I: Intervening for humanity
The origins of humanitarian intervention
What legitimation for humanitarian intervention: A historical reconstruction
The doctrine of humanitarian intervention can be said to have had its first fully developed statement in the thought of Francisco de Vitoria (1483-1546). His works, considered to be among the classics of jus gentium, were rediscovered after World War I and are now being once more debated in the age of multiculturalism and of military intervention for the protection of human rights, and clearly outlined in these works is a paradigm that has shaped the history of jus gentium and its subsequent reformulation as international law.
This paradigm is built stepwise in Vitoria’s De Indis insulanis relectio prior (1539), first framing the problem, then constructing a picture of relations among peoples, and finally systematically laying out the criteria on which basis humanitarian intervention can be justified. The problem Vitoria was tackling came into focus with the discovery of the New World, which in turn prompted the question of the nature of its native inhabitants.
The debate thus sparked by the “'discovery” of New World peoples has been masterfully reconstructed by Tzvetan Todorov (1984), who traces its development from the denial of their humanity (Juan Ginés de Sepulveda) to a statement asserting their superiority (Bartolomé de las Casas). Vitoria, for his part, building on a foundation of Stoic philosophy, recognized the human nature of the Indios and argued that over their lands they exercised a coequal dominium with Christian peoples. From which it followed that they could not be deprived of their goods, as if they were not their true owners.1
Not even the diversity of customs, as exemplified by the native practice of human sacrifice, could serve as grounds for authorizing an intervention against the Indios, or a “just war” against them, considering that their manifest cruelty
“The conclusion of all that has been said,” writes Vitoria, “is that the barbarians undoubtedly possessed as true dominion, both public and private, as any Christians. That is to say, they could not be robbed of their property, either as private citizens or as princes, on the grounds that they were not true masters (ueri domini)" (Vitoria  1991, question 1 [On the Dominion of the Barbarians], § 23, Conclusion, pp. 250-51).
was certainly no more brutal than the violence in which Christian peoples engaged in their own wars of religion.
Through this paradigm, Vitoria thus took on the question of the grounds for intervening in the territories inhabited by the Indios. He systematically distinguished nonlegitimate grounds (tituli non legitimi) from legitimate ones and proceeded to lay out what the latter might be for the Spanish conquest of the New World. Thus, while on the one hand the diversity of customs, no matter how savage they might be, could not justify intervention, it was on the other hand argued to be legitimate to intervene in order to protect the lives of the innocent who were subject to such violence. To establish this legitimate ground, Vitoria looked to Scripture, where the imperative is found that the innocent are to be delivered from the infliction of death.
This first paradigm addresses a question that can only improperly be called “humanitarian intervention”—an idea that, as we will see, does not fully take shape until the nineteenth century (Rougier 1910, 472). It is instead the idea of a “just war” that frames the problem at this early stage, and in Vitoria the argument is thus built by identifying certain “just causes” or legitimate grounds. It is in this way, by relying on the just causes built into this paradigm, that jus gentium sought to justify the West’s colonization of New World peoples.
The historical transformations this paradigm would go through are essentially tied to the need to adapt its forms of legitimation to a variety of changing historical contexts. Thus in the history of jus gentium, a century after Vitoria set out his theses, his original paradigm was already secularized through and through. This can be appreciated in the work of Hugo Grotius, whose concern was with the problem of the limits that might be imposed on national sovereignty within the system of states, by this time fully established.
Grotius made an argument in favour of sovereignty, to this end relying on a theory of rights under which a right, understood as a power (facultas) over goods, can be distinguished as either private or public. A private facultas is one that individuals exercise over their own interests; a public facultas, by contrast, is exercised by the sovereign to protect the common good or welfare. Implicit in this distinction, according to Grotius, is the tenet of the superior status of sovereignty, and on this basis he also argues that no right of resistance exists against any exercise of sovereignty, even in the face of cruelty by a sovereign acting in violation of the common good.
But that conclusion, on this line of reasoning, only applies to the sovereign’s own subjects. It does not make it illegitimate for a foreign sovereign to take up arms so as to put an end to persecutions which a sovereign prince carries out against his own people, thereby imperilling their lives (Grotius  2005, bk. II, chap. XXV, § VIII, 1159-62; orig. pub. 1625). Here, in De Jure Belli
Vitoria quotes the Book of Proverbs (24:11): “Deliver them that are drawn unto death, and forbear not to deliver those that are ready to be slain” (Vitoria  1991, question 3, article 5, § 15, p. 288).
The origins of humanitarian intervention 5 ac Pads, Grotius looks not to Scripture but natural law. It is equally clear, however, that so-called just causes can be instrumental and can thus be invoked to advance hegemonic aims. In fact, they can conceal the deepest injustice within a system of states fundamentally driven by the pursuit of their own power.
It appears equally clear that different forms of legitimation are closely linked to the institutional configurations that define relations among peoples and states. Thus in Vitoria the criteria of “just war” find their foundation in the still premodern reality of the respublica Christiana, in Grotius sovereignty instead finds its limits in the relations that make up the states-system, and newer criteria of legitimation would henceforth be established by reference to the institutional frameworks that would subsequently take shape.
Thus in the wake of World War I a new international order took shape with the creation of the League of Nations, which some observers saw as heralding a new system of relations among states. In the work of Georges Seelie, for example, the League of Nations was conceived as a federative system that had given birth to a suprastate social organization. In this new federative phenomenon, for Seelie, lay the foundation of possible intervention—military or humanitarian—whose legitimacy was to be found in the need to preserve the international suprastate order.
From a historical perspective, then, there clearly emerges (however, much within the limits of this sketchy and perhaps even cursory reconstruction) that the criteria of legitimation are closely bound up with the forms of institutional organization that solidify among states. In Chapter 4, we will see how this relation of legitimacy unfolds in the modern reality. But there is a basic paradigm that over the course of time has consistently been used to assert the legitimacy of humanitarian interventions, and it is to the task of blocking out this paradigm that we now turn.
-  Scelle (1934, 31) wrote that the purpose of intervention was to maintain public international order and to secure the establishment of law, and paradigmatically this was the purpose of humanitarian intervention (intervention d’humanité). 2 The essay offers a broad and deep reconstruction of the theory of humanitarian intervention in the nineteenth century.