1 Farer, Tom J., ‘Humanitarian Intervention before and after 9/11: Legality and Legitimacy’, in Holzgrefe, J. L. and Keohane, Robert O. (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, 2003), p. 55Google Scholar .

2 Two recent anthologies on the subject employ broader definitions of humanitarian intervention, incorporating the threat of force (Holzgrefe) as well as other non-military forms of coercive interference (Welsh). See Holzgrefe, J. L., ‘The Humanitarian Intervention Debate’, in Holzgrefe, J. L. and Keohane, Robert O. (eds), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge:Cambridge University Press, 2004), p. 18Google Scholar ; Welsh, Jennifer, ‘Introduction’, in Welsh, Jennifer (ed.), Humanitarian Intervention and International Relations (Oxford: Oxford University Press, 2004), p. 3Google Scholar . Martha Finnemore does not count interventions against natural disasters, but does count invited interventions. See, Finnemore, Martha, The Purpose of Intervention : Changing Beliefs About the Use of Force, Cornell Studies in Security Affairs (Ithaca: Cornell University Press, 2003), p. 55Google Scholar .

3 By basic human rights / well being I mean, roughly, those conditions that comprise the necessary prerequisites for a life that we would recognise as potentially autonomous. Though it is not my purpose to define those conditions precisely here, it seems clear that basic physical security and subsistence, for example, would be among such conditions.

4 In this respect it is important to note that although I have said the defence of human lives and rights is the only end that can morally justify the ultimate sacrifice, it may be the case that – so long as human lives and rights are at stake – we permit persons to volunteer for other reasons, even if we don't think those reasons would, on their own, justify the ultimate sacrifice. (See footnote 5 below.)

5 I subscribe to the view that a liberal concern for consent must be interested not only with the act of consent but also with the considerations upon which that consent might be based. When people are agreeing to risk their lives in war, liberals should care not only that they have agreed to do so, but also, because we respect them as persons, that there exist good reasons for doing so. We cannot really claim that our respect for consent is grounded in respect for persons if we are apathetic about the reasons why individuals may consent. This does not mean that we necessarily police the motivations of volunteers – we may, because of well-reasoned practical and moral considerations, admit volunteers for a justifiable cause whether they are motivated by good reasons or not. But we should care that good reasons are available and applicable in the case in question, and that we don't condescend to pretend that there is no difference between good reasons and bad.

6 Walzer, Michael, ‘The Argument About Humanitarian Intervention’, Dissent, 49:1 (2002)Google Scholar .

7 Finnemore, The Purpose of Intervention, p. 80. Emphasis added.

8 Another reason for the focus on states is the practical requirement that any effective intervention will have to be organised by states – individuals cannot be reasonably believed to be in a position to be effective on their own. However, this practical consideration does not obviate the possibility (or need) for a broader moral discussion that includes individuals. I am grateful to Kristi Olsen for this observation.

9 Two general camps can be discerned: some argue for a morality-informed revision of international law to narrow the apparent chasm between law and morality, others have argued that the stability provided by current international law is morally valuable itself, and that humanitarian intervention should remain illegal with the onus of retroactive justification falling upon its practitioners in exceptional cases. There are variations within as well as across the two groups. For distinct examples of legal revisionists see Tesón, Fernando R., ‘The Liberal Case for Humanitarian Intervention’, in Holzgrefe, J. L. and Keohane, Robert O. (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, 2003)Google Scholar ; Wheeler, Nicholas J., Saving Strangers : Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000)Google Scholar ; Franck, Thomas M., ‘Interpretation and Change in the Law of Humanitarian Intervention’, in Holzgrefe, J. L. and Keohane, Robert O. (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, 2003)Google Scholar . For the more conservative position see, Chesterman, Simon, Just War or Just Peace : Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001)Google Scholar ; Byers, Michael and Chesterman, Simon, ‘Changing the Rules About Rules? Unilateral Humanitarian Intervention and the Future of International Law’, in Holzgrefe, J. L. and Keohane, Robert O. (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge: Cambridge University Press, 2003)Google Scholar .

10 Buchanan, Allen, ‘The Internal Legitimacy of Humanitarian Intervention’, The Journal of Political Philosophy, 7:1 (1999)CrossRefGoogle Scholar .

11 Ibid., pp. 72–3.

12 Buchanan allows the possible exception of a democratic populace unanimously authorising humanitarian efforts.

13 Fernando Tesón makes a similar point arguing that Buchanan's argument needs to be supplemented in order to cover the use of military resources. Tesón, ‘The Liberal Case for Humanitarian Intervention’, p. 124.

14 Terry Nardin, among others, offers a similar formulation of a natural duty to help qualified by a limitation on costs. Nardin, Terry, ‘Ethical Traditions in International Affairs’, in Nardin, Terry and Mapel, David R. (eds), Traditions of International Ethics (Cambridge: Cambridge University Press, 1992), p. 10CrossRefGoogle Scholar .

15 Buchanan, ‘The Internal Legitimacy of Humanitarian Intervention’, p. 86. I would suggest a formulation that leaves out the citizen/non-citizen distinction: there are limits on the costs that individuals must bear in order to help others.

16 See, inter alia, Miller, David, On Nationality, Oxford Political Theory (Oxford: Clarendon Press, 1995)Google Scholar ; Miller, Richard W., ‘Cosmopolitan Respect and Patriotic Concern’, Philosophy and Public Affairs, 27:3 (1998)Google Scholar .

17 In a later book Buchanan does briefly acknowledge the concerns raised here. He admits that violent death may be considered an excessive cost, and that therefore those who bear that cost must do so voluntarily. However, Buchanan does not integrate these concerns into a broader consideration of the ethics of humanitarian intervention, nor does he consider the implications of the moral requirement that humanitarian interventions be carried out by volunteers. Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), pp. 468–471Google Scholar .

18 It does not follow from my commitment to respect an individual's choice about when and for what to risk his life that I also accept the traditional tenets of conventional libertarianism. As I said above, I accept Buchanan's position that states may act as instruments of justice, and I perceive a robust duty to aid those in need far beyond that which libertarians typically endorse. Moreover, libertarians are typically seen to be concerned with reducing constraints on self-directed individual action, and therefore the act of consent, as an example of voluntary action, has profound moral significance in and of itself in their view. Instead my view of consent is more instrumental, and my moral concern is not only with consent as a marker of autonomy but also with the moral reasonableness of an individual's risking his life. The main question here is whether or not liberal principles require us to protect individuals' rights to make life or death decisions in particular. If I am right, then Tesón's claim to represent the liberal position is not sustainable, if Tesón is right, then my claim to represent the liberal position may be flawed. In any case, much more would have to be said to characterise my position as libertarian.

19 Tesón, ‘The Liberal Case for Humanitarian Intervention’, p. 126.

20 Ibid., p. 128. However, Tesón doesn't specify what the volunteers have volunteered for. My argument would obviously entail the qualification that the standing army could only be used if it was raised voluntarily and with the acceptance of humanitarian missions as an end.

21 Ibid., p. 126.

22 I borrow these terms from the English School of International Relations theorists to characterise those who believe that only minimal common norms can develop in international society to facilitate coexistence (pluralists) and those who see the potential for more robust regimes of common norms and shared institutions. See, for example Bull, Hedley, The Anarchical Society: A Study of Order in World Politics, 2nd edition (New York: Columbia University Press, 1995)Google Scholar .

23 Buchanan, ‘The Internal Legitimacy of Humanitarian Intervention’, p. 87. See also Buchanan, , Justice, Legitimacy, and Self-Determination, pp. 468–471Google Scholar .

24 Wheeler, , Saving Strangers, p. 300Google Scholar .

25 Walzer, ‘Humanitarian Intervention’.

26 Double effect and double intention are discussed in more detail in the section below. Also see Walzer, Michael, Just and Unjust Wars, 3rd edition (New York: Basic, 2000), pp. 152–159Google Scholar .

27 Wheeler, , Saving Strangers, p. 284Google Scholar .

28 Chinkin, Christine M., ‘Kosovo: A “Good” Or “Bad” War?’, The American Journal of International Law, 93:4 (1999), p. 844CrossRefGoogle Scholar .

29 Walzer, Michael, ‘Kosovo’, in Buckley, William Joseph (ed.), Kosovo: Contending Voices on Balkan Interventions (Grand Rapids, Michigan: William Eerdmans, 2000), p. 334Google Scholar . Note again that Walzer continues to see the intervention as a state/NATO action (they are the ones who do the killing) even though he recognises that ordinary soldiers die. NATO leaders may decide to authorise the killing, but they do not do it. Similarly, even though the soldiers die, NATO leaders authorise the action that puts them at risk.

30 Though he acknowledges the confusion that could arise from the two different ‘yous’ involved, Walzer does not address the difficulty of his ‘hard sentence’ – the fact that the ‘you’ making the decision to go to war is different from the ‘you’ that must be willing to die. This distinction is at the heart of my argument.

31 Where Walzer might be right is in the letter rather than the spirit of his claim – and while I think his intended moral claim is clear, he could reply that he has merely asserted a truth of practical ethics: it may be true that it is in fact impossible to achieve the aim of saving people without risking one's own life. This has nothing to do with the justice of killing the guilty. Instead it depends upon the – quite plausible – practical assumption that in many situations of humanitarian intervention it will be impossible to kill the bad guys and save the innocent without engaging in some risk oneself.

32 Walzer, , Just and Unjust Wars, p. 155Google Scholar .

33 Dunlap, Charles, ‘Kosovo, Casualty Aversion, and the American Military Ethos: A Perspective’, Journal of Legal Studies, 10 (2000)Google Scholar .

34 Miller, Richard B., ‘Legitimation, Justification, and the Politics of Rescue’, in Buckley, William Joseph (ed.), Kosovo: Contending Voices on Balkan Interventions (Grand Rapids, Michigan: William Eerdmans, 2000), p. 295Google Scholar .

35 I should note that one of the problems with the muddled debate about Kosovo is an apparent failure to adhere to traditional definitions of discrimination. There has been a tendency to assume that any action that causes collateral damage is indiscriminate. If this were so it would prohibit almost all potentially lethal military action. Discrimination refers to intentions not to outcomes.

36 Patricia Owens provides a very interesting account of how military leaders, by assigning collateral damage to the category of ‘accidents’, have attempted to thereby exonerate militaries from acts that would have failed just war criteria. See Owens, Patricia, ‘Accidents Don't Just Happen: The Liberal Politics of High-Technology Humanitarian War’, Millennium Journal of International Studies 32:3 (2003)CrossRefGoogle Scholar .

37 Walzer, , Just and Unjust Wars, p. 155Google Scholar .

38 Ibid., p. 156.

39 It is odd that Miller, in apparently seeking to avoid using Walzer's terminology for this idea, instead borrowed Walzer's labels from another context.

40 Miller, ‘Legitimation, Justification, and the Politics of Rescue’, pp. 389–90.

41 It is in this context that Paul Ramsey offered the observation, that ‘[t]he justification of participation in conflict at the same time severely limited war's conduct. What justified also limited!’, Ramsey, Paul, The Just War: Force and Political Responsibility (Lanham, Md: Rowman & Littlefield, 2002), p. 143Google Scholar .

42 See, inter alia, Chinkin, ‘Kosovo’, Walzer, ‘Kosovo’, Dunlap, ‘Kosovo, Casualty Aversion, and the American Military Ethos’, Wheeler, Saving Strangers, p. 284. Charles K. Hyde, ‘Casualty Aversion: Implications for Policy Makers and Senior Military Officers’, National Defense University, {http://www.ndu.edu/inss/books/books%20-%202000/Essays2000/HYDE.HTML}.

43 Shue, Henry, ‘Limiting Sovereignty’, in Welsh, Jennifer (ed.), Humanitarian Intervention and International Relations (Oxford:Oxford University Press, 2004), p. 24Google Scholar , Walzer, ‘Kosovo’, p. 334.

44 There is, to me, something old-fashioned in this concern for satisfying parents. I wonder if it derives from reminiscences by these two theorists about the Vietnam War, when many of the young men who were drafted were not able to vote, and thus still children in the eyes of the state.

45 It may be that a child wrongs his parents by disrespecting their wishes for him not to go fight, but this is a question about the morality of filial duty not public policy. The Israeli state does allow parents a veto over their child's service on the front lines (the parent must sign to permit an only child to go to the front line), but the Israeli army is also a conscripted one.

46 Of course, the country as a whole must agree to equip, feed, house, and employ him, yet, in the case of Kosovo, this was not a problem, it was not the material but the human costs that domestic populaces would not countenance. Spending money to save Kosovars (or to stabilise south-eastern Europe) was acceptable; spending lives was not. However, what if the populaces of the US, Germany and Britain had refused to fund the NATO intervention, would such a refusal have been just? No – a natural duty to aid those in dire need when it can be done at tolerable expense would require material expenditures to save foreigners from harm. The sanctity of the moral autonomy of individuals keeps us from conscripting lives, however that same sanctity can justify conscripting dollars.

47 Again, here I am evaluating the moral quality of the politics, not the political legitimacy of a procedure. A requirement for majority consent to war may be desirable in an all-things-considered moral judgment, but it does not follow that we must agree that the majority will always make the (morally) right decision. In pointing out a case where the majority errs, one does not necessarily advocate revolution, but rather reflection. (It should be noted, furthermore, that in this case the subject of evaluation is public opinion – which allegedly shaped the decisions of leaders – rather than any particular act of the majority).

48 One possible justification for the NATO action might be found in an ideal consent criterion identified by Tesón: ‘One solution is along ideal consent lines: the action is justified if all of the persons involved in the event, that is, those who would be sacrificed and those who would be saved (not knowing whether or not they would have been one or the other), would have agreed in advance that the action would have been appropriate’. This criterion gives room for self-regarding action on the part of the intervener – allowing not just the necessary innocent deaths that would occur with the use of any means, but even innocent deaths that are extra with the result of saving interveners' lives. Tesón does add that ‘[a] crucial related requirement, of course, is that the intervenor avoid as much as possible collateral deaths and damage, and that, where those collateral deaths are unavoidable, the intervenor abide by the doctrine of double effect’. NATO leaders could have plausibly argued that their action met this moderate requirement of intention as well as the standard of double effect. Tesón, ‘The Liberal Case for Humanitarian Intervention’, pp. 119, 20.

49 Walzer, Just and Unjust Wars, note 156.

50 Ibid., p. 156.

51 Dunlap, ‘Kosovo, Casualty Aversion, and the American Military Ethos’, p. 5.

52 One of the distinguishing criteria of the category of ‘civilians’ and ‘noncombatants’ is that they are not the proper enemy in war. Terms like ‘enemy civilian’ cause even greater complications in the context of humanitarian interventions where the preservation of the lives of at least some of the civilians constitutes a war aim.

53 Miller, ‘Legitimation, Justification, and the Politics of Rescue’, p. 396.

54 One frustrating aspect of the NATO leaders' responses to Kosovo was that they seemed, at times, to want to have it both ways – justifying the action in some fora as a security measure but justifying their reticence to risk troops on the grounds of lack of political will to sacrifice lives for essentially humanitarian objectives. Even if it is the case that political leaders will always re-describe a humanitarian mission in terms of security in order to gain political support, the use of humanitarian soldiers would remove the supposed constraints that attach to soldiers who have only volunteered with their nation's security in mind and unambiguously grant the moral option of committing soldiers qua soldiers to humanitarian missions.

55 Buchanan, , Justice, Legitimacy, and Self-Determination, p. 23Google Scholar .

56 See Jakobsen, Peter V., ‘The Danish Approach to UN Peace Operations After the Cold War’, International Peacekeeping, 5:3 (1998)CrossRefGoogle Scholar .

57 Selective conscientious objection obviously raises a set of serious practical issues, as well as concerns about opportunism.

58 Daniker, Gustav. ‘Intervention as a Challenge for the Military’, in Keren, Michael and Sylvan, Donald (eds), International Intervention (London: Frank Cass, 2002), p. 117Google Scholar .

59 Shue, ‘Limiting Sovereignty’, p. 27.