Just War or Just Peace? Humanitarian Intervention and International Law.

• Jurisdiction: Australia
• Author: Bhuta, Nehal
• Date: 01 December 2001

by Simon Chesterman (Oxford: Oxford University Press, 2001) pages i-xxix, 1-295. Price $145.00 (hardcover). ISBN 0-19-924337-9.

I INTRODUCTION

Which are we: beasts because we make war, or angels because we so often seek to make it into something holy? (1) In his essay `Eternal Peace', (2) Kant expresses some bemusement that the word `law' (Recht) is still used in the discourse of war. He finds it surprising that the word

has not been entirely banned from the politics of war as pedantic, and that no state has been bold enough to declare itself publicly as of this opinion. For people in justifying an aggressive war still cite Hugo Grotius, Pufendorf, Vattel and others (all of them miserable consolers). (3) Kant's reflection on states' repeated recourse to the language of `law' and `right' in order to justify the pursuit of power through violence nevertheless leads him to the sanguine conclusion that

there exists in man a greater moral quality ... to try and master the evil element in him ... and to hope for this in others. Otherwise the words law and right would never occur to states which intend to fight each other, unless it were for the purpose of mocking them ... (4) The sage of Konigsberg's transcendental deduction of the foundations of an international legal order nevertheless carries with it the awareness that states frequently invoke international law -- and international lawyers -- to legitimate power political objectives. Not infrequently, it seems, international lawyers offer `miserable consolations' for inter-state violence by cloaking raison d'etat (reason of state) with portentous legal rationales. Thus, Grotius' celebrated treatise on a right of free innocent passage on the seas, Mare Liberum, (5) developed as an apologia for Dutch efforts to wrest control of trade to the East Indies from the Portuguese. (6) Similarly, his concept of states' `right to punish' conduct against the `law of nature' for the sake of `vindicating the cause of the oppressed' -- a concept within the genealogy of modern notions of obligations erga omnes, universal jurisdiction and humanitarian intervention -- coincided with Dutch imperial expansion. As Richard Tuck observes, `[t]he idea that foreign rulers can punish tyrants, cannibals, pirates, those who kill settlers, and those who are inhuman to their parents neatly legitimated a great deal of European action against native peoples around the world'. (7)

The legal regulation of the use of force continues to be an area where the line between legal reasoning and audacious legitimation is frequently blurred. There persists, it seems, a role for international lawyers in subtly vindicating raison d'etat by elaborating latter-day versions of a `right to punish'. The United States' 1989 invasion of Panama -- an unambiguous violation of the UN Charter and condemned by all other members of the Organization of American States -- is thus defended as a `lawful response to tyranny' based on a putative right to unilateral pro-democratic intervention. (8) Similarly, the maintenance of aerial exclusion (`no-fly') zones over northern and southern Iraq by the United States and the United Kingdom, and air strikes in punishment for failing to comply with a weapons-inspection regime, are claimed to be impliedly authorised by the United Nations Security Council, although no express wording is to be found in any relevant resolution. (9)

In light of this historical context, the heralding by some international lawyers of a new `right of humanitarian intervention' in the aftermath of the use of force against the former Republic of Yugoslavia by the North Atlantic Treaty Organisation (`NATO') should be approached with caution. Some writers, such as Michael Glennon, abandon any pretence of legal analysis and instead laud `America's new willingness to do what it thinks right -- international law notwithstanding.' (10) On this view, the justness of NATO's use of force is `evident' -- perhaps even axiomatic, as no argument is advanced -- and represents the `ideal of justice backed by power'. (11) Those pondering the validity of intervention `should not be daunted by fears of some lofty, imagined temple of law enshrined in the UN Charter's anti-interventionist proscriptions.' (12) The new interventionists must find ways to overcome the resistance of `the defiant, the indolent, and the miscreant', (13) who perhaps will suffer the same fate as `cannibals, pirates, those who kill settlers, and those who are inhuman to their parents'.

Dr Chesterman's new work is a useful corrective to those who would cheerily dissolve the distinction between legality and power, or between legal analysis and agitprop. While the book is subtitled Humanitarian Intervention and International Law, its scope is considerably broader than a discussion of any purported customary international law right to use unilateral force to prevent a humanitarian or human rights `catastrophe'. It treats carefully the question of whether a right to humanitarian intervention pre-existed the UN Charter, or has crystallised subsequently, but also devotes considerable space to the new legal modalities of the use of force that have emerged in the last 15 years. The latter developments, beginning after the end of the Cold War, have introduced new dimensions into the practice of the Security Council, and portend an unsettling new topography in which the Security Council's supreme authority over nondefensive uses of force is by turns either co-opted or ignored. At the core of Dr Chesterman's book is the unfashionable contention that the collective security framework of the UN Charter should be defended, precisely because it seems ultimately more likely to preserve a thin rule of law in international affairs than any `right' of unilateral intervention wielded selectively by powerful states.

II A CUSTOMARY RIGHT OF HUMANITARIAN INTERVENTION?

The first two chapters of the book investigate whether a `right to humanitarian intervention' can be found in pre-UN Charter treatises and texts of international law, or in post-Charter state practice and opinio juris. The examination eschews the breathless enthusiasm for the purported `right' of more superficial texts (14) and also avoids the assumption that a seemingly laudable moral imperative must find expression in a legal one. With a sobriety and attention to detail that characterises the work generally, Dr Chesterman reviews both canonical texts of international law and those instances of state practice and opinio juris from the pre- and post-Charter eras most commonly cited as evidencing the existence of a `right to intervene' for `humanitarian purposes'. (15)

Although the use of force as a means of settling disputes between states was not categorically prohibited until the advent of the UN Charter, precisely what constituted a `permissible' intervention before 1945 is revealed to be very uncertain. The lineage of `humanitarian intervention' is traced to antecedents such as the `right to punish' proposed by Grotius, (16) who in turn derived his rather bellicose (17) conception of `war as punishment' from the prevalent view among scholars of the humanist school that war could be justly waged against those violating `the common law of humanity.' (18) As Richard Tuck's survey of the humanist tradition reveals, its proponents were self-consciously preoccupied with the legality of imperial conquest, and invoked such notions as `the league of human society' and `natural slavery' to construct indigenes of the New World as justifiable objects of attack and enslavement. For, it was contended, those who `practised abominable lewdness even with beasts, and who ate human flesh ... are contrary to human nature, ... [and] since we may also be injured as individuals by those violators of nature, war will be made against them by individuals.' (19) When Thomas More's Utopians `go to war only for good reasons ... [such as] to liberate an oppressed people, in the name of humanity, from tyranny and servitude', (20) it is important to appreciate the particular definition of the `humanity' in whose name war was waged.

Nevertheless, as Dr Chesterman notes, Grotius' concept of a `right to punish' was not accepted by all of his contemporaries or their successors. The humanists' belligerence towards `barbarians' and other inferior peoples was challenged by other European jurists (such as Dominicans and Jesuits) who judged warfare by more restrictive criteria and questioned the legitimacy of the conquest of the New World. (21) The Lutheran Pufendorf, who lived in the group of European states at risk from militarist expansion by imperial powers, was unsurprisingly unenamoured of Grotius' liberal interpretations of jus belli, rejecting a state's right to punish except in retaliation for injuries directly inflicted upon it by other peoples:

[W]e are not to imagine that every Man ... hath a Right to correct and punish with War any Person who hath done another an Injury, barely upon Pretence that common Good requires, that such as oppress the Innocent ought not to escape Punishment, and that what toucheth one ought to affect all. For otherwise, since the Party we suppose to be unjustly invaded, is not deprived of the Liberty of using equal Force to repel his Enemy, whom he never injured; the Consequences then would be, that, instead of one War, the World must suffer the Miseries of two. Besides, it is, also, contrary to the natural Equality of Mankind, for a Man to force himself upon the World for a Judge, and Decider of Controversies. Not to say what dangerous Abuses this Liberty might be perverted to, and that any Man might make War upon any Man upon such a Pretence. (22) Wolff and Vattel, writing at a time when the emergence of recognisably modern nation-states demanded a stronger theorisation of `state sovereignty', (23) echoed Pufendorf's concern about the `dangerous Abuses' that a `right to punish' may engender. Wolff...