Hu m a n i t a rian interven ti on is usu-a lly discussed as an excepti on tothe non i n terven ti on pri n c i p l e .

According to this pri n c i p l e , s t a tes are for-bi d den to exercise their aut h ori ty, and cer-t a i n ly to use force , within the ju ri s d i cti onof o t h er state s . The principle finds firmsu pport in the Un i ted Na ti ons Ch a rter,wh i ch permits a state to defend itsel f f roma t t ack but forbids the use of a rm ed forcea gainst the terri torial integri ty or po l i ti c a li n depen den ce of o t h er state s . Ta ken litera l-ly, these provi s i ons pro h i bit arm ed inter-ven ti on , i n cluding interven ti on to pro tecthuman ri gh t s . And in gen era l , hu m a n i t a ri-an interven ti on finds scant su pport inm odern intern a ti onal law.

There is,however, a much older traditionin which the use of force is justified not onlyin sel f - defense but also to punish wron gsand protect the innocent. This tradition is ins ome ten s i on with modern intern a ti on a ll aw and espec i a lly with the UN Ch a rter. It

holds that armed intervention is permissibleto en force standards of c ivi l i zed con du ctwh en ru l ers vi o l a te those standard s , a n dfinds ex pre s s i on tod ay in the wi dely hel dop i n i on that state s , acting unilatera lly orcollectively, are justified in enforcing respect

57

The Moral Basis of HumanitarianIntervention

Terry Nardin*

If one person is able to save another and does not save him, he transgresses the commandment,Neither shalt thou stand idly by the blood of thy neighbor.

Maimonides1

To those for whom the greatest threat to the future of international order is the use of force in theabsence of a Security Council mandate, one might say: leave Kosovo aside for a moment, andthink about Rwanda. Imagine for one moment that, in those dark days and hours leading up tothe genocide, there had been a coalition of states ready and willing to act in defense of the Tutsipopulation, but the Council had refused or delayed giving the green light. Should such a coali-tion then have stood idly by while the horror unfolded?

UN Secretary-General Kofi Annan2

* Earl i er vers i ons of this paper were pre s en ted at theTravers Ethics Con feren ce , Un ivers i ty of Ca l i fornia atBerkeley in December 1999; a symposium sponsored bythe Center for Global Peace and Conflict Studies at theUn ivers i ty of Ca l i fornia at Irvine in May 2 0 0 0; t h ea n nual meeting of the In tern a ti onal Studies As s oc i a-ti on in Febru a ry 2 0 01, and con feren ces hosted by theCen ter for Eu ropean Studies and the Ca rr Cen ter forHuman Rights Policy at Harvard University in Januaryand Septem ber 2 0 01. I am gra teful to participants inthese events and to the editors and reviewers of Ethics& International Affairs for helpful criticism and advice.1 Mi s h n eh To ra h X I , 5, 1, 14, glossing Levi ticus 1 9:1 6, a stra n s l a ted by Hyman Kl ein in The Code of Ma i m o n i d e s ,Book Eleven: The Book of To rt s, Yale Judaica Seri e s , vo l . 9(New Haven: Yale University Press, 1954), p. 198.2 The Sec ret a ry - G en era l ’s An nual Report to the Gen era lAs s em bly, Septem ber 2 0, 1 9 9 9 (UN Press Release SG/SM713 6 and GA 9 5 9 6) . Also publ i s h ed as “Two Con cepts ofSoverei gn ty,” Eco n o m i s t, Septem ber 1 8, 1 9 9 9.

Rep i n ted from Et h i cs & In tern a tional Af f a i rs 1 6 ,n o. 2 .© 2002 by Ca rn egie Council on Ethics and In tern a ti onal Af f a i rs .

for human ri gh t s . It is this en du ring trad i ti on ,not current intern a ti onal law,that best ex p l a i n sthe moral basis of hu m a n i t a rian interven ti on .

My stra tegy in this arti cle is to rel oc a te dis-c u s s i on of hu m a n i t a rian interven ti on , m ov-ing it out of the familiar disco u rse ofs overei gn ty and sel f - defense and into the dis-co u rse of recti f ying wron gs and pro tecti n gthe innocen t . I do this in two ways . F i rs t , Iexamine arguments made in early modernEu rope for using arm ed force to uphold nat-u ral law. I want to understand how what wen ow call hu m a n i t a rian interven ti on was con-ceived by mora l i s t s ,t h eo l ogi a n s , and ph i l o s o-ph ers wri ting abo ut intern a ti onal rel a ti on sbefo re the em er gen ce of m odern intern a ti on-al law. My aim is not to re ad current con cern sb ack into a peri od that might not have sharedt h em , but ra t h er to see wh et h er earl i er ide a sa bo ut the use of force to pro tect people fromi n ju ries inflicted or to l era ted by their owngovern ors might illu m i n a te current deb a te s .Secon d , I con s i der how hu m a n i t a rian inter-ven ti on is ju s ti fied within a powerful refor-mu l a ti on of n a tu ral law worked out byph i l o s oph ers influ en ced by Im m a nu el Ka n t .This po s t - Ka n tian vers i on of n a tu ral law,wh i ch I fo ll ow Alan Don a gan in calling “com-m on mora l i ty,” su ggests why hu m a n i t a ri a ni n terven ti on remains mora lly defen s i bl ede s p i te modern ef forts to make it ill ega l .3

H U M A N I TARIAN INTERVEN-

TION IN EARLY MODERN

N ATURAL LAW

In twen ti et h - cen tu ry intern a ti onal law, a ju s twar is above all a war of s el f - defen s e . But six-teenth- and seven teen t h - cen tu ry Eu rope a nm oralists ju s ti fied war as a way to uphold lawand pro tect ri gh t s , of wh i ch sel f - defense wason ly on e . Ru l ers , these moralists argued ,h avea ri ght and som etimes a duty to en force cer-

tain laws beyond their re a l m s . Some of t h e s ebel ong to the “l aw of n a ti on s” (ius gen ti u m ),u n ders tood not as intern a ti onal law but asgen eral principles of l aw recogn i zed in manyd i f ferent com mu n i ti e s . This law of n a ti ons isan indu ctively establ i s h ed body of n orm scom m on to all or most peop l e s . But the mosti m portant class of u n ivers a lly en force a bl el aws is “n a tu ral law,” u n ders tood as com pri s-ing precepts that can be known by re a s on anda re binding on all ra ti onal bei n gs . What thel aw of n a ti ons and natu ral law have in com-m on is that each iden ti fies principles moregen eral than the of ten - i d i o s y n c ra tic norms ofp a rticular com mu n i ti e s . And in manyre s pect s , t h eir principles are similar, t h o u ght h ere are gl a ring excepti on s . Sl avery, forex a m p l e , was long rega rded as perm i t ted bythe law of n a ti on s ,s i m p ly because it was wi de-ly practi ced .But slavery cannot be defen ded asperm i s s i ble under natu ral law, t h o u gh manyh ave , m i s t a ken ly, so defen ded it. The ri ght toen force these laws was unders tood to ju s ti f yru l ers in punishing moral wron gdoing anddefending the innocen t , wh erever su ch acti onwas needed .

The med i eval litera tu re on just war, l i kethat of m odern ti m e s , is con cern ed wi t hwrongs done by one community to another.When Aquinas suggests that a “just cause” isrequired for resorting to war, he is thinkingof situations in which one community actsto punish another. “Those who area t t acked ,” he says , “should be attackedbecause they deserve it on account of somefault.”4 And he goes on to quote Augustine,for wh om a just war is one that “aven ge s

58 Terry Nardin

3 Alan Donagan, The Theory of Morality (Chicago: Uni-vers i ty of Ch i c a go Pre s s , 1 977; repri n ted with correc-tions, 1979).4 Saint Th omas Aqu i n a s , Su m m a ry of T h e ol o gy I I - I I ,Q. 40, a. 1, in On Law, Morality, and Politics, ed. WilliamP. Baumgarth and Richard J. Regan,S. J. (Indianapolis:Hackett Publishing Company, 1988), p. 221.

wrongs”—for example, when a state “has tobe punished for refusing to make amen d sfor the wrongs inflicted by its subjects or torestore what it has unjustly seized.”5 To get tothe idea of hu m a n i t a rian interven ti on , wemust shift our attention from wrongs doneby one community to another to those doneby a government to its own subjects, eitherdirectly or by permitting mistreatment. Andi f the ju s ti f i c a ti on of war is to prevent orpunish wrongdoing, it is not hard to makethis shift. Th omas More accomplishes iteffortlessly when he reports that the Utopi-ans go to war on ly “to pro tect their ownland, to drive invading armies from the ter-ri tories of t h eir fri en d s , or to libera te anoppressed people,in the name of humanity,f rom tyra n ny and servi tu de .”6 In thea b s en ce of a norm of n on i n terven ti on , n ospecial justification for humanitarian inter-vention is needed. Even those who treat “theliberation of an oppressed people” as need-ing furt h er ju s ti fic a ti on wi ll have an easiertime making their case if the core justifica-tion for war is to “avenge wrongs.”

One kind of oppre s s i on that med i eva lmoralists saw as justifying intervention wasthe mistre a tm ent of Ch ri s tians in non -Christian (“infidel”) kingdoms. Some real-i zed that this on e - s i ded con cern could begen era l i zed to inclu de situ a ti ons in wh i chinfidels injure one another, and even situa-tions in which Christians injure infidels. Inmedieval discourse,the question of whethera Christian ruler might properly use force topro tect the vi ctims in these situ a ti ons waseventually framed as a question of whetherthe pope , as the recogn i zed univers a la ut h ori ty, should interven e . Because thepope was re s pon s i ble for seeing that a llhuman bei n gs obey God ’s laws , he co u l dpunish vi o l a ti ons by anyon e , i n f i del orCh ri s ti a n . Papal interven ti on , h ere , m e a n tthat the pope would aut h ori ze pri n ces to

i n terven e , just as UN interven ti on meansthat states are authorized to use armed forceunder its mandate.

A key fig u re in this discussion , on wh ommany sixteenth- and seventeenth-centurymoralists relied, is the thirteenth-centurycanon lawyer Sinibaldo Fieschi, who wrotea ut h ori t a tively as Pope In n ocent IV on rel a-ti ons bet ween the papacy and non - Ch ri s ti a ns oc i eti e s . The immed i a te con text of In n ocen t’sd i s c u s s i on was the Cru s ade s , wh i ch ra i s ed thei s sue of wh et h er it is mora lly ju s ti fia ble forCh ri s tians to invade lands ru l ed by non - Ch ri s-tian princes. He argued that infidels, beingra ti onal cre a tu re s ,a re capable of making thei rown dec i s i on s , i n cluding forming civil soc i-eties and ch oosing ru l ers . Fu rt h erm ore , i n fi-dels cannot be forc i bly converted . But bec a u s ethe go s pel is ad d re s s ed to everyon e , the popemust be concerned with infidel as well asChristian souls. And all men are under theju ri s d i cti on of n a tu ral law.

Put ting these arguments toget h er, In n o-cent con clu des that the pope has aut h ori ty toact wh en infidels vi o l a te natu ral law. Th i sm i ght happen if i n fidel ru l ers vi o l a te this law,or if i n fidel su bj ects vi o l a te it and their ru l ersdo not prevent or punish them . So, for ex a m-p l e , i f i n fidels practi ce ido l a try or sodomy,wh i ch In n ocent thinks are forbi d den by nat-u ral law, Ch ri s tians are ju s ti fied in punishingt h em . Ch ri s tians can also seek to prom o te thes p i ri tual good of i n f i dels by pre aching thego s pel among them . And should infidel si n terfere with Ch ri s tian mission a ri e s , t h ei rri ght to pre ach can be defen ded by arm edforce . F i n a lly, force can be used to preven tpers ec uti on of Ch ri s tians in infidel king-dom s . In short , the pope can intervene in any

The Moral Basis of H u m a n i ta rian Interven ti on 59

5 Augustine, Questions on the Heptateuch 6.10, quotedby Aquinas, On Law, Morality, and Politics, p. 221.6 Th omas More , Utop i a (1 51 6) , ed . G eor ge M. Loga nand Robert M.Adams (Cambridge: Cambridge Univer-sity Press, 1989), pp. 87-88.

com mu n i ty to en force natu ral law. In n ocen tI V, no naïf in these matters ,k n ew that Ch ri s-tian ru l ers would twist these principles to ju s-tify the con quest of i n f i del soc i eti e s . Het h erefore insisted that Ch ri s tians could wagewar against infidels to en force natu ral lawon ly with papal aut h ori z a ti on .7

These principles were applied three cen-tu ries later by Fra n c i s co de Vi toria to theSpanish con quest of Am eri c a . This brut a lconquest was the subject of a long-runningdebate concerning the rights and conduct ofthe conquerors. But there was a new elementin this debate, for Europeans saw the indige-nous inhabitants not only as infidels but alsoas barb a ri a n s , that is, as uncivi l i zed , evensu b hu m a n . These barb a rians were disti n-guished from civilized peoples by their can-nibalism and ri tuals of human sac ri f i ce ,practi ces that Eu ropeans of ten invo ked tojustify subjecting them to Spanish rule.

D rawing ex p l i c i t ly upon In n ocent IV,Vi to-ria con s i ders wh et h er cannibalism andhuman sac ri fice provi de grounds for the con-qu e s t . He argues that although natu ral lawpro h i bits these act s , this does not nece s s a ri lyju s tify war against those who practi ce them .Ot h er cri m e s — adu l tery, s odomy, and thef t ,for example—also con travene natu ral law,but one cannot ju s t ly wage war against co u n-tries in wh i ch these crimes occ u r. “Su rely,” h ewri te s , “it would be stra n ge that forn i c a ti onshould be wi n ked at in Ch ri s tian soc i ety, butu s ed as an excuse for con qu ering the lands ofu n bel i evers ! ”8 If a rm ed interven ti on is a per-m i s s i ble re s ponse to cannibalism and hu m a ns ac ri fice , it must be because these crimes aree s pec i a lly evi l . In su ch cases,o ut s i ders are ju s-ti fied in defending the vi cti m s , even if t h eyh ave not invi ted su ch assistance .

L i ke modern defen ders of hu m a n i t a ri a ni n terven ti on , Vi toria insists that a war to pro-tect the innocent must be stri ct ly limited . Ifthe Spaniards wage war to su ppress cri m e s

a gainst natu ral law, t h ey cannot lawf u lly con-ti nue the war on ce it has ach i eved its goa l ,n orcan they sei ze the property of the Indians orovert h row their govern m en t s . In otherword s , a lawful interven ti on cannot, wi t h o utad d i ti onal ju s ti fic a ti on , become a lawful con-qu e s t . Moreover, i f Eu ropeans do, for wh a t-ever re a s on , come to rule the In d i a n s , t h eymust govern them for their own good .9

Some defenders of the conquest held thatbecause the Indians were su b hu m a n“brutes,” it was lawful to hunt and kill themat wi ll . Ot h ers argued that the barb a ri a n s ,though human, were intellectually deficientand cultu ra lly pri m i tive . These “bruti s hmen” were what Aristotle had called “natu-ral slave s” — human bei n gs po s s e s s i n genough reason to follow commands but noten o u gh to assume re s pon s i bi l i ty for thei rown affairs . Th ey were , m oreover, s l ave swithout masters, an anomaly for which theSpanish conquest seemed an obvious reme-dy. Vitoria rejects these claims. The Indiansa re not natu ral slave s . Even though thei rbel i efs and con du ct are stra n ge and of fen-sive,they have cities,laws, governments,andproperty, and in this respect are no differentf rom other human bei n gs . But even if t h eIndians were incapable of governing thei rown affairs,this would hardly justify killing,enslaving, or expropriating them. Like thatof ch i l d ren , m ad m en , or the sen i l e , t h ei rincapacity calls for paternal care.

60 Terry Nardin

7 James Mu l doon , Pope s , Law yers , and In f i d els: T h eC h u rch and the No n - C h ri s tian Wo rld 1 250-1 5 50(Philadelphia: University of Pennsylvania Press, 1979),pp. 10-11, 12.8 Fra n c i s co de Vi tori a , “On Di et a ry Laws , or Sel f -Restraint” (1537),in Political Writings, ed. Anthony Pag-den and Jeremy Lawra n ce (Ca m bri d ge : Ca m bri d geUniversity Press, 1991), p. 230.9 Ibid., pp. 225-26; and Vitoria, “On the American Indi-a n s” (1 5 3 9) , in Pol i tical Wri ti n gs, ed . Pa gden andLawrance, p. 288.

An o t h er defen der of Indian ri gh t s , t h em i s s i on a ry priest Ba rto l omé de las Ca s a s ,argues that the Spaniards were not justifiedin harming many to rescue a few. Su chinjury is disproportionate and, when its vic-tims are innocen t , i n h eren t ly immora l . “ Inthose provi n ces wh ere unbel i evers eathuman flesh and sacrifice innocent persons,on ly a few pers ons commit these cri m e s ,wh ereas innu m era ble pers ons . . . do notparticipate in these acts in any way.”10 Thecon qu i s t adors wage war on the pretext off reeing the innocen t , but they annihilatethousands of i n n ocen t s . Luis de Mo l i n a ,Domingo De Soto, and other contemporarycritics of the conquest make similar points.

The Protestant Hugo Grotius is a key fig-ure in debates over intervention to upholdn a tu ral law. The intern a ti onal mora l i ty hedefends is one that permits su ch interven-tion but does not demand it.Grotius’s “thin”or minimal morality requires human beingsto ref rain from inju ring one another butdoes not require that they help one another.The basis of this mora l i ty, wh i ch heexpounds in an unpublished early work, isself-preservation. Because the desire for self-pre s erva ti on is inherent in their natu re ,human beings cannot be blamed for actingon it. And if t h ey have a ri ght to pre s ervethemselves, they must also have the right toacqu i re the things needed for life and todefend their lives and po s s e s s i on s .1 1 Th e s epresocial rights, which are the foundation ofnatural law, are enjoyed not only by naturalpers ons but also by artificial pers on s , l i kestates, that coexist in a condition of nature.In su ch a con d i ti on , the first impera tive iss el f - pre s erva ti on . And because it rests ons el f - pre s erva ti on , the law that governs thiscon d i ti on , the law of n a tu re , is a law thatpre s c ri bes mutual forbe a ra n ce , not ben efi-cen ce . Na tu ral law requ i res on ly that weleave one another alone;it does not demand

that we assist or protect one another. But wemay assist or protect one another. It wouldcon travene the te aching of Ch ri s t , Gro tiu sargues, to say that Christians have nothingin com m on with non - Ch ri s ti a n s , for thei n ju n cti on to love on e’s nei gh bor meansthat a Ch ri s tian must love every hu m a nbeing. It follows that “the protection of infi-dels from injury (even from injury by Chris-tians) is never unjust.”12 He concludes thatthe Dutch East India Company might justlywage war on the Portuguese for seeking toprevent the Sultan of Jo h ore from trad i n gwith the Dutch.13 This conclusion may causeus to raise an eyebrow with re s pect toGro tiu s’s motive s , but it does not under-mine his argument that justice may requireforcibly protecting the rights of anyone whois the victim of unjust coercion.

In a su b s equ ent work , Gro tius askswhether a sovereign can rightly wage war topunish violations of natural law that do notaffect him or his subjects. His answer is thatsovereigns have the right to punish any actsthat “excessively violate the law of nature orof nations in regard to any persons whatso-ever.” He invokes Innocent IV against thosewho argue that punishment is a civil powerand therefore that a govern m ent has nori ght to wage war to defend pers ons overwh om it has no legal ju ri s d i cti on . If weaccept this vi ew, Gro tius argues, no sover-ei gn would be able to punish another forh a rming him or his su bj ect s . The ri ght to

The Moral Basis of H u m a n i ta rian Interven ti on 61

10 Ba rto l omé de las Ca s a s , In Defen se of the In d i a n s(1552), trans.Stafford Poole (DeKalb: Northern IllinoisUniversity Press, 1992), p. 207.1 1 Hu go Gro tiu s , De jure pra ed a e (1 6 04) , p u bl i s h ed inEnglish as Commentary on the Law of Prize and Booty,trans. Gwladys L. Williams (Oxford: Clarendon Press,1950), p. 10.12 Ibid., p. 315.13 Ri ch a rd Tu ck , The Ri ghts of War and Pe a ce: Pol i ti c a lT h ou ght and the In tern a tional Ord er from Grotius to Ka n t( Ox ford : Ox ford Un ivers i ty Pre s s , 1 9 9 9) , pp. 93-9 4.

punish is based not on civil power but on thel aw of n a tu re , wh i ch ex i s ted before therewere civil societies. Therefore, wars are just-ly waged on those who “sin against nature”by en ga ging in cannibalism, p i rac y, a n do t h er barb a ric practi ce s . “ Rega rding su chbarbarians, wild beasts rather than men, onemay rightly say . . . that war against them wassanctioned by nature; and . . . that the mostjust war is against sava ge be a s t s , the nex tagainst men who are like beasts.”14 BecauseGrotius does not distinguish between bestialm en and be s tial soc i eti e s , s en ten ces likethese justify punitive wars that go far beyondhu m a n i t a rian interven ti on , n a rrowlydefin ed . Th ey point to deep worries abo utthe threat that su ch soc i eties pose to civi-lization itself, as Europeans understood it.

According to the new understanding ofi n tern a ti onal rel a ti ons that was em er gi n ga l ong with the idea of the soverei gn state ,any government has the right to enforce nat-ural law against any other government thatis guilty of vi o l a ting it. In the “s t a te ofnature” postulated by Grotius and other sev-en teen t h - cen tu ry natu ral law theori s t s ,there is no enforcing power superior to thatof the sovereign of each state. Because in thes t a te of n a tu re unpunished vi o l a ti ons ofn a tu ral law by one soverei gn harm everyo t h er soverei gn by undermining natu ra ll aw, a ny soverei gn can punish su ch vi o l a-ti on s . A soverei gn is even ju s ti fied in pun-ishing crimes that another commits againsthis own su bj ect s , provi ded the of fense is“ very atrocious and very evi den t .”1 5 Th i sgen eral “ri ght of p u n i s h m en t” own ed byevery sovereign in the international state ofn a tu re therefore ju s tifies hu m a n i t a ri a nintervention, at least in some situations.

The non i n terven ti on pri n c i p l e , wh i chwas increasingly important in internationall aw du ring the ei gh teenth and nineteen t hcen tu ri e s , can be unders tood as a re acti on

against the view that every state has a rightto enforce natural law. The chief objection tothis doctrine was made by Sa mu elPu fen dorf in works publ i s h ed du ring the1 67 0s . “We are not to imagi n e ,” Pu fen dorfwrites, “that every man, even they who livein the liberty of nature,has a right to correctand punish with war any pers on who hasdone another an injury,” for it is “contrary tothe natural equality of mankind for a man toforce himself upon the world for a judge anddecider of controversies. . . . Any man mightmake war upon any man upon such a pre-tense.”16 Nevertheless, any person may just-ly assist any vi ctim of oppre s s i on wh oi nvi tes assistance . “ Kinship alon e” — t h emere fact of common humanity—“may suf-f i ce for us to go to the defense of a noppressed party who makes a plea for assis-tance, so far as we conveniently may.”17 ForPu fen dorf , to come to the aid of t h eoppre s s ed is not on ly a ri ght but in som ecases a duty. It is, h owever, an “ i m perfectduty”—not a specific obl i ga ti on like thatprescribed by a contract but a duty of benef-icence to be performed insofar as it can beperformed without disproportionate incon-venience. The proviso that the victim musth ave invi ted assistance cannot, h owever,bear the weight Pufendorf gives it in distin-guishing justifiable humanitarian interven-ti on from unju s ti f i a ble interferen ce by as overei gn who has usu rped the of f i ce ofjudge over other sovereigns. Morally speak-

62 Terry Nardin

14 Hugo Grotius, De jure belli ac pacis(1625), On the Lawof War and Peace, 1646 edition trans. Francis W. Kelsey(Oxford: Oxford University Press, 1925), pp. 504-506.15 Ibid., p. 508.1 6 Sa mu el von Pu fen dorf , Of the Law of Na tu re andNations (1672), trans.C.H. Oldfather and W. A. Oldfa-t h er (Ox ford : Cl a ren don Pre s s , 1 934) , p. 847. I havemodernized the spelling and punctuation.17 Samuel von Pufendorf, On the Duty of Man and Cit-izen, ed. James Tully (Cambridge: Cambridge Universi-ty Press, 1991), p. 170.

ing, it is the act of oppression, not a requestfor assistance, that justifies an intervention.

The natural law argument for humanitar-ian intervention continued to erode duringthe ei gh teenth and nineteenth cen tu ries asthe vi ew that intern a ti onal law is “po s i tivelaw”based on the will of states emerged. Theen l i gh ten m ent ph i l o s oph er Ch ri s tian vonWo l f f and his pop u l a ri zer, E m m eri ch deVa t tel , a re among the last to treat intern a-tional law as part of natural law (that is, asbel on ging in ef fect to mora l i ty ra t h er thanto positive law),and both dismiss the classicargument justifying humanitarian interven-tion. According to Wolff, “A punitive war isnot allowed against a nation for the reasonthat it is very wicked, or violates dreadful lythe law of nature, or offends against God.”And he ex p l i c i t ly asserts the principle ofn on i n terven ti on , even wh en a soverei gna buses his su bj ect s .1 8 Va t tel agree s , t h o u ghhe adds a qualification:if “by his insupport-able tyranny”a prince “brings on a nationalrevolt against him,” any foreign power “mayri gh tf u lly give assistance to an oppre s s edpeople who ask for its aid.”1 9 But in thea b s en ce of a rm ed rebell i on interven ti onmust be condemned: to say that one nationcan use force to punish another for gravem oral abuses is to open the door to warmotivated by religious zealotry or econom-ic ambition.20 Here we have a new principle,ad ded to Pu fen dorf ’s requ i rem ent that thevictims of oppression must request outsidea s s i s t a n ce : t h ey must mount their ownarmed resistance.By the middle of the nine-teenth century, this principle was being usedto argue against humanitarian intervention.In his essay “A Few Words on Non-interven-tion, ” J. S. Mill argues that the subjects of anoppre s s ive ru l er must win their own free-dom , wi t h o ut out s i de assistance , and theymust suffer the consequences if their strug-gle is unsuccessful. Not even bloody repres-

sion can justify armed intervention by for-eign powers, for were such intervention per-m i s s i bl e , the idea of “s el f - determ i n a ti on ,”which Mill thinks is basic to political com-munity, would be meaningless. 21

Though he is a moralist, not an interna-ti onal law yer, Mi ll perfect ly arti c u l a tes theview of humanitarian intervention we findin mainstream nineteenth-century interna-tional law. W. E. Hall, the author of a stan-d a rd English work on intern a ti onal law atthe end of that century, treats humanitariani n terven ti on under the heading “ In terven-tions in Restraint of Wrongdoing,” a precisetitle,morally speaking. He argues that tyran-nical oppression by a government of its ownsubjects, including religious persecution ormassacres and brutality in a civil war, havenothing to do with relations between states.And he insists that we must not confuse out-raged public opinion with the requirementsof law. Some commentators, he writes, holdthat states can lawfully intervene “to put anend to crimes and slaugh ter,” but in thea b s en ce of con s en sus on this poi n t , t h ei rju d gm ent is not law.2 2 If t h ere is any lega lbasis for humanitarian intervention,it mustrest not on principles of i n tern a ti on a lmorality but on agreement among states torecogn i ze su ch principles as law. Ha ll here

The Moral Basis of H u m a n i ta rian Interven ti on 63

1 8 Ch ri s tian von Wo l f f , The Law of Na tions Tre a tedAccording to a Scientific Method (1748), trans. Joseph D.Drake (Oxford: Oxford University Press, 1934),section637; sections 258 and 1011.19 Emmerich de Vattel, The Law of Nations,or Principlesof Na tu ral Law Appl i ed to the Co n du ct and Af f a i rs ofNations and Sovereigns(1758), trans. Charles G.Fenwick(Wa s h i n g ton , D. C . : Ca rn egie In s ti tuti on , 1 9 1 6) , p. 13 1;see also p. 340.20 Ibid., p. 116.21 J. S. Mill, Dissertations and Discussions, 2nd ed.(Lon-don: Longmans, 1867), vol. 3, pp. 153-78. The essay wasfirst published in 1859.2 2 Wi lliam Edw a rd Ha ll , A Tre a ti se on In tern a ti o n a lLaw, 6th ed . ( Ox ford : Ox ford Un ivers i ty Pre s s , 1 9 0 9) ,pp. 284, 287-88, 285 n.

i nvo kes the doctrine—a keys tone of l ega lpositivism—that international law is enact-ed by the joint will of sovereign states.Just aslegislation is the criterion of law within eachstate,so agreement between states is the cri-terion of international law. The age of natu-ral law had come to an end.

COMMON MORALITY AND

THE DUTY TO PROT E C T

Though banished from the realm of positivelaw, natural law did not simply disappear. Itcon ti nu ed to march under the banner ofmorality. To distinguish this latter-day natu-ral law, s tri pped of its rel i gious and lega lconnotations, from the mores of particularcommunities, we may speak of a “commonm ora l i ty ” binding on all human bei n gs .Com m on mora l i ty assumes that hu m a nbei n gs are thinking, ch oosing agen t s , a n dthat everyone has an equal right to think andchoose. It therefore requires us to recognizethe inherent capacity of each person to makechoices of his or her own. The foundation ofcommon morality, then,is the principle thate ach pers on must re s pect the agency ofevery other. This is Ka n t’s “principle ofre s pect .”2 3 The more specific precepts ofcommon morality are interpretations of thisbasic principle.

We must distinguish com m on mora l i tyf rom the mores of p a rticular com mu n i ti e s .Its principles con s ti tute a com m on mora lworld in wh i ch human bei n gs have ri ghts notas mem bers of this or that com mu n i ty but asm em bers of the human com mu n i ty. Com-m on mora l i ty rests nei t h er on po s i tive lawn or on custom . It is, ra t h er, the produ ct ofc ri tical reflecti on on laws and custom s ,and inthis sense may be said to be known by “re a-s on .” Its principles provi de a standard “by

wh i ch everybody ought to live , no matterwhat the mores of his nei gh bors might be .”24

The principles of com m on mora l i ty — l i kethose that pro h i bit mu rder and del i bera teh a rm to innocents and te ach fri en d s h i p,coopera ti on , and fairn e s s — a re basic to civi-l i zed life and are in fact recogn i zed in mostcom mu n i ties and trad i ti on s . This broadrecogn i ti on is of i m m ense practical impor-t a n ce , for it means that in appealing to com-m on mora l i ty the moralist is appealing toprinciples whose aut h ori ty has alre ady beengra n ted ,i m p l i c i t ly if not ex p l i c i t ly, by a gre a tm a ny peop l e . Th ere are cert a i n ly people wh odo not bel ong to the com m on moral worl d ,but one should not undere s ti m a te the degreeto wh i ch its principles are gen era lly ack n owl-ed ged .25 It is important to em ph a s i ze ,h owev-er, that although the principles of com m onm ora l i ty may be “com m on” in the sense thatt h ey are recogn i zed in different com mu n i ti e s ,t h eir va l i d i ty does not depend on su ch recog-n i ti on . Th ey are requ i red by a con cepti on ofthe pers on and of what is owed to pers on s ,not by conven ti on . Com m on mora l i ty is ac ri tical mora l i ty possessing wi der aut h ori tythan the moral practi ces of p a rticular com-

64 Terry Nardin

2 3 Im m a nu el Ka n t , Fou n d a tions of the Met a p hys i cs ofMo ra l s (1 785) , tra n s . Lewis Wh i te Beck (In d i a n a po l i s :Bobbs-Merrill, 1959), pp. 66-67.24 Donagan, The Theory of Morality, p. 1. My sketch ofcom m on mora l i ty draws freely on Don a gan and onMichael Walzer, Just and Unjust Wars (New York: BasicBoo k s , 1 977) . On the con n ecti on bet ween the argu-ments of these works,see Joseph Boyle, “Casuistry andthe Boundaries of the Moral World,” Ethics & Interna-tional Affairs11 (1997), pp. 83-98.25 Two recent and especially cogent explorations of therel a ti onship bet ween universal and com munal mora lviews are Amartya Sen,“Human Rights and Asian Val-u e s ,” and Mi ch ael Wa l zer, “ Un iversalism and Jewi s hVa lu e s ,” the Si x teenth and Twen ti eth Mor gen t h a uMemorial Lectures on Ethics and Foreign Policy (NewYork : Ca rn egie Council on Ethics and In tern a ti on a lAffairs, 1997 and 2001).

mu n i ti e s , and for this re a s on it provi des as t a n d a rd by wh i ch to cri ti c i ze these practi ce s .L i ke the idea of human ri gh t s , the idea ofcom m on mora l i ty is oppo s ed to com mu n i-t a rian ethical theories that ground mora lduties on custom and con s en t .

The rel eva n ce of com m on mora l i ty tohu m a n i t a rian interven ti on should by nowbe app a ren t . Hu m a n i t a rian interven ti on isa re s ponse to grave human ri ghts vi o l a-ti on s , and the most basic human ri ghts areu n iversal moral ri gh t s — ri gh t s , in otherword s , that rest on the principles of com-m on mora l i ty. Th ere are , t h en , good re a-s ons for grounding the ethics ofhu m a n i t a rian interven ti on in com m onm ora l i ty and not in particular rel i gious orn a ti onal mora l i ti e s , or even in intern a ti on-al law, wh i ch rests on custom and agree-m en t , not moral re a s on i n g.

Unlike some ethical traditions, commonm ora l i ty does not reg u l a te every aspect oflife. In any situation there is always a widerange of morally permissible responses, andcom m on mora l i ty is for the most partu n con cern ed with ch oosing among them .Com m on mora l i ty is a minimal mora l i tyand for this re a s on must be disti n g u i s h edf rom rel i gious and other trad i ti ons thatmake a broad range of concerns a matter ofm oral duty.2 6 It reg u l a tes the ch oi ces wemake as rational agents, not as adherents ofthis or that tradition. But precisely becauseit rests on a view of human beings as ration-al agents, common morality permits us con-s i dera ble freedom to ch oose as we wi ll . Iti m a gines a human com mu n i ty in wh i chi n d ivi duals pursue their own sel f - ch o s enends, and it seeks to regulate this pursuit sothat the actions of one do not unjustly inter-fere with the actions of others.

Common morality forbids us to use otherhuman bei n gs coerc ively to ach i eve ourends. Using force, without good reason,vio-

lates the principle of respect. This explainsnot only why murder and slavery are wrongbut also why self-defense is morally justifi-a bl e . But com m on mora l i ty does not limitthe use of force to self-defense. It also per-mits us to defend the rights of others whenthose rights are threatened. We are thereforeju s ti f i ed in using force to thw a rt vi o l en cea gainst other pers on s , provi ded those per-s ons are mora lly “ i n n ocen t”—that is, n o tt h em s elves en ga ged in unjust vi o l en ce .Using force to resist those who attack thei n n ocent does not vi o l a te the attackers’rights as free persons because they have, bytheir own actions,lost the moral right to actas they ch oo s e . It is even perm i t ted to killa t t ackers , i f n ece s s a ry, to pro tect their vi c-tims. We are justified in using as much forceas is needed to thw a rt the attack , but notmore—bearing in mind that precise calcula-tions about such matters are impossible.27

Th o u gh derived ulti m a tely from the pri n-ciple of re s pect , the ri ght to use force todefend the innocent from vi o l en ce rests morei m m ed i a tely on the idea of ben ef i cen ce ,wh i ch is the idea that human bei n gs shouldsu pport one another in appropri a te ways . Tore s pect other human bei n gs as ra ti onal agen t smeans not on ly that we must not interferewith their freedom but also that we shouldassist them in ach i eving their en d s . Com m onm ora l i ty is at its core a mora l i ty of con s tra i n t ,but its precepts are not limited to those thatcon s train us. It also asks us to adva n ce thewell - being of o t h ers — by being coopera tive ,h el pf u l , ch a ri t a bl e , and the like—in ways thata re mora lly perm i s s i ble and not dispropor-ti on a tely co s t ly. In other word s , in hel p i n g

The Moral Basis of H u m a n i ta rian Interven ti on 65

2 6 Gro tius of fers a statem ent of this disti n cti on inCh ri s tian trad i ti on wh en he wri tes that in the “h o lylaw” of the New Testament,“a greater degree of moralperfection is enjoined upon us than the law of nature . . .would require.” Law of War and Peace, p. 27.27 Donagan, The Theory of Morality,pp. 85-87.

o t h ers we are forbi d den to do wrong for thei rs a ke and we are not requ i red to do more thanwe can re a s on a bly afford .

G iven the principle of ben eficen ce , com-m on mora l i ty may requ i re us to act wh eno t h ers are in danger of s erious inju ry,wh et h er by acc i dent or as vi ctims of wron g-doi n g. This requ i rem ent is ex pre s s ed in thep a ra ble of the Good Sa m a ritan (Lu ke 1 0:29-3 7) and, m ore poi n tedly, in the divine com-mand that you must not stand idly by thebl ood of your nei gh bor (Levi ticus 1 9:1 6) . Th eprinciple of ben ef i cen ce , wh i ch this com-mand invo ke s ,l e aves us free to dec i de how toprom o te the well - being of o t h ers . Nevert h e-l e s s , i f we are able to provi de immed i a tea s s i s t a n ce to som eone who needs it, weshould provi de that assistance . And thisimplies that we must not all ow anyone to beh a rm ed by vi o l en ce if we can re a s on a bly pre-vent it. In short , a s suming that the costs arenot too high , it is “not merely perm i s s i ble buta duty to em p l oy force against the vi o l ent ift h eir vi ctims cannot otherwise be pro tect-ed .”28 This is the fundamental pri n c i p l eu n derlying hu m a n i t a rian interven ti on .

The principle ad d resses three aspects ofthe dec i s i on to act on beh a l f of pers on st h re a ten ed by vi o l en ce . F i rs t , we must asku n der what circ u m s t a n ces su ch acti on ism ora lly call ed for. Who should be pro tected( who is my “n ei gh bor ” ) , and from wh i chh a rms? Secon d , who should intervene? Wh ois the “t h o u” who is forbi d den to stand idlyby wh en another is in danger? And third ,what must we do to avoid the ch a r ge that wea re standing idly by? And what must we n otdo — what con s tra i n t s , in other word s , mu s twe ob s erve in providing aid? We can usethese qu e s ti ons to illu m i n a te the mora l i ty ofhu m a n i t a rian interven ti on . But in doing sowe must rem em ber that principles alon ecannot determine com p l ex forei gn - po l i c ydec i s i on s . Moral principles can provi de

broad goals to guide del i bera ti on , and theypre s c ri be con s traints on what ch oi ces can bem ade . But they cannot more prec i s ely deter-mine those goals and ch oi ce s . Hu m a n i t a ri a nacti on may requ i re anything from ending am a s s ac re to rebuilding a soc i ety whose insti-tuti ons have failed . Deciding wh i ch of s ever-al mora lly perm i s s i ble co u rses of acti on top u rsue in a particular situ a ti on dem a n d sju d gm ent and pru den ce , but this taskbel on gs to po l i ti c s , not moral ph i l o s ophy.

W h en is humanitarian interven tion per-m i s s i bl e ? For Ma i m on i de s , the bi bl i c a li n ju n cti on is to “s ave” a n o t h er, and theimplication is that the victim’s life is endan-gered . If hu m a n i t a rian interven ti on meansacting to pro tect human ri gh t s , t h ere aremany such rights besides the right to life thatm i ght be thre a ten ed , i n cluding ri gh t sa gainst tortu re , a rbi tra ry deten ti on , a n dracial discri m i n a ti on . But usu a lly on ly thegravest violations, like genocide and ethniccl e a n s i n g, a re held to ju s tify arm ed inter-ven ti on . Su ch acts affect the lives of m a nypeople and the fate of entire communities.In the classic ph ra s e , t h ey “s h ock the con-science of mankind.”

It is con s i s tent with com m on mora l i ty toargue that hu m a n i t a rian interven ti on is ju s-ti fied , in pri n c i p l e , in a wi de ra n ge of s i tu a-ti on s , but that practical con s i dera ti on su su a lly overri de this ju s ti fic a ti on .29 But on ecan also ju s tify limiting interven ti on to thegravest abuses by invoking con s i dera ti on sthat arise from the aims of c ivil assoc i a ti on .The state as a coerc ive insti tuti on is mora llyju s ti f i a ble bec a u s e , in pri n c i p l e , it en a bl e shuman bei n gs to fulfill their po ten ti a l i ties byl iving toget h er according to com m on ru l e s .But on ce a state has been establ i s h ed , its citi-

66 Terry Nardin

28 Ibid., p. 86.29 Jerome Sl a ter and Terry Na rd i n ,“ Non i n terven ti on andHuman Ri gh t s ,” Jou rnal of Pol i ti cs 4 8 (1 9 8 6) , pp. 8 6-9 6.

zens must obey the laws it adopts for this pur-po s e ,a s suming these laws are not su b s t a n ti a l-ly unju s t . And a su b s t a n ti a lly just state isen ti t l ed to re s pect by other state s , wh i ch arem ora lly barred from interfering with its gov-ern m en t . The non i n terven ti on principle ist h erefore basic to rel a ti ons bet ween state s . Itis not a mere custom of the intern a ti onal sys-tem . Th ere are moral re a s ons why a statemust be recogn i zed as having ri gh t s , in par-ticular the ri ght that out s i ders re s pect itsi n depen den ce and bo u n d a ri e s . But the sameprinciples that ju s tify the non i n terven ti onprinciple ju s tify excepti ons to that pri n c i p l e .If a govern m ent seri o u s ly vi o l a tes the mora lri ghts of those it govern s , o t h ers may defen dthose ri gh t s , using force if n ece s s a ry. Th en on i n terven ti on principle is not a shiel dbehind wh i ch an unjust state can hide wh i l eit vi o l a tes the moral ri ghts of its su bj ect s .Su ch vi o l a ti on s , i f s erious en o u gh , perm i tforc i ble hu m a n i t a rian interven ti on and mayeven demand it. But re s pect for the ri ghts ofa po l i tical com mu n i ty requ i res that thosevi o l a ti ons be tru ly grave .

Ch ri s tian trad i ti on holds ex p l i c i t ly thata ll human bei n gs are “n ei gh bors .” Vi tori a ,for example, writes that “the barbarians areall our neighbors,and therefore anyone,andespecially princes,may defend them from . . .tyra n ny and oppre s s i on .”3 0 Com m onmorality, also, holds that every human beingis in principle my nei gh bor and thereforeen ti t l ed to assistance , t h o u gh practi c a llyspeaking I may be limited to helping thosewith whom I am connected in some way. Itfo ll ows that hu m a n i t a rian interven ti on isgoverned by the same principles of nondis-c ri m i n a ti on that govern all con du ct . Itwould, for example, be discriminatory in aw ay that de s erves moral con dem n a ti on ifWestern governments acted to redress grossvi o l a ti ons of human ri ghts in Eu rope , butremained indifferent to equivalent or graver

h a rms su f fered by Af ri c a n s . To be su re ,Europeans today do not necessarily have thesame duty to intervene in Af rica as inEurope, for there may be special obligationsor practical constraints that distinguish thesituations. But the case must be made care-fully. No people can be arbitrarily excludedf rom hu m a n i t a rian con cern in ways thatamount to prejudicial discrimination.

Who should interven e ? Hu m a n i t a ri a ni n terven ti on is trad i ti on a lly def i n ed as theuse of force by states to pro tect hu m a nri gh t s . This def i n i ti on pre sumes that it iss t a tes that should do the interven i n g. It issometimes argued that the traditional defi-n i ti on is ob s o l ete because hu m a n i t a ri a nintervention is increasingly a matter of col-lective action under UN auspices,not actionu n dert a ken by states acting on their owna ut h ori ty.3 1 But to say that hu m a n i t a ri a nintervention shouldbe collective is simply toof fer a different answer to the qu e s ti on ofwho should intervene. The moral principleis general: You shall not stand idly by, who-ever you are , i f you can provi de ef fectivea s s i s t a n ce at re a s on a ble cost and wi t h o utneglecting other duties. There are practicalreasons for suggesting that the internationalcommunity should authorize humanitariani n terven ti on s . Su ch interven ti ons may, forex a m p l e , be more likely than unilatera lacti ons to ben efit from co ll ective wi s domand to gain wide support.32 But to insist onsuch authorization is to presume a degree ofjustice and effectiveness at the supranation-al level that the world has not yet achieved.

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30 Vitoria, “On the American Indians,” p. 288.31 For criticism of the traditional definition,see OliverRa m s botham and Tom Wood h o u s e , Hu m a n i t a ri a nIn terven tion in Co n tem po ra ry Co n f l i ct ( Ca m bri d ge ,U.K.: Polity Press, 1996), pp. 113-14.32 Stephen A.Garrett, Doing Good and Doing Well: AnExamination of Humanitarian Intervention (Westport,Conn.: Praeger, 1999), chap. 7.

Th ere are , h owever, m oral re a s ons whys t a tes should ad h ere to intern a ti onal lawand therefore why unilateral interven ti onshould be con dem n ed if i n tern a ti onal lawforbids it. It is regrettable that NATO’s deci-sion to intervene in Kosovo had to be madeoutside the framework of the UN and in am a n n er not ex p l i c i t ly provi ded for by itsown charter, which requires its members todefend one another if a t t acked , but saysnothing about intervention or peacekeepingthat is unrelated to collective defense. But ifunilateral intervention is illegal and proce-dures exist for collective action, and yet thei n tern a ti onal com mu n i ty as a whole isu n a ble to act ef fectively, must indivi du a ls t a tes also “stand idly by”? As Sec ret a ry -G en eral Annan implies in discussing theworld’s failure to act in Rwanda, to say yes isto repudiate common morality.

Some moralists argue that on ly a govern-m ent that re s pects human ri ghts is en ti t l ed toi n tervene to pro tect human ri gh t s .3 3 Th erea re re a s ons for favoring su ch a requ i rem en tin many cases, but the principle is not part ofcom m on mora l i ty. A mu rderer is not forbi d-den to save a drowning ch i l d . The obj ecti on-a ble ch a racter of the Vi etnamese govern m en tin 1 97 9 does not mean that its interven ti on inCa m bod i a , wh i ch en ded the gen oc i de there ,was mora lly wron g.34

What means of prote ction are call ed fo r ?Common morality prescribes that we mustnot stand idly by wh en human lives arethreatened, but this is a very broad injunc-tion. As we have seen, coercive action is noti m m oral if it is aimed at those who arethemselves acting immorally, and providedwe do not pursue good ends by immora lm e a n s . Cl e a rly this means that forces con-du cting hu m a n i t a rian interven ti ons mu s tcomply with the laws of war, as these laws areu n ders tood both in the just war trad i ti onand in international law. It means in partic-

ular that such forces must respect the prin-ciple of noncombatant immunity, which isthat innocent pers ons may not be direct lyattacked either as an end or as a means to anen d , and that the costs of i n d i rect inju rymust not be unfairly distributed.35

The re s ponses we might ch oose are notl i m i ted to those requ i ring military force .War is an ex treme rem edy. The label“hu m a n i t a rian interven ti on” is som eti m e sapplied to transnational charitable efforts torel i eve human su f fering as well as forc i bl ei n terven ti ons to pro tect human ri gh t s .Those who see armed intervention as a kindof just war som etimes pro test that using acommon label muddies the waters by link-ing modes of i n tern a ti onal assistance thatraise different issues and should be handledin different ways . Com m on mora l i ty cer-tainly recognizes as morally relevant the dis-ti n cti on bet ween coerc ive and non coerc iveassistance. But it also prescribes assisting fel-l ow human bei n gs in any ef fective andm ora lly perm i s s i ble manner. It thereforea ll ows a wi de ra n ge of re s ponses to situ a-ti ons in wh i ch lives are en d a n gered , wh i l erecognizing that responses involving the useof force requ i re ad d i ti onal ju s ti f i c a ti on . Itreminds us, too, that military action cannotbe assumed to be effective and that the onlyforce that is morally justifiable is the mini-mum necessary to accomplish its purpose.

In considering what to do, an interveningstate is not barred from weighing the costsand from deciding not to act if those costsare too high. Although beneficence is a duty,

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33 Fernando R. Tesón, A Philosophy of International Law(Boulder, Col.: Westview Press, 1998), p. 59.34 Nicholas J. Wheeler, Saving Strangers: HumanitarianIn terven tion in In tern a tional Soci ety ( Ox ford : Ox fordUniversity Press, 2001), p. 110.35 Walzer provides a clear explanation of the principleof discrimination, and related ideas like double effectand due care, in Just and Unjust Wars, pp. 151-59.

it is what moralists sometimes call an imper-fect duty. Like an individual person,a state isnot obl i ga ted to intervene at great cost toi t s el f . Risking all to save others may bepra i s ewort hy, even saintly, but com m onm ora l i ty does not demand it.3 6 But if n ocountry can be asked to seriously harm itsown interests to assist another, what can wereasonably ask it to do? If I save someone’sl i fe , I am not su ppo s ed to have taken on along-term obligation to care for that person.But the injunction to “save” my neighbor, ifmy nei gh bor is a com mu n i ty, m i ght en t a i lcon ti nu ed invo lvem en t . Arm ed interven-tion to halt a massacre is likely to be only thef i rst of m a ny measu res needed to re s toreorder to a chaotic society and prevent subse-quent massacres. If prevention is important,the challenge for humanitarian policy is tom ove from re s ponding to hu m a n i t a ri a ncrises to forestalling them. And if commonm ora l i ty requ i res civil assoc i a ti on and therule of l aw, a policy of progre s s ivelystrengthening civil institutions at the inter-national level may itself be morally required,as Kant long ago argued in Perpetual Peace.37

It is perhaps no coincidence that the greatesttheorist of common morality was also con-cern ed with the con d i ti ons of a just andpeaceful international order.

In su m , com m on mora l i ty su ggests thathu m a n i t a rian interven ti on is ju s ti f i a bl eunder certain conditions.

It must be an ex tra ord i n a ry rem edy, ch o-s en in re s ponse to grave human ri ghts abu s e sthat cannot be en ded by diplom a tic means.This limitati on recogn i zes that the lega lri ghts of s t a tes cannot be ligh t ly set aside ,a n dthat military interven ti on is an uncert a i nrem edy, wh i ch has great costs of its own .

In terven ti ons should be approved by arecogn i zed intern a ti onal aut h ori ty acting inaccord a n ce with re a s on a bly just intern a-ti onal laws . But if su ch an aut h ori ty doe s

not exist or is su b s t a n ti a lly unjust or inef-fective , ei t h er in gen eral or in a given situ a-ti on , s t a tes may act wi t h o ut its approva l .Wh et h er the UN is a just and ef fective inter-n a ti onal aut h ori ty is a ju d gm ent that thosecon tem p l a ting interven ti on wi ll have tom a ke—and defen d .

Any interven ti on must be con du cted byeffective and morally permissible means. Itmust re s pect dom e s tic and intern a ti on a llaws unless there is good reason to overridethem because they are manifestly unjust orbecause the relevant governments or inter-n a ti onal aut h ori ties are inef fective . Butabove all, those who intervene must respectthe moral laws that forbid harming innocentpeople as a means to an end and that requirea fair distri buti on of risk (by pre s c ri bi n gattention to considerations of “proportion-ality”and “due care”) between the interven-ing forces and those they aim to assist.

Dec i s i ons abo ut wh et h er and how tointervene will always involve a wide range ofcon ti n gen c i e s , for states have no duty tointervene unless they can do so successfullyand at reasonable cost to themselves and too t h ers . It fo ll ows that sel ectivi ty in thechoice of occasions for intervention is bothinevitable and potentially justifiable.

These con clu s i ons are nei t h er novel nore s pec i a lly con trovers i a l . This should be takenas an en co u ra ging sign , su gge s ting that thecon tri buti on of com m on mora l i ty to thedeb a te over hu m a n i t a rian interven ti on is toh elp us cl a rify the ra ti onal fo u n d a ti on ofvi ews whose cogency is alre ady wi delyack n owl ed ged . Its con tri buti on is to indi-

The Moral Basis of H u m a n i ta rian Interven ti on 69

36 Walzer, in his preface to the third edition of Just andUnjust Wa rs (2 0 0 0) , a grees that interven ti on is an“ i m perfect duty,” but he is bi t ter abo ut it: “The mas-sacres go on,and every country that is able to stop themdecides that it has more urgent tasks” (p. xiii).37 Immanuel Kant, Political Writings, 2nd ed., ed. HansReiss (Cambridge: Cambridge University Press, 1991).

c a te ,f rom the standpoint of a caref u lly arti c-

u l a ted and intell ectu a lly powerful po s i ti on ,

wh ere , m ora lly spe a k i n g, a r g u m ents over

p a rticular interven ti ons can and cannot go.

C O N C LU S I O N

I began by briefly contrasting two traditions

of t h o u ght on hu m a n i t a rian interven ti on .

O n e , em bed ded in modern intern a ti on a l

law and the UN Charter, sees intervention as

i n h eren t ly probl em a ti c , given the impor-

t a n ce the law attaches to pre s erving the

po l i tical indepen den ce and terri tori a l

integrity of states. The other, which belongs

to the tradition of natural law or common

morality, sees humanitarian intervention as

an expression of the basic moral duty to pro-

tect the innocent from violence.The tension

between them raises the question of how we

can reconcile the com p l ex insti tuti on a l

duties prescribed by international law with

the more primitive, noninstitutional, duties

of com m on mora l i ty. Com m on mora l i ty

achieves its reconciliation by requiring that

we respect institutions established through

the free exercise of human capac i ti e s — t h e

family, property, the state,and international

l aw — provi ded these insti tuti ons are re a-

s on a bly ef fective and ju s t . The probl em of

hu m a n i t a rian interven ti on , t h en , is analo-

gous to the problem of political obligation.

The question, “Are citizens morally obligat-

ed to obey the laws of the civil soc i ety in

which they live?” becomes, “Are states obli-

gated to obey the law of international socie-

ty ? ” Prec i s ely how inef fective or unjust the

rel evant laws and insti tuti ons must be

before states are en ti t l ed to overri de the

n on i n terven ti on principle or to ign ore the

UN Charter is a practical question to which

no gen eral answer can be given . But it is

helpful to see that this is the right question

to ask in deb a ting hu m a n i t a rian interven-

ti on . Moral guidance can be obt a i n ed nei-

t h er by asserting ex i s ting law, as if i t s

a ut h ori ty were unqu e s ti on a bl e , n or by

asserting moral principles, as if in obeying

hu m a n i t a rian impera tives no atten ti on

need be given to respecting laws, but only by

giving careful attention to the claims of each

in the particular situ a ti ons to wh i ch the

i n tern a ti onal com mu n i ty is call ed to

respond.

As I have emphasized, common morality

does not pre s c ri be answers to many of t h e

practical qu e s ti ons ra i s ed by parti c u l a r

interventions, except within very wide lim-

its. It has little to say about whether acts of

ben ef i cen ce , and therefore hu m a n i t a ri a n

interventions,should be unilateral or collec-

tive, beyond requiring that collective proce-

dures be respected, where they exist and are

not ineffective or unjust. Although it forbids

us to deny any human being the status of

neighbor, it leaves us wide latitude in decid-

ing whom we can assist, by what means we

can assist them,and how much assistance we

can provi de . What com m on mora l i ty doe s

provi de is a way of vi ewing the ethics of

humanitarian intervention that is rooted in

a wi dely shared and ra ti on a lly defen s i bl e

conception of human dignity, and for these

re a s ons rel a tively indepen dent of the con-

tingencies of particular situations. It follows

that the moral principles underlyi n g

hu m a n i t a rian interven ti on do not need to

be rethought “in the post-Cold War world”

or “a f ter Ko s ovo.” These principles have

been known for centuries, if not millennia.

They will acquire new meanings in each new

s i tu a ti on to wh i ch they are app l i ed , a n d

because this requ i res ju d gm ent they wi ll

of ten be misapp l i ed . But the pri n c i p l e s

themselves will not soon be replaced.

70 Terry Nardin