Contributed by Transit © Thomas Schramme / Transit / EurozinePDF/PRINT