Anti-slave trade policies and the ‘Cause of Humanity’ or the shaping of a new humanitarian intervention theory in international law
This chapter will first show that the emergence of the ‘humanitarian intervention theory’ in the second half of the nineteenth century was related to the historical movement initiated by abolitionism as argued by Fabian Klose.2 Consequently, this chapter argues that Indian Ocean anti-slavery policies should be analysed in taking account of this broader historical perspective.5 Following again Fabian Klose as well as Lynn Hunt’s arguments, this chapter will also highlight the importance of abolitionism on the development of contemporary international law and ‘human rights’ in examining the concepts of humanity and ‘crime against humanity’ throughout the nineteenth century.4 We will show that humanitarians - among which abolitionists stood prominently - contributed to the emergence of the concept of humanity in international law as well as the popularity of ‘crime against humanity’ in the press. Anti-slavery campaigners did so to support interventions ‘in the name humanity’ before international law as well as public opinion. Without slipping into anachronism, it will be shown that ‘crime against humanity’ increasingly became popular in the press and the political arena between 1850 and 1944 in a wide different range of contexts, before finally entering international law at the Nuremberg trials. We will at last point out that a kind of ‘community of spirit’ existed between humanitarians of the late nineteenth century and twentieth century lawyers, such as Hersch Lauterpacht, who defended human rights in supporting the development of international law and humanitarian intervention. By community of spirit, we refer to the fact that some writers or artists, when facing certain dilemmas such as the defence of humanity, tend to share common inspirations and ideas thus forming a ‘community of thinking’ or a ‘galaxy of thinkers’, something quite similar to the humanists’ Republic of Letters but only across different period of times.5 All in all, this chapter will continually demonstrate that Zanzibar contributed to placing humanitarian questions at the forefront of international relations in the second half of the nineteenth century.
Abolitionism, anti-slavery, and ‘interventions for humanity’: Zanzibar and beyond
‘“Humanity”. Normally one uses it as a synonym for compassion; charity; decency; integrity. “He is such a human person”. Must one now go in search of an entirely different set of synonyms: cruelty; exploitation; unscrupulousness; or whatever?’6
In 1921, Ellery Cory Stowell, a famous Columbia University law professor and widely known writer on US foreign relations, published a book on the subject of intervention in international law. In this work, he dedicated an important section to what he described as ‘intervention for humanity or humanitarian intervention’.7 Unsurprisingly, he underlined the role played by British anti-slave trade policies in shaping this concept throughout the nineteenth century both in theory and practice. In the part dedicated to anti-slavery policies, he mentioned the 1888 Zanzibar blockade as a controversial but, nonetheless, interesting case (see Chapter Seven).8 Even though Stowell only mentioned briefly the 1888 blockade, this shows that anti-slavery policies related to Zanzibar inspired some reflections to major law scholars when looking at the emergence of humanitarian interventions. Stowell’s point reflects exactly what this book has so far intended to do: put the history of the repression of the slave trade in Zanzibar back into the perspective of the history of humanitarian interventions, and vice versa.
Stowell, however, was not the first influential lawyer to dwell upon the concept of humanitarian intervention. Before him, Theodore D. Woolsey in the 1860s or Antoine Rougier the 1900s had used the expressions of ‘interference in the score of humanity or religion’, or, more interestingly, ‘l’intervention d’humanité’ [Humanitarian Intervention].9 Earlier in 1845, Henry Wheaton, another renowned American jurist and diplomat, justified the interference of European powers in Greece in 1827 as in the ‘interests of humanity’.10 Later in 1876, Professor Aegidius Arntz, a German scholar teaching at the University of Brussels, defended this new kind of intervention, stating that ‘when a government, although acting within its rights of sovereignty, violates the rights of humanity ... the right of intervention may be lawfully be exercised’.11 Arntz’s words are particularly striking to a twenty-first century reader because they seem to echo perfectly well the main argument in favour of humanitarian interventions today. Yet, we should be careful and not so easily slip into anachronism. Arntz’s statement is, first of all, a blow to State sovereignty and non-intervention, two principles gradually erected as sacrosanct cornerstones of international relations since the seventeenth century, a fact which became particularly pregnant after the 1945 United Nations Charter was proclaimed.12 Secondly, Arntz justified ‘the right of intervention’ on the basis of some ‘universal rights’ - ‘rights of humanity’ as he called them - whereas this expression had not any meaning in positive law yet. In fact, ‘human rights’ only became acknowledged
Anti-slave trade policies 195 as a pillar of international law after the United Nations Charter (1945) and the Universal Declaration of Human Rights (1948) were adopted by the international community. Besides, Arntz’s ‘rights of humanity’ should not be mistaken with today’s ‘human rights’ even though some important similarities - in spirit but not in letter - can certainly be found. Arntz’s definition shows that a fierce debate existed over the lawfulness and legitimacy of military intervention launched in the name of ‘the rights of humanity’. Nearly 20 years before Arntz, John Stuart Mill, one of the leading economists and polemicists of his time, had also addressed this major debate of international relations in publishing a short, yet famous, essay on non-intervention.13 In this publication, Stuart Mill did not mention humanitarian intervention as a concept and stressed that non-intervention was the general principle of international relations. However, he pointed that intervention into the domestic affairs of another state could be justified, among other cases: ‘to procure the abandonment of some national crime and scandal to humanity, such as the slave trade’.14 Again, a vague universal moral principle, phrased as ‘scandal to humanity’, was used to allow intervention to lawfully breach State sovereignty. But it is important to note that John Stuart Mill probably chose the example of the slave trade to make his point since abolitionism had made it the greatest ‘scandal to humanity’ of the age.15 So had abolitionism opened a new way for intervention into the realm of international law and international relations.
Since ‘humanity’ was ‘la raison d’être’ of those interventions, Edward Hall, another prominent British lawyer who published influential books on international public law, eventually coined the term of ‘humanitarian intervention’ in 1880.16 Even though Hall argued that ‘interventions which have taken place upon the real or pretended grounds of humanity and religion must be defended’, his statement shows how controversial this new theory was.17 A few decades later, in 1905, L. F. L. Oppenheim, a most respected German lawyer often described as the father of contemporary international law, continued to discuss the legitimacy of ‘intervention in the interest of humanity for the purpose of stopping religious persecutions and endless cruelties in times of peace and war’.18 Once more, ‘humanity’ - a most elusive principle of natural law that we will study in the second part of this chapter - was mobilised to justify the legitimacy and lawfulness of intervention before international law. Of course, throughout the nineteenth century, a lot of European scholars, such as August Whilem Heffer, Théophile Funck-Brentano, Albert Sorel, or Pasquale Fiore, rejected the idea that intervention could be lawfully justified by ‘inhuman acts, however condemnable they are’.19 All insisted on non-intervention and sovereignty as the sacred pillars of international relations, claiming that if these principles were not respected this would lead world affairs to chaos. As Rodogno highlighted ‘the fundamental principal of international relations [in the nineteenth century] was the principle of non-intervention, which precisely forbade interference in the internal affairs of a sovereign state’.20
However, Alexis Heraclides and Ada Dialla have shown, in their comprehensive study of humanitarian intervention, that overall a majority of international law scholars supported humanitarian intervention between 1850 and 1930.21
In 1910, Rougier, a French law professor who taught at the Universities of Caen and Lausanne, published a long essay on ‘La Théorie de ¡’Intervention d’Humanité’, or ‘The Humanitarian Intervention Theory’, proving that the concept had some success among scholars.22 At the very beginning of his work, Rougier outlined that ‘the theory according to which the acts ... of a government..., when contrary to the laws of humanity, give rise, for one or more foreign states, to a right to intervene ... has taken, for half a century, a fairly important place in the law doctrine, even if it has yet received little political applications’.23 In short, humanitarian intervention as a concept of international law had been more a theory than a widespread practice and its legitimacy was rooted in the ‘laws of humanity’, a concept quite difficult to grasp today as we will later see. Rougier’s reflection upon ‘1’intervention d’humanité’ was mainly focused on the recent history of the Ottoman Empire or what is more commonly known as ‘the Eastern Question’. Rodogno demonstrated that the emergence of humanitarian intervention was directly linked to the issue of the protection of Christian minorities within the Ottoman Empire, a question at the heart of international relations since the Crimean War (1853-1856).24 For this reason, Rougier insisted that ‘at every moment [throughout the nineteenth century], they [European nations] had to intervene, or threatened to intervene, while was unfolding the appalling series of massacres in Greece (1826), Syria (1860), Crete (1866; 1894), Bulgaria (1876), Armenia (1896), Macedonia (1905)’.25 But Rougier did not limit his reflection to the Eastern Question showing that the debate had more global implications than the sole case of the Ottoman Empire. He also referred to the American intervention in Cuba (1898).26 He mentioned as well the 1900 international intervention led against the Boxer rebellion in China, a violent military expedition justified in proclaiming that ‘crimes against the law of nations, against the laws of humanity, and against civilisation’ had been committed.27 Finally, Rougier, like many others, looked at the repression of the slave trade as a legitimate source of humanitarian intervention pointing that ‘the great powers declared the slave trade contrary to the rights of humanity’ at the 1815 Vienna Congress.28 Even if Rougier acknowledged that ‘it [was] by the means of international agreements rather than interventions that powers ended the curse of human trafficking’, he nonetheless concluded: ‘it [did] not mean, in any way, that the independence of the slave states is absolutely inviolable and that the attacks on freedom could not trigger a legitimate intervention’.2’ So had it been the case with the right of visit in Zanzibar waters as it was shown in Chapter Two.
In short, Rougier and his ‘Humanitarian Intervention Theory’ mirrored perfectly well how ‘fighting the ... slave trade and protecting religious minorities became the two major impulses for the emergence of a new kind
Anti-slave trade policies 197 of interventionist doctrine’ coined as humanitarian intervention.30 This new theory claimed it was not only morally but also legally just to interfere with State sovereignty in order to protect ‘the rights of humanity’ in the name of ‘the laws of humanity’. Anti-slave trade operations in Zanzibar must be appreciated in this light. In 1873, the Sultan was forced by the British consul to sign a new treaty abolishing the slave trade on the island and its African dominions in the name of new ethical norms which had emerged with abolitionism as noted in Chapter Five. This interference into the Sultanate’s sovereignty was thought to be legitimate because it allegedly defended ‘the rights and the laws of humanity’. But what did these expressions really mean at the time? Is it possible to understand them in the way contemporaries did without slipping again into the trap of anachronism?