3.1. Fiduciary Obligations
The first reason for preferring PMSCs invokes the costs of humanitarian intervention and peacekeeping. On the one hand, there is reason to hold that intervention for human rights purposes is, in certain circumstances, a duty.19 On the other hand, some object tothe costs of undertaking humanitarian intervention for the intervener in terms of both soldiers' lives and civilians' resources. David Miller, for instance, argues that humanitarian intervention may be a duty.20 However, he also claims that, if states are to undertake humanitarian intervention, they have to impose potentially problematic requirements on their people, such as increased taxation, and, moreover, intervention often puts their soldiers at considerable risk.21 To flesh out the issue of costs, it helps to consider the fiduciary obligations that states owe to their citizens. On what Allen Buchanan calls the ‘discretionary association view of the state’, government is solely the agent of the associated individuals and its role is the furthering of these individuals' interests.22 In Buchanan's words, it ‘acts legitimately only when it occupies itself exclusively with the interests of the citizens of the state of which it is the government’.23 On this view, humanitarian intervention cannot be demanded of a state because it would require the government to pursue the interests of noncitizens over citizens, and would therefore break the fiduciary obligation implicit in the social contract.
Miller goes on to argue that, where no national interest is at stake, the anticipated costs to the intervening state must be quite low.24 Soldiers, he argues, are owed ‘equal concern and respect’ and this involves limiting the degree of risk to which they are exposed when they are required to rescue noncitizens. In his words: ‘[i]t is simply unfair to ask soldiers or others to face very substantial risks of death or injury to discharge what may well be a humanitarian obligation rather than a strict duty of justice’.25
Now, on the logic of this argument, one resolution to the ‘protection gap’ that Miller identifies between the claim-right of those suffering the humanitarian crisis and the costs to interveners would be to hire PMSCs to undertake humanitarian intervention. This would help a state to discharge its duty to intervene without running into the problems of excessive costs to soldiers. The government would not be putting its soldiers' lives at risk and therefore violating their ‘equal concern and respect’. Indeed, elsewhere Miller considers a voluntary taskforce especially for intervention, where protection is entirely in the hands of volunteers, as a potential solution to this dilemma.26
Are fiduciary obligations then a persuasive reason to favour PMSCs for humanitarian intervention? To start with, this argument fails in cases where intervention for human rights purposes is, in fact, self-interested — when humanitarian intervention would be within the remit of the social contract. Examples might include India's intervention in Bangladesh, which as well as saving lives weakened Pakistan, and Tanzania's intervention in Uganda in 1979, which aimed to save lives but also removed Idi Amin from power (who had previously attacked Tanzania). Moreover, on a wider, ideational notion of self-interest defended by constructivist international relations theorists, a state's self-interest is also determined by its identity, shared values, and principles, such as the promotion of democracy, freedom, and human rights.27 Accordingly, many interventions for human rights purposes will be in the interests of the state and therefore not subject to this criticism.
More fundamentally, this argument cannot distinguish between military and financial costs.28 Although PMSCs can be used to circumvent the military costs of intervening, citizens will still be required to take on the financial costs of intervention. That is, citizens will be required to pay for PMSCs' intervention, which may require increased taxation and decreased public spending. As such, there would be reason to oppose the use of PMSCs for humanitarian intervention on this view — citizens would have to pay for their use, which goes beyond the terms of the social contract — when it is not in the national interest.
While the above points are sufficient to cast doubt on this ostensible reason in favour of the employment of PMSCs for interventions for human rights purposes, the strong account of fiduciary obligations on which the argument is based seems itself to be erroneous. As Buchanan points out, the discretionary association view denies that government possesses any obligations to those beyond the borders of the state.29 If this were correct then almost any action, including imperialism, colonisation, and exploitation, could be justified if it would advance the interests of those within the state, regardless of the harm caused to those beyond its borders. This is clearly problematic, and gives reason to doubt the strict discretionary association view in general.
More plausibly, we can acknowledge that governments possess special obligations to promote their citizens' interests, but reject the idea that this entails that governments have no responsibilities to noncitizens. In other words, a government does not have to occupy itself exclusively with the interests of its citizens. Rather, the point is that the primary role of government is to promote its citizens' interests. This more moderate approach allows room for a government to possess certain obligations to those beyond its borders, including the duty to intervene when a humanitarian crisis is serious, even when the intervention will be risky. So, an intervener can subject its home population to some harm when helping a much greater number of individuals from severe harm beyond its borders. In such cases, the duty to intervene to help foreigners outweighs the duty to its citizens. (In less serious cases, humanitarian intervention may go beyond the scope of a government's obligations to those beyond its borders.)
In this regard it is difficult to disagree with Richard Vernon, who asserts that those beyond the zones of mutually beneficial relationships are not beyond the pale of moral regard.30 Compatriots can justify their mutually beneficial social compacts only when outsiders are also in a position to enjoy contexts in which they too can create flourishing civil societies. To justify one's right to exclusive association, which diverts care from outsiders and increases the level of benefit to those inside, it is necessary that others can do so too.31 The right of associative obligation cannot honestly be given, he argues, ‘in relation to those cases in which outsiders suffer the violent effects of political collapse or the violent oppression of abusive states, where the capacity to resist state terror or to organize for collective self-preservation has been lost’.32 Accordingly, Vernon argues that citizens of successful societies can justify their enjoyment of benefits only when they are willing to aid the victims of failed or abusive states by, for instance, undertaking humanitarian intervention. To be sure, as noted above, there may still be some special obligations that arise from the social compact. That is to say, when outsiders are also in a position to create flourishing civil societies, there can exist special obligations that derive from the contractual process. In such cases, the fundamental justifiability of the social compact is not threatened. But when outsiders are not in such a position, such partiality can be permissible only when a reasonable effort is made by those within the social compact to assist outsiders to create flourishing civil societies, such as by undertaking intervention for human rights purposes when required to do so.
3.2. Fairness and Spreading the Costs
Another reason that could be proposed, on principled grounds, in favour of using PMSCs for interventions for human rights purposes, is the claim that it is potentially fairer to those who have to pay the costs of intervention. This is because, unlike for regular forces, the costs of an intervention by a PMSC can be more easily spread amongst states.
This links into problem of the fairness of the distribution of the duty to intervene. This problem arises when the general duty to intervene, which falls on the international community at large, is adjudged to fall to a specific intervener or coalition of interveners. It seems unfair for one country or organisation to carry the full burden of a duty that strictly speaking falls on all. Why should country x, simply because it happens to be the country which possesses the features that make it the most legitimate intervener, bear all the costs of fulfilling a duty which falls on the international community at large?
This issue might be articulated as a form of the free rider problem: all those countries which fall below the level of most legitimate intervener benefit from the intervention (in the sense that their duty is fulfilled on their behalf) whilst carrying none of the costs (both human and economic) of undertaking the intervention. There is a danger that countries which have the potential (in terms of economic and human resources) to become the legitimate interveners might deliberately leave that potential unfulfilled (by, for example, not purchasing strategic lift aircraft, or not equipping their military forces for expeditionary operations) in order to ensure that the burden of carrying the international community's duty to intervene falls on another nation's shoulders.
Consider, by way of analogy, the following scenario. A group of friends are frolicking in the waves on an otherwise deserted beach, when one of their number is washed out to sea by a particularly large wave and is in danger of drowning. One of the group happens to be an excellent swimmer, so is rightfully deemed by all to be the legitimate rescuer. Once the decision is made and the good swimmer dispatched on his mission, the remainder of the group go back to their tanning and frolicking. Does such a scenario seem fair and just?
It seems that it does not. The duty to rescue the friend in need is one which falls to every member of the group. So whilst it is legitimate for the best swimmer to take the lead in this effort, we should expect the other members of the party to do what they can, within their capabilities, to contribute to the rescue effort. For example, some of the other good swimmers might swim out part of the way, in order to help pull their endangered comrade in to shore once he is brought within their reach. Others might prepare a vehicle to transport their friend to the nearest hospital, or else telephone the emergency services to send an ambulance. Leaving one member of the party to carry the full burden of the rescue seems manifestly unfair in this case. So why should it be any different in the case of intervention?33
Employing a contracted combatant force for the intervention, however, may seem to offer a means to avoid this problem. Every member of the UN could be required to contribute financially in support of such an intervention force. Because the contracted combatant force is not the intervener per se, but only the tool of the intervener to which it is contracted, it becomes possible to consider that such an arrangement will be a case of the international community conducting a humanitarian intervention. This would be desirable because it would ensure that the burden of the duty to react is fairly spread amongst the members of the international community.
However, this consideration would provide a clear reason to prefer PMSCs only if it were not possible for there to be a statist arrangement that distributes fairly the burdens of intervention amongst potential contributors. But this is quite possible and, to a certain extent, is already how the UN peace operations system currently works (albeit imperfectly). Member states provide financial resources to the UN peacekeeping budget (perhaps very) roughly according to ability to pay, which is then used to pay for particular operations. Certain states tend to provide more peacekeepers than others do, but this is not necessarily unfair on them, given that they receive remuneration for each peacekeeper and the contribution of peacekeepers is voluntary.
Accordingly, fairness to those who have to pay for humanitarian intervention or deploy troops on the ground does not give us significant reason to prefer PMSCs to regular soldiers for interventions for human rights purposes. Concerns over fairness do highlight that multilateral solutions may be fairer, for they can more easily spread the costs of intervention. But such solutions may be public as well as private.34
3.3. The Soldier-State Contract
The Oath taken by officers in the US armed forces reads as follows:
I (name) do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.35
This oath, and others like it taken by military personnel around the world, is a verbal affirmation of the contract between the state and the soldiers, sailors, airmen, and marines that serve in the state's armed forces. The person taking the oath consents to an obligation to accept great risks and engage in morally and personally difficult actions on the understanding that the circumstances under which they will act will be when the nation's defence or vital interests require action. But a problem seems to arise when the oath-taker is asked to accept the same kinds of risks and engage in the same kinds of activities for protecting the human rights of those beyond the borders of the state. Martin Cook, for one, views this as a significant problem, commenting that ‘the military person may say with moral seriousness, “This isn't what I signed up for” ’.36 By this reasoning, regular volunteer military personnel cannot be legitimately required to undertake humanitarian intervention. Even where there is an unproblematic duty of humanitarian intervention, it seems that the state cannot carry out this duty because doing so would conflict with the duties that it owes to its own military personnel. The point here is not that regular soldiers should have some degree of choice over the wars that they fight. The point, instead, is that the contract between the soldier and the state binds the soldier only to a certain set of circumstances in which they will be asked to fight.
To reconcile the duty to intervene with these concerns, PMSCs could be hired. Private contractors sign on for specific missions, and so there can be no question of their consenting to the specifics of the mission concerned, whether it be a humanitarian intervention or otherwise. It seems, therefore, that the employment of contracted combatants for humanitarian interventions provides a means whereby states can fulfil their moral obligations to intervene, without thereby violating their moral obligations to their military personnel.37
It may seem that this argument is unconvincing because the soldier-state contract is not limited to the defence of a state's vital interests. Whilst perhaps not stated explicitly in oaths of office, it is not unreasonable to think that a soldier can expect, when signing up, that they will take part in interventions for human rights purposes, given the frequency of such operations. Indeed, the recruitment campaigns of some armed forces (such as the British Navy) have used the possibility of conducting humanitarian intervention in their public advertisements. Similarly, Cook, in fact, points out that American political discourse speaks ‘in universalizing terms of fighting wars to end all wars, advancing universal human rights and democratic political order, and opposing tyranny and despotism’.38 Such rhetoric is likely to have an impact on individuals signing up: they can expect that their state will engage in a variety of military operations, including, sometimes, humanitarian intervention, for the benefit of those beyond the borders of their state. If this is right, we can view modern state combatants as, in effect, consenting to a general requirement that they serve in humanitarian interventions. The Enlistment/Reenlistment Document of the US Armed Forces, for instance, does not distinguish between the types of wars that enlisters may be required to fight.39
Yet, even if this is so, it seems that employing contracted combatants for humanitarian interventions must (in this regard at least) be considered morally preferable. For though the volunteer solider, sailor, airman, or marine may be understood as consenting in general to many types of war, including humanitarian interventions, the contracted combatant consents to risking his or her life and limb in support of a specific war and a specific humanitarian intervention. The consent of the contracted combatant must, therefore, be considered to carry more moral weight.
To help to see this, consider the following analogy. In the testing of new drugs or medical procedures for biomedical research, the volunteer's consent is crucial. This consent is not, however, given generally. The volunteer does not agree to a generic consent form that details all the possible effects of a wide array of potential drugs and procedures. Rather, they consent only to the testing of a specific drug or procedure, with the likely effects of that drug or procedure detailed as far as possible. It seems that such specific consent carries far more moral weight than the broad consent to volunteer for ‘medical research’. Similarly, the private contractor's specific consent seems to carry more moral weight than the regular soldier's general consent to participating in humanitarian interventions.
Why exactly should specific consent carry greater moral weight than general consent? In short, the reason is that the former, unlike the latter, is unambiguous. More specifically, Onora O'Neill argues that consent is an attitude to a proposition that describes the action to be performed, and propositions may be more or less detailed.40 So, with specific consent, there is greater detail and so no doubt as to whether the individual has agreed to the action. By contrast, general consent, which is less detailed, provides only a presumption. There may be some — even if only a little — doubt about what exactly the individual has generally agreed to.
Thus, in the case of the general consent of the regular volunteer soldier, it is contestable whether he or she agrees to undertake humanitarian intervention when signing up. Although we think that many soldiers do, in fact, agree to such cases, this is an empirical matter: it will depend on the specific reasons for each individual soldier and the details of the drafting contract that they sign, which will vary from state to state. If it is the case that they do not, in fact, agree to undertake particular wars or cases of humanitarian intervention and peacekeeping, then their individual autonomy will be violated by forcing them to fight in such cases. By contrast, for private contractors (when they are not misled), it is unambiguous whether they consent: they clearly agree to fight in the case of a particular peace operation and therefore their individual autonomy is not under threat by their deployment in such operations.
It should be noted here that this argument is not necessarily limited to interventions for human rights purposes. It may also follow that there is a reason to prefer private contractors for other uses of force, including national defence, for they clearly consent to such operations. It may be similarly questionable whether regular soldiers do, in fact, agree to particular operations of national defence (e.g. the preventative use of force). It should also be noted that there might be unanimous support amongst the soldiers for the intervention or war. Thus, although their consent is not sought, the war would not undermine their individual autonomy since they would want to participate anyway. As such, the moral import of the strength of our point about specific and general consent depends on the level of willingness amongst the soldiers fighting the wars and generally assumes that at least one regular soldier would not desire to fight.41 All this is not to say that regular volunteer soldiers are wronged by humanitarian intervention and peacekeeping (or wars more generally). Their general consent makes it permissible for them to be used for interventions for human rights purposes. In fact, as we will argue in the next section, even if they do not clearly consent to such operations, it may still be permissible to use them in this role. Our point, rather, is only that the specific consent of contracted combatants presents some reason to favour their use.
3.4. Forcing Soldiers to Save Lives
A fourth, but related, potential reason for holding that private contractors should be preferred concerns whether it is permissible to force individuals to save the lives of others. Whereas the previous argument focussed on whether the use of private contractors for humanitarian intervention and peacekeeping should be preferred because volunteer soldiers do not, in fact, consent to such operations, this argument considers, more fundamentally, whether those who do not consent to such an operation can be forced to save strangers. To put this another way, we have argued that the specific consent of private contractors provides some reason to prefer them to regular soldiers, whose general consent is contestable. But it may be argued, more strongly, that it is impermissible to force those who do not clearly consent to undertake intervention for human rights purposes to fight in such operations. In particular, it may be argued that conscription and forcing volunteer soldiers to fight in a war that they do not consent to should be morally prohibited. If this is correct, then it seems that there is a much stronger — even indefeasible — reason to favour private contractors.
Why might one hold this position? It might be claimed that individuals cannot be forced to save the lives of others without their consent. Analogously, it might be argued that without his ex ante agreement a private citizen cannot be required to enter into a burning building to save another. To force the individual to enter the building would be to violate their individual autonomy and so to seriously wrong them. Therefore, it may seem that private contractors should always be preferred to, first, conscripts when the intervention is risky. This is because private contractors volunteer to perform the role, whereas conscripts do not. Second, it may also seem that private contractors should be overwhelmingly preferred to regular volunteer soldiers, given the distinction between general and specific consent highlighted above. Regular volunteer soldiers only generally consent to perform a variety of options, whereas private contractors would consent to a specific humanitarian intervention. The latter would agree more clearly to the specific risks of intervention.
However, this argument seems to be too strong. The prohibition on forcing individuals to save others does not seem to be absolute. On the contrary, there are three reasons for holding that forcing individuals to save the lives of others can sometimes be permissible. First, the amount of risk that the individuals will be subject to when saving others may vary. There may be only a small chance that they will be seriously harmed or killed. Second, the degree of harm that they will be at risk of may be only of a relatively small magnitude, such as only a minor injury. Combining these two points, an individual would face, for instance, only a (i) small risk of (ii) minor harm if they were to enter into a burning building to save the life of another. Despite this risk, it seems that they could be coerced into doing so. Third, even in cases of a more likely serious harm, this harm may be outweighed by the prevention of a much greater harm, such as by the saving of a much greater number of individuals from likely death. In the example above, a private citizen cannot be justly forced to enter into a burning building, at great and significant risk, to save the life of only one other individual, but could be justly forced to do so to save the lives of five hundred small children.
To be sure, we are not defending here a simple consequentialist calculation of how many lives are to be saved against how many lives are to be put at risk. The justifiability of forcing individuals to face a risk will be dependent on the likelihood and magnitude of the risk, the difference between doing and allowing, and several other moral considerations, such as the individual's particular circumstances. As such, any assessment will be highly complex. Nevertheless, at some point it is permissible to force individuals to face risk to save the lives of others; their clear consent is not always necessary for this. This point may be reached only when the numbers of lives to be saved is significantly higher than the number of lives to be risked. Nor are we arguing that individuals are under a duty to sacrifice themselves. Rather, our claim instead concerns decision makers, who will sometimes be morally justified in forcing individuals to face the risk of major harm in order to avert an even greater harm.
Likewise, conscription, even when it may involve likely death, may be permissible for national defence when the number of those at risk is high, such as when the state is threatened with invasion by a brutal aggressor.42 Indeed, intuitively, conscription seems to be a relatively clear case of when some smaller number of individuals can be forced to save the lives of a higher number of innocents who are at risk of serious rights violations. And, if it is the case that conscription for national defence can be permissible because of the number of rights violations involved, it seems to follow that it could also be permissible for the majority of humanitarian interventions and peacekeeping operations. Such operations are typically in response to the ongoing or impending mass violation of basic human rights of a large number of individuals. Indeed, there is a strong case for arguing that such operations cannot be permissible except in such circumstances.43
Thus far, we have made the case for the permissibility of conscription and a regular volunteer army for intervention for human rights purposes compared to not acting. But it might be argued here that we should strongly prefer PMSCs comparatively. Suppose that Alan volunteers to rescue several people in a burning building at great risk to himself. Bob could also save the people — he would be equally capable as Alan — but does not volunteer. It might appear that Alan's consent provides a very strong reason to prefer it that he be selected to save the people rather than Bob. Likewise, it might seem that private contractors' clear consent to the risks of intervention provides a sizeable reason to prefer them to regular soldiers who give only their general consent or conscripts who may not consent at all.
We agree that this comparative consideration does provide some reason to prefer PMSCs. Indeed, this was largely captured by the difference between general and specific consent outlined in the previous section. In short, PMSCs may do better in terms of the moral import of individual autonomy of those conducting the intervention. But even in the case of conscription, this comparative consideration does not provide an indefeasible reason. If our argument above that conscription may sometimes be permissible is correct, then the moral import of the individual autonomy of those conducting the intervention can be outweighed by other considerations, such as consequentialist ones. Such considerations may be more morally important than the individual autonomy of those conducting the intervention when it comes to deciding who it is that should intervene.44 For instance, if it is the case that Bob would be much more effective than Alan at saving the people in the burning building, Bob may permissibly be chosen over Alan to save the people. Alan's clear consent is outweighed by the import of saving several lives effectively. In addition, in the case of regular volunteer soldiers, it should be recalled that they do give their general consent. As such, they are not like Bob, but rather like fire-fighters who agree to tackle a range of potential hazards. If it would be the case that fire-fighters would be, for instance, more effective at saving lives than Alan, it seems that they should be selected. So, the moral difference between general and specific consent, which stems from uncertainty, can be more easily outweighed by other moral concerns than the difference between consent and the lack of it.
Another apparent challenge to our view comes from Cécile Fabre, who argues that because individuals do not possess duties to subject themselves to high levels of risk,
. . . states are not under a duty to wage wars of humanitarian intervention unless they can raise an army of volunteers for that particular task. In fact, and more strongly, governments are not entitled, vis-à-vis their own citizens, to take an army of conscripts to such a war.45
Her focus here is on humanitarian interventions that would be risky. But she also contends that even in cases where humanitarian intervention would be almost risk free, conscription cannot be justified because to be able to undertake humanitarian intervention, individuals need to be trained to be professional soldiers, given that peace operations require specific skills on the part of soldiers.46 But, she argues, individuals cannot be required to be trained in such a way for this would be unduly costly to them (it would undermine their freedom of occupational choice and so negatively affect their ability to lead flourishing lives). Generally, she argues, ‘individuals are not under a moral duty to acquire specific skills for the sake of the needy, and conscription into wars of humanitarian intervention is therefore impermissible’.47
Fabre's main argument in effect makes three separate claims: (i) individuals are not under a duty to subject themselves to risk; (ii) states are not under a duty to subject their soldiers or citizens to risk; and (iii) states cannot permissibly subject their soldiers or citizens to risk.48 The last two points are highly questionable. That individuals do not possess duties to sacrifice themselves in humanitarian missions does not mean that states and, more generally, third parties, cannot permissibly subject their soldiers to risk or that they are not under a duty to do so. Suppose that, in the burning building example above, Chris is a local mayor and, as such, is morally required to do the best for the interest of all under his jurisdiction. It seems that Chris has a role-based duty to select Bob, who would be much more effective at tackling the fire but does not consent to the risk, than Alan, who clearly consents. Similarly, state leaders may have duties to both their own citizens (in cases of national defence) and to those beyond their borders (in cases of intervention for human rights purposes) that require of the leaders that they order one (smaller) group of individuals to subject themselves to great risk, even without their consent, in order to save another, larger group. To help to see this further, suppose that State A has a conscript army, but could intervene very effectively in State B, thereby preventing genocide in State B. That it has a conscript army seems to be too weak a reason to deny that it has the duty to intervene. In short, the import of the individual autonomy of those fighting the war might be outweighed by other moral considerations. Suppose further that State C has a volunteer army, but it would be far less effective at tackling the genocide and so hundreds of thousands more individuals would die. If we were to ask who it is that should carry out the intervention, it would seem to give the individual autonomy of the soldiers too much weight to say that it should be State C. Accordingly, interveners may possess the duty to intervene, despite their conscript army, if they would be the most desirable intervener all things considered (and their intervention would be morally permissible). For instance, in addition to the case for their self-defence, the Allies had a humanitarian duty to fight World War II, despite the riskiness of the war and their resort to conscription, since they were best placed to fight the war. Hence, contra Fabre, the violation of conscripts' individual autonomy is not sufficient to deny that there exists a right or duty to intervene.49
In summary, then, it does not seem that there should be an absolute prohibition on conscription and, more generally, forcing individuals to save the lives of others (such as when the consent of the soldiers is unclear).50 Nothing we say here is meant to deny that conscription is generally undesirable for practical and principled reasons (notably, that it undermines individual autonomy). Our point instead is that conscription may still sometimes be permissible and so does not provide an indefeasible reason to prefer PMSCs for interventions for human rights purposes. 51 Nevertheless, as we have argued, there is some reason to favour their use.
Thus, we have considered four potential principled arguments for preferring the use of PMSCs for interventions for human rights purposes. We have rejected three of these, but have noted that the specific consent of private contractors to humanitarian intervention and peacekeeping presents some reason (although not an overriding one) to prefer their use.