The theory of humanitarian intervention: Barbarous
In a critical essay of the early twentieth century, the French jurist Antoine Rougicr (1910, 473) observed that in the sources of international European law in the latter half of the nineteenth century, explicit reference was made to the “laws of humanity” (lois de I’humanite), which were set in contrast to the logic of “savage” and “partially civilized” peoples.
Thus, James Lorimer, a Scottish internationalist of the second half of the nineteenth century, proceeded on the basis of natural law to divide humanityinto three concentric spheres—civilized (Europe and the states in the American continent that had gained their independence from the Europeans), barbarous (Turkey and the Asian states that had not become European dependencies), and savage (“the residue of mankind”)—to which three kinds of recognition would attach: “plenary political recognition,” “partial political recognition,” and “natural or mere human recognition,” respectively (Lorimer 1883, vol. I, bk. II, chap. II, p. 101-2). This, he took to be the foundation for the unequal treaties that were in effect between different states.
In states regarded as falling within the sphere of “barbarous humanity,” power could be wielded only by recourse to the force of arms. It was on the basis of this “argument from barbarousness” that European governments sought to legitimize their foreign policy positions. This was the argument that France, for example, used in the late nineteenth century to speak against an African sovereign’s attempt to count human sacrifice as an institution sanctioned by the state, as well as against the torture to which a Moroccan sultan treated its political adversaries. These customs “appeared intolerable to the conscience of European peoples, who had been formed in the cult of morality and law” (Rougier 1910, 469; my translation). This is an assessment that Rougier offered without any sense of self-criticism. Which looks like an even greater moral failing if we consider that these comments were being made at a time when Western colonialism was at its zenith. Rougier went on to identify “not only a right but also a duty” to prevent such forms of barbarism, in that European peoples had committed to the “noble mission of bringing a germ of civilization to barbarous lands” (ibid.). In these words we have the constitutive elements of humanitarian intervention.
A state that acted contrary to the laws of humanity would be placed under international scrutiny, and this would in turn trigger a right of intervention on the part of any number of foreign states. At the same time, this paradigm supported a new conception of the international society as a hierarchy of powers entrusted with enforcing the principles of justice.
In the name of the international society, then, this doctrine recognized the right of one or more states to intervene in response to the sovereign acts of a foreign state that might violate the human rights of its own people. On this basis, an intervening state could request the annulment of sovereign acts subject to criticism or could work to prevent such acts from happening again in the future, or again it could take urgent precautionary measures designed to forestall any action the foreign government might take, all the while momentarily replacing the latter’s sovereignty with its own (ibid., 472).
The humanitarian intervention that was beginning to come into form in the latter half of the nineteenth century looked rather different from the scenarios envisaged in the theories through which authors like Vitoria and Grotius sought to legitimize recourse to armed force by one state acting against the tyranny of another. Indeed, whereas these classic theorists oí jus gentium rested their doctrines on a moral foundation, the new paradigm was essentially juridical in its makeup.
In the background of the idea of humanitarian intervention was mainly the so-called question of the East, for it was in response to the actions taken by the
Ottoman government that international diplomacy was set in motion with the first uses of the doctrines based on this juridical paradigm. Indeed, among the grounds of legitimate humanitarian intervention was the notion of “reason of humanity” (raison d’humanité), which in the context of the 1860 Civil War in Syria (or Mount Lebanon Civil War) was invoked to justify the French expedition to help pacify that region (at the time an Ottoman province).
The French intervention continued by diplomatic action, and its effect was to enable control over the internal sovereignty of the Ottoman Empire, forcing the Sublime Porte to reform its administrative organization. This intervention, creating a sort of special public law governing relations between Europe and the Ottoman authorities, became the object of an analysis that underscored the new kind of limitation of sovereignty which it put into place.
While states were recognized as having a legitimate interest in intervening abroad to guarantee their own self-preservation—protecting their own citizens by acting to contain the threat posed by a foreign power—or to protect their own financial interests, or again to enforce treaty provisions, humanitarian intervention was, by contrast, cast as disinterested: it was indeed said to take the (presumably universal and objective) “laws of humanity” as its foundation.
This right to intervene forms the subject of a revealing essay that appeared in 1876 in the Revue de Droit International et de Législation Comparée, giving a good sense of all the misconceptions and ambiguities which at the time accompanied the study of international law. The author of the essay, the jurist Rolin-Jaequemyns, was the journal’s editor-in-chief, and in it he published a letter that had been sent to him by Prof. Arntz of Brussels, taking a position in favour of the principle of nonintervention but pointing out two exceptions to it.
The grounds identified as exceptions to nonintervention could easily lend themselves to instrumental uses. The first such exception, according to Arntz, emerged when a state violated or threatened to violate the rights of one or more other states, making it impossible for these states to coexist on regular terms, and giving the aggrieved states a right to intervene in their own self-defence. But the idea that a threat or even a perceived threat was enough to justify intervention clearly brings to light the way in which one or more states could leverage their own power to limit the power of another state.
Even more problematic is Arntz’s second exception, under which it would have been legitimate to intervene in the sovereign affairs of a state that should violate the rights of humanity with such a degree of injustice and cruelty as to offend Western customs and civilization (in Rolin-Jaequemyns 1876b, 675).
The scenario envisaged by Arntz was that of a conflict between sovereign rights and the rights of humanity or of human society. But concepts so vague
Letter by E. R. N. Arntz, reproduced in Rolin-Jaequemyns 1876b. On the debate between Arntz and Rolin-Jaequemyns, see Heraclides 2014, 33 and 41ft'. The essay otters a complete and systematic analysis of the debate on humanitarian intervention that international lawyers were engaged in from the first half of the nineteenth century to the early twentieth century'.
as that of humanity or fictive entities like that of human society could easily be invoked by any state looking to advance its own power interests, or they could be let go of if they did not serve such interests.
To appreciate how problematic and still inadequate this conception was, consider that Arntz developed it on the basis of a faulty analogy between individual liberty, subject to the limits of law and custom, and “the states’ individual liberty,” subject to the limits imposed by the rights of human society.
Finally, Arntz’s paradigm revealed itself to be Eurocentric in its view that the right of intervention could not be exercised individually by a single state but rather belonged jointly to the greatest number of civil states, for it was best understood as a right of collective intervention carried out in the name of humanity. Arntz’s conception appears even more loaded if we consider that, by his own recounting, it had been developed with an eye to the situation in the Ottoman Empire.
In reply to Arntz’s letter, Rolin-Jaequemyns stated that he certainly did agree on the soundness of the first ground on which Arntz based the right of intervention, for on this basis intervention could be framed as a case of legitimate defence (ibid., 677). But the fundamental problem with the right of intervention had to do with second ground adduced by Arntz, arguing that this right could legitimately be exercised to redress the injustices or serious wrongs a state might inflict on its own people or on humanity.
In constructing a counterargument, Rolin-Jaequemyns studiously reconstructs the classics of jus gentium so as to identify in them the criteria by which humanitarian intervention might be legitimized. He concludes that the foundation for this kind of intervention is to be found especially in the De Jure Belli ac Pads (1625), where Grotius argues that violations of justice could legitimately be met with intervention on the basis of a jus humanae societatis (or “right of human society”) deriving from natural law.
Grotius’s theses came under the utilitarian criticism of Emer de Vattel, who argued that a sovereign can claim the right to punish offences against natural law only on the condition that these offences violate the sovereign’s own rights or threaten the sovereign’s own security. So here, instead of advancing a normative conception predicated on the need to redress violations of morality on the basis of principles of justice, Vattel is giving us a realistic conception predicated exclusively on the need to protect the state’s security.
Rolin-Jaequemyns looks at these two conceptions in comparison and finds that Vattel’s is too limiting, precisely because it reduces the right to punish to the need to protect a state’s right to its own security. Grotius, by contrast, was prescient because, as Rolin-Jaequemyns reads him, he foresaw the direction that modern legal science would take. Specifically, Grotius’s modernity could be appreciated in his having identified a right of human society, even if he did not go far enough in developing this idea, in that he understood this as an individual right and not yet as a right that states should exercise collectively.
But in reality, even if Vattel did take issue with Grotius by making a principled statement against the morally laden conception, the practical application of the two conceptions made the distinction between them less significant in practice than it might in theory. In fact, as Vattel argued, “if there were a people who made open profession of trampling justice under foot—who despised and violated the rights of others whenever they found an opportunity—the interest of human society would authorise all the other nations to form a confederacy in order to humble and chastise the delinquents” (Vattel  2008, bk. II, chap. 5, § 70, p. 297). So even Vattel envisaged situations in which nations would be legitimated in banding together in the name of “human society” (/« société humaine) (Vattel  1916, vol. I, liv. II, chap. V, § 70, p. 308). This may look a lot like the scenario envisioned by Grotius, in that both thinkers invoke the protection of human society as the basis on which states may intervene in the affairs of other states. But there is an important difference, in that this human society, on Vattel’s conception, is understood realistically as a coalition of interests and not yet as an ideal legal community or polity: on the one hand, with Vattel, we are looking at a reality of contending parties who might find some common ground despite their opposing interests; on the other hand, with Grotius, we are aspiring to construct an international community based on principles of law serving as clearly stated criteria in light of which to (a) determine whether a violation of rights has been committed and, if so, to (b) justify intervening in order to redress the violation.
-  “But if the Injustice be visible, as if a Busiris, a Pbalctris, or a Thracian Diomedes exercise such Tyrannies over Subjects, as no good Man living can approve of, the Right of human Society shall not be therefore excluded” (Grotius  2005, bk. II, chap. XXV, § VIII.2, p. 1161). The Latin original: “Si quis Busiris, Phalaris, Trax Diomedes ea in sub-ditos exerceat, quae aequo nulli probentur, ideo praeclusum erit ius humanae societatis?” (Grotius  1913, lib. II, cap. XXV, § VIII, p. 414; see also lib. II, cap. 20, § 40). 2 “What led him [Grotius] into this error, was his attributing to every independent man, and of course to every sovereign, an odd kind of right to punish faults which involve an enormous violation of the laws of nature, though they do not affect either his rights or his safety” (Vattel  2008, bk. 11, chap. I, § 7, p. 265). The French original: “Il [Grotius] est tombé dans cette erreur, parce qui’l attribue à tout homme indépendant, et par là même à tout souverain, je ne sais quel droit de punir les fautes qui renferment une violation énorme du droit de la nature, même celles qui n’intéressent ni ses droits ni sa sûreté” (Vattel  1916, liv. II, chap. I, § 7, p. 263).