War, humanitarian intervention, and the function of law

It is no easy task to set out the relation under which international law interfaces with sovereignty and its prerogatives. And yet—if we are to clarify the meaning of humanitarian intervention and the new definition it has received under RtoP—we will need to pin down the way international law relates to the recourse made to force on ostensibly humanitarian grounds.

In an in-depth study, Nathaniel Berman has put forward an extraordinarily original thesis, claiming that the role law plays in relation to force, and in particular to war, does not consist in limiting or preventing recourse to it: its role is rather one of “construction—the facilitation of war through the establishment of a separate legal sphere immunizing some organized violence from normal legal sanction and, inevitably, privileging certain forms of violence at the expense of others” (Berman 2004, 1; Berman’s italics). In other words, “rather than opposing violence, the legal construction of war serves to channel violence into certain forms of activity engaged in by certain kinds of people, while excluding other forms engaged in by other people (ibid., 5; Berman’s italics).

Berman further observes that “the forms of this legal construction of war are highly contingent, both in the sense of having varied historically and in the sense of having been contested within each period” (ibid., 6): “The contours of the legal construction of war have been contested, defended, transformed, and reconstructed” in the interaction “between people fighting for powers great and small, for Europeans and those they colonized, and for state armies and guerrilla forces of every political, ethnic, and geographical variety” (ibid.). This pattern has continued even in the aftermath of 9/11, which gave way to an effort to instrumentalize the distinction between war and nonwar and between prisoners of war and criminal defendants (ibid., 7). The role of law in relation to war can thus be framed as one of construction, contestation, or instrumen-talization (ibid., 8).

In this connection, Berman revisits the categories through which the relation between law and war has classically been framed, namely, the categories of jus ad helium (regulating recourse to war) and jus in hello (regulating the waging of war and the treatment of prisoners and civilians). He suggests that “jus in hello could only be fully established once the medieval jus ad helium doctrine, that of ‘just war,’ had been abandoned (ibid., 5, n. 9). And now “the more recent renaming of jus in hello as ‘international humanitarian law’ appears to reflect a persistent discomfort about the semantic conjunction of law and war. This discomfort,” he comments, “may be seen in the strikingly euphemistic [...] use of the term ‘humanitarian’ to describe a body of rules one of whose key doctrines is the ‘combatants’ privilege’—the provision of legal immunity for certain kinds of large-scale violence” (ibid., 3; Berman’s italics).

The use of force in jus in hello is legitimized by legally restructuring it in the initial phase of military intervention or in the later phases of occupation, or by

Protection and neocolonial policies 57 restructuring it in still a different way, whether this is done by the occupying powers or by resistance forces, insurgents, and so on. Berman cites an example from 1961 in India, when Krishna Menon, the country’s defence minister, “declared that even a centuries-long colonial occupation should be viewed as an ongoing ‘permanent aggression’” (ibid., 27). As Berman notes, while this “the notion of ‘permanent aggression’ captures much of the political and experiential dimensions of at least some colonial situations at least some of the time” Menon’s use if it was instrumental to the aim of legitimizing “anticolonial military action—specifically, the invasion of Goa by India after 450 years of Portuguese rule” (ibid.).

This approach moves decisively beyond the traditional conception of law as a tool for limiting the use of force, for it enables us to appreciate that the legal construction of humanitarian intervention, military intervention, or war lends itself to a strategic instrumentalization designed to legitimize, not limit, the use of force. Let us see, then, on the basis of these premises, if we can unpack the complex paradigm that provides the conceptual framework for the concept of RtoP.

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