It is a commonplace to begin any discussion of contemporary international law by saying “there are few topics so central to international law as x,” but it is to be hoped that the overuse of the cliche does not dampen its proper deployment. There are few topics so central to international law as humanitarian intervention. The UN structure was born in the final days of World War II, and though originally conceived as a more effective means of preventing yet another world war, it quickly found further moral purpose in preventing crimes against humanity. Two of the notable early achievements of the UN were the Convention on Genocide and the Universal Declaration of Human Rights, both enacted in 1948. Humanitarian intervention, a concept centered around a remembrance of the Holocaust and the slogan ‘Never Again,’ has not receded since that time; with humanitarian justifications claimed for interventions in East Pakistan, Cambodia, Uganda, Sierra Leone, Granada and many other places besides. The failure to intervene in Rwanda and the NATO-led intervention in Kosovo feature prominently in the most recent scholarly work on the topic. Commentators will frequently claim that Rwanda and, in the present day, the Sudan, provide evidence the regime of law under the UN is broken, and new and better legal and institutional solutions must be found.
Hugo Grotius, the seventeenth-century Dutch jurist, often credited as ‘the father of international law,’ did not have a doctrine of humanitarian intervention in the contemporary sense. What he did have, however, was an ethical theory of intervention, which incorporated many of the concerns found in the modern literature. His theory, not bound up, as modern theories so often are, in the particular legal-institutional nexus brought into being by the UN Charter, is both a model for those now wishing to discuss humanitarian intervention, and an important point outside the contemporary debate from which to see its characteristic shortcomings.
The difference, to put it in its broadest terms, is between sentiments such as these, from the UN Charter, Article II section 4:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
And Article 51:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
And two selections from Grotius, Book I Chapter 5:
“But tho’ there were no other obligations, it is enough that we are allied by common humanity. For every man ought to interest himself in what regards other men.”
And Book II, Chapter 25:
“But if the injustice be visible, as if a Busiris, a Phalaris, or a Thracian Diomedes exercise tyrannies over subjects, as no good man living can approve of, the right of human society shall not be therefore excluded.”
Under the most widely accepted reading of the UN Charter, the only legitimate use of force by any group other than the UN Security Council is force used in self-defense. Humanitarian motives, so central to the Universal Declaration of Human Rights and the Convention on Genocide, are nowhere mentioned. J.L. Brierly, a prominent international lawyer during the mid-20th century, makes a perceptive criticism of the United Nations structure along these lines:
“It is not unresonable, therefore, that when a decisions of the Security Council may have major political consequences, especially when it may require enforcement measures to give it effect…the Great Powers should refuse to allow this burden to be thrust upon them by some majority of less interested smaller powers…it seems probably that the result of insisting that only a body that had power to make binding decisions could act effectively has been to give us a body that can neither decide nor act.”
The United Nations system, in other words, attempts to create an international society by giving broad prerogative to each state in order that it may defend its own interests. The entire problem of humanitarian intervention, from the cases where no one is willing to act, to those where states act under questionably legal and ethical motives, arises from the UN Charter system and its blanket prohibition on wars in anything other than self-defense. Grotius, who outlines a superior alternative, allows the modern reader to see the extent to which law is turned against morality.
WHAT I'VE BEEN WORKING ON: Or what's currently the introduction to it, anyway. It's a little talky and general, but one, it's an introduction, and two, the panel I'll be presenting this paper at will be historically-oriented on issues of just war, so I don't think I can assume broad familiarity with contemporary international law literature. (I assume, for those with more technical knowledge, the positivist side in the positivist-legal realist debate on how to interpret the UN Charter; in part because it makes for a better contrast with Grotius, and in part because, as one of the essays in the Holzgrefe and Keohane volume notes, international lawyers tend overwhelmingly to take that view)