Compensating beneficiaries

Philosophical Studies https://doi.org/10.1007/s11098-024-02150-6 Compensating beneficiaries Linda Eggert1 Accepted: 8 April 2024 © The Author(s) 2024 Abstract This paper illuminates a typically obscured ground for rectificatory obligations: harms justified as ‘lesser evils.’ Lesser-evil harms are not the result of overall morally prohibited acts but of acts permissibly carried out to prevent significantly greater harm. The paper argues that harms caused as unintended side effects of acting on lesser-evil justifications, notably in military rescue operations, may give rise to claims to compensation, even if (1) the military acts that caused the harms in question were justified on lesser-evil grounds and (2) the victims in question are no worse off as a result; they may even owe their survival to the act of rescue. The paper defends three claims. First, being better off as a result of a harmful rescue than one would otherwise have been does not preclude claims to be compensated for harms suffered as a side effect. Second, identifying the relevant counterfactual for purposes of compensatory justice is sometimes a prescriptive, rather than a descriptive, matter. Rather than relying on empirical speculations about what would have happened had a harm not occurred, we must, in certain cases, consider what agents ought to have done. Finally, duties of compensation need not fall on those who caused the to-be-compensated harms. That infringing rights is permissible in certain cases does not imply that no compensation is owed, but merely that it is not necessarily rightsinfringers on whom duties of compensation fall. Keywords Lesser-evil justifications · Compensation · Defensive harm · Counterfactuals · Rescue * Linda Eggert 1 Balliol College, University of Oxford, Oxford OX1 3BJ, UK 13 Vol.:(0123456789) L. Eggert 1 Introduction Even harms justified as ‘lesser evils’ can be significant, most notably in war. Besides physical harm, they may include severe psychological trauma as well as the widespread destruction of homes, businesses, and civilian infrastructure.1 While much has been written about rectificatory duties resulting from wrongdoing, rectificatory duties that arise from harms permissibly inflicted on morally innocent people who are made overall better off have received only scant attention.2 This paper illuminates this typically obscured ground for rectificatory obligations: harms justified as ‘lesser evils.’ Such harms pose at least two challenges to theories of compensation. First, the harms in question are, by stipulation, the result of acts permissibly carried out to prevent significantly greater harm. They are not the result of overall morally prohibited acts but, effectively by definition, all-things-considered justified. Second, not acting on a lesser-evil justification would effectively amount to not preventing a ‘greater evil.’ For example, in the absence of a military intervention, some victims of ‘collateral’ harms might have become victims of atrocity crimes. Being rescued may have overall benefited them. The purpose of this paper is to explain why compensation may nonetheless be owed under these circumstances. In particular, I argue that harms caused as unintended side effects of acting on lesser-evil justifications, notably in military rescue operations, may give rise to claims to compensation, even if (1) the military acts that caused the harms in question were justified on lesser-evil grounds and (2) the victims in question are no worse off as a result; they may even owe their survival to the intervention. My argument is threefold. First, the assumption that certain harmful acts were justified on lesser-evil grounds does not imply that no compensation is owed. Rather, in the context of military intervention, it entails that it is not necessarily interveners themselves on whom compensatory burdens fall. Second, the fact that victims may be better off as a result of a harmful rescue than they would have been in its absence does not preclude the possibility of claims to be compensated for harms suffered as a side effect.3 Finally, in cases in which innocent people are harmed on lesser-evil grounds, ordinary counterfactual reasoning is inadequate; it only tells us that a ‘greater evil’ would have occurred. While ordinary counterfactualism relies on empirical speculation about what would have happened had a harmful act not been performed, deontic counterfactualism is concerned with what agents ought to have done. The latter—more effectively than the former—helps illuminate who 1 For example, Bruce Cronin, Bugsplat: The Politics of Collateral Damage in Western Armed Conflicts (OUP, 2018); Paul H. Wise, ‘The Epidemiologic Challenge to the Conduct of Just War: Confronting Indirect Civilian Casualties of War,’ Daedalus 146 (2017): 139–154. 2 For a recent defence of an international ‘war torts’ regime, according to which compensatory obligations may arise not just from unlawful but also from lawful acts that cause civilian harm, see Rebecca Crootof, ‘War Torts,’ New York University Law Review 97 (2022): 1063–1142. 3 To be clear, not all victims of lesser-evil harms are beneficiaries. Lesser-evil harms are permissible by virtue of being the lesser evil, all things considered, not because they are the lesser evil for each person affected. Thanks to an anonymous reviewer for prompting this clarification. 13 Compensating beneficiaries owes what to whom in cases in which innocent people are permissibly harmed as a ‘lesser evil.’ The issue this paper tackles has a claim on anyone’s attention who believes in lesser-evil justifications. This includes, but is by no means limited to, scholars working on the ethics of war and justifications for defensive harming. Although the main example here is military rescue operations, the claim that even all-things-considered justified and beneficial acts may generate claims to compensation may also extend to other contexts in which lesser-evil justifications for harming may call into question duties of compensation. One reason for focusing on humanitarian intervention is that such wars, in contrast with wars of self-defence, are sometimes thought to permit the shifting of harms away from intervening combatants and towards the intended and expected beneficiaries of such wars.4 Proponents of this view may be especially sceptical of the claim that harms justifiably inflicted on lesser-evil grounds in these cases generate compensatory obligations. More broadly, the issues this paper raises are not limited to the particular domain of military rescue operations, but help to advance the broader debate on compensation for permissible rights infringements. Finally, deontic counterfactualism may be of interest to arguments that employ counterfactuals more generally.5 A few clarifications before we proceed. My primary concern is with the grounds of rectificatory duties of compensation—more precisely, one moral mechanism by which (...truncated)