Advocates and opponents of humanitarian intervention
From the 1860s onwards, international law became an academic discipline in its own right in Europe and the Americas, taught separately from philosophy, natural law or civil law, and came to be written by professional academics or theoretically inclined diplomats.1 Until then what existed was the droit public de l’Europe or ‘external public law’. Britain in particular had to face the ‘spectre of Austin’,2 who dominated British jurisprudence in the first part of the nineteenth century. For John Austin, ‘laws properly so called’ were ‘established directly by command’3 and those lacking command were ‘positive moral rules which are laws improperly so called … laws set or imposed by general opinion’4 and this was the case with the ‘so called law of nations [which] consists of opinions or sentiments current among nations generally’.5
Two landmarks for international law are the founding of its first scholarly journal and of an institute/association of international lawyers (see chapter 3). The journal, the Revue de droit international et de législation comparée, was launched in Belgium in 1868, by the Belgian Gustave Rolin-Jaequemyns, the Dutch Tobias Asser and the British John Westlake, with the support of the Italian Professor Pasquale Mancini.6 Rolin-Jaequemyns was also at the forefront of the creation of the Institut de droit international in 1873, with the help of Bluntschli, Holtzendorff, Calvo, Mancini and a few others.7
At its inception, the ultimate aim of the Institut was ‘[d]e favoriser le progrès du droit international, en s’efforçant de devenir l’organe de la conscience juridique du monde civilisé’.8 The wording in question had come from Bluntschli, who had used such language before in his publications.9 As Martti Koskenniemi points out, the reference to ‘legal conscience’, or ‘consciousness’, seems to us today ‘old-fashioned and difficult to take in full seriousness’.10 But in those days this aim was taken in all seriousness and voiced by worldly publicists, many of them with hands-on experience as politicians, diplomats, lawyers or judges.
Interestingly, humanitarian intervention entered the scene as international law was developing into a scientific discipline, as in the case of another science in its modern form, history, which matured hand in hand with the rise of nationalism (hence the emergence of national historiography in the nineteenth century).11
From the 1830s until the 1930s most publicists addressed the question of intervening or not for humanitarian purposes to stop ‘the effusion of blood’, with a clear majority favouring the use of armed force for humanitarian purposes in certain exceptional cases, thereby bypassing the cardinal norm of non-intervention (see table 4.1). According to Wilhelm Grewe’s assessment, in the nineteenth century ‘the principle of humanitarian intervention increasingly absorbed all other grounds of intervention (with the exception of contractual permission and self-help)’.12 This tendency in law and practice is striking, for, prior to the UN Charter and the international law of human rights, there was no international legal ban on acts of inhumanity by states, and sovereignty and independence, including the norm of non-intervention, were the cornerstones of international law. On the other hand, aggressive war was permitted and was a manifestation of sovereignty.13 The ‘paradoxical outcome’ was that ‘the greater threat to the integrity of states (waging war) was widely regarded as legitimate, but the lesser (intervention) was not’;14 thus, ‘in the absence of a clear distinction between intervention and war any regulation of the former could be circumvented by resort to the latter’.15
There was also the parallel development of the laws of war aimed at humanizing warfare initiated by Henry Dunant in the wake of the suffering in the Crimean War and the 1859 Battle of Solferino during the Second Italian War of Independence.16 The laws of warfare were the first branch of international law to be codified17 and these mention the concept of ‘humanity’. The 1899 and 1907 Hague Conventions on land warfare adopted, in ‘the interests of humanity’, what came to be known as the ‘Martens clause’, proposed by F. F. Martens, ‘that in cases not included in the Regulations adopted … the inhabitants and the belligerents remain under the protection and the rule of the principles of international law, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’. Thus, at the turn of century, the humanitarian idea had entered general international law.18
The advocates of humanitarian intervention, within a period of about a century, from the 1830s to the 1930s, regarded it as legitimate, but only if it fulfilled the following criteria: (1) intervention was needed to counter gross mistreatment and massacres ‘shocking the moral consciousness of mankind’, (2) the intervention was collective or quasi-collective, so as to acquire international legitimacy and limit the abuse factor; and (3) disinterestedness or that humanitarian concern was one of the main motives and justifications for intervening.19
Those opposed to such interventions based their case on the principles of sovereignty and independence, with non-intervention as their corollary, as well as on practical grounds, especially abuse by powerful states, with total disinterestedness regarded as unrealistic and by definition bogus. Some also alluded to the double standard of singling out only ‘barbarous’ states for intervention.
We have identified no less than 100 publicists who had addressed the question from the 1830s up to the 1930s, mainly with the historical examples of the nineteenth century in mind.20 Sixty-two were supportive of humanitarian intervention (that is, 62 per cent of the total). Of the publicists supportive of armed humanitarian intervention, forty-eight claimed a right to intervene in exceptional circumstances only and fourteen invoked moral or political reasons. There is also a substantial minority against any such legal or moral right: thirty-eight publicists (that is, 38 per cent of the total) (see table 4.1).21
To make our presentation as lucid as possible, we will divide our material into five periods, from the 1830s until the 1930s, and present it, to the degree possible, in the form of a debate.
1830–50: from Wheaton to Heffter
In the 1830s and 1840s, eleven publicists addressed the question, more or less equally divided into advocates and opponents of humanitarian intervention (see table 4.1).
In the first decades of the twentieth century, Egide Arntz, of the University of Brussels, was credited as the first to formulate the theory of humanitarian intervention, this in the mid-1870s.22 Arntz’s thesis was presented in a letter he sent to Rolin-Jaequemyns, which the latter published in the Revue.23 But most commentators in the second part of the nineteenth and today regard Wheaton as the initiator of the concept, on the basis of the following statement, made a few years after the end of the Greek independence struggle, in his 1836 treatise:24
The interference of the Christian powers of Europe, in favor of the Greeks, who, after enduring ages of cruel oppression, had shaken off the Ottoman yoke, affords a further illustration of the principles of international law authorizing such an interference, not only where the interests and safety of other powers are immediately affected by the internal transactions of a particular state, but where the general interests of humanity are infringed by the excesses of a barbarous and despotic government.
Wheaton’s view on intervention was put to task by the Italian–French jurist, economist and politician Pellegrino Rossi and by the British lawyer and economist Nassau William Senior. Rossi advocated neutrality in civil wars, save when a neighbouring state was menaced by the conflict.25 Senior, a frequent writer on political affairs and governmental adviser, commented that ‘interference for the mere purpose of preventing the oppression of Subjects by their Prince’ was unlawful26 and dangerous, and made the lasting point that it was ‘the privilege … of the strong against the weak’.27
In the 1840s, three advocates of non-intervention allowed for a slight opening for exceptional intervention in instances of humanitarian plight. The Norwegian authority Johan Heiberg (in 1842) regarded intervention for humanity ‘inevitable’, when ‘assured rights and reciprocally recognized principles’ were ‘endangered’.28 His German contemporary, Heffter, opined that nations ‘have incontestably the right to put an end, after common consent, to a civil war which devours one or more countries’ and this could also be done by ‘armed interference’;29 he added that ‘foreign powers can assist the party whose position seems to them to be founded on justice, if it invokes their help’.30 Herman Rodecker von Rotteck asserted that ‘[h]umanitarian intervention should be considered as a violation of law, but sometimes excused, or even applauded, as we excuse a crime’.31
1851–70: from Phillimore, Woolsey and Mamiani to Fiore and Bluntschli
In the 1850s and 1860s at least eleven publicists addressed the question for the first time, with the supporters more than double the opponents, eight against three, and if to them we add those from the previous period who had not passed away (and presumably had not retracted their views), the numbers are ten as opposed to six jurists (see table 4.1).
In the mid-1850s, Phillimore argued that a limitation of the principle of non-intervention ‘may possibly arise from the necessity of Intervention by Foreign Powers in order to stay the shedding of blood caused by a protracted and desolating civil war in the bosom of another State’.32 He regarded it as ‘an accessory’ to other factors and on its own not in the code of international law, ‘since it is manifestly open to abuses’.33 Despite his misgivings he concluded that intervention by a Christian state ‘on behalf of the subjects of another upon the ground of Religion’ is not ‘a violation of International Law … as an armed Intervention to prevent the shedding of blood and protracted internal hostilities’.34
In the US, the Yale Professor Theodore Dwight Woolsey maintained, in his 1860 treatise, that interference can be justified if ‘brought about by the crime of a government against its subjects’,35 adding that in the case ‘of extraordinary crimes committed by a government against its subjects … the danger of erring is less than in the other instances, because interference here is more disinterested; and the evil results of a mistake are less, because such cases are comparatively rare’.36 In the same year, Professor Albert Friedrich Berner of the University of Berlin asserted that there were reasonable exceptions to non-intervention, such as continued acts of inhumanity, for ‘[m]an is the highest right before which all other right must incline’.37
The end of the 1850s saw one of the most elaborate rebuttals of humanitarian intervention, by Terenzio Mamiani. After a detailed presentation of the various reasons for intervention he concluded that ‘all forcible intervention in the internal affairs of a people is to be deemed unjust and oppressive’.38 As he put it, ‘[t]he doings or misdoings of a people … within the bounds of its own territory, and without detriment to others’ rights, never afford any ground for legitimate intervention’.39 However, Mamiani allowed for two exceptions to non-intervention, which he did not associate with intervention in humanitarian plights: (1) intervention when a war was waged by a subject people;40 and (2) ‘opposing the wrongful intervention of others, and undoing the certain and immediate effects which it has induced’,41 that is, counter-intervention.
Mountague Bernard, the first Professor of International Law in Britain, occupant of the newly created Chichele Chair of International Law and Diplomacy at Oxford University, is hard to pinpoint. In a lecture at All Souls College at Oxford University on the principle of non-intervention, he argued against intervention, referring extensively to Mamiani’s arguments.42 But then he made an about-face by distinguishing between ‘rebellion’ and ‘revolt’, defining the former as successful change of government or dynasty and the latter as the splitting of a state into two parts. He claimed that in the latter case ‘interference ceases to be intervention when this is done’, as in the case of the Battle of Navarino during the Greek War of Independence (see chapter 6), which could not be seen as ‘simply an intervention in the internal affairs of the Turkish empire’.43 Another remark by Bernard makes his overall position even more baffling: that ‘for the protection of the weak … there may be the most powerful inducements to shake off the restraints of the rule [of non-intervention]. Nay, there may even be cases in which it becomes a positive duty to transgress it’.44
Henry Wager Halleck, an American Civil War general better known as a jurist, maintained that interference on humanitarian grounds was lawful only if it amounted to ‘pacific mediation’, that is, ‘one State merely proposing its good offices for the settlement of the intestine [sic] dissensions of another State’.45
The important Liberal politician Sir William Vernon Harcourt, repeatedly cabinet minister under Gladstone and one-time Professor of International Law at Cambridge (the first occupant of the Whewell Chair in International Law), made the following oft-quoted remark: ‘Intervention is a question rather of policy than of law. It is above and beyond the domain of law, and when wisely and equitably handled by those who have the power to give effect to it, may be the highest policy of justice and humanity’.46 But he cautioned: ‘I am not insensitive to the respectable sentiments of humanity … but I also know that, of all things, the most cruel is a mistaken and useless interference’.47
Pasquale Fiore, the leading Italian authority, criticized the publicists who remained indifferent spectators of the affairs of other countries if their interests were not directly threatened48 and added graphically (in 1865):49
Let us suppose … that a prince, in order to quell a revolution, violates all the most recognized laws of war, kills the prisoners, authorizes plundering, rapine, arson, and encourages his supporters to commit those odious acts and others of the same kind.… The laissez-faire and indifference of other States constitutes an egoistic policy contrary to the rights of all; for whoever violates international law …violates it not only to the detriment of the person directly affected, but against all civilized States.
His conclusion is that under these circumstances collective intervention is ‘obligatory’.50
Bluntschli of Heidelberg University asserted that ‘[t]he civilized nations in particular are called upon to develop the sentiment of the common laws of humanity’51 and that ‘[o]ne is authorized to intervene to ensure respect for the individual rights recognized as necessary … an oppressed minority could … provoke foreign intervention, not in the name of the state, but in the name of international law’.52
1871–90: from Arntz and Martens to Carnazza Amari and Renault
In the 1870s and 1880s many authorities advocated a legal right of humanitarian intervention, with a majority in favour, thirteen against ten, and if we add those from the previous period who were still active, the numbers are twenty-two to thirteen publicists (see table 4.1).
In the 1870s Arntz set the pace with the following oft-quoted passage:53
When a government, although acting within the limits of its sovereign rights, violates the rights of humanity … by an excess of injustice and cruelty, which deeply wounds our mores and civilization, the right of intervention is legitimate. For however worthy of respect may be the rights of sovereignty and the independence of States, there is something even more worthy of respect, and this is the law of humanity, or of human society, which must not be outraged.
Arntz specified that intervention in the name of humanity should be sanctioned by the greater number of civilized states, which should arrive at a collective decision, for only in this manner could intervention be reconciled with state independence.54
Rolin-Jaequemyns concurred with Arntz, and asked ‘what would happen if in the place of a despotic monarch who is an outrage to the law of humanity, a victorious faction acts, in the name of a republic or a democracy, with analogous excess … [embarks on] a civil war of extermination, massacring the prisoners and hostages and threatening to plunge again into barbary all the parts of the country that have not already become a desert’?55 Elsewhere he made the following pertinent point: for ‘a State to lay claim to the principle of non-intervention it should be a State worthy of its name and a viable one’.56
F. F. Martens, the major Russian jurist, referred in 1877, apropos of the Russian intervention in the Balkans (see chapter 9), to the ‘interests of humanity’ as a reason for intervention, ‘in order to safeguard the interests recognized as worthy of sympathy by all the civilized nations’, namely ‘the life and honour of Christians’.57 A few years later he elaborated the point thus:58
In the relations of civilized peoples with the non-civilized … the intervention by civilized states is in principle legitimate, in the case of a Christian population of those countries being exposed to barbaric persecutions or massacres. In this particular case intervention is justified by common religious interests and considerations of philanthropy.
This view regarding non-civilized states had first appeared in 1874 in a study in Russian by Leonid Komarovskiy, Martens’s colleague at the University of Moscow, who was a student of Bluntschli and a frequent writer in the Revue.59
Those supportive of humanitarian intervention during this decade included Sheldon Amos,60 Professor of Jurisprudence at University College London, and the British judge Sir Edward Shepherd Creasy.61 Those decidedly against included the Catania professor and Italian politician Giuseppe Carnazza Amari, the French international lawyers Henri Bonfils62 and Louis Renault and the Luxembourgian French sociologist Théophile Funck-Brentano, together with the French historian Albert Sorel,63 Professor of Diplomatic History and co-founder of the École libre des sciences politiques.
As forcefully put by Giuseppe Carnazza Amari, Fiore’s main rival in the Italian school on this question, a champion of non-intervention absolue:64
No case exists where a foreign sovereignty has the right to substitute national sovereignty; consequently intervention is never possible, neither as a rule nor as an exception.… All coercive influence from abroad constitutes a violent intrusion of one’s domain, a supreme tyranny of the powerful against the weak, the usurpation and the rapine of the sovereign powers on which we have no right, an exercise of illegitimate power, a servitude imposed by the oppressor on the oppressed.
As for civil wars, he maintained that ‘whatever the good intention may be of the one who wants to intervene, he lacks the right, for he has no sovereign authority over other nations … the man with the best of intentions in the world cannot reconcile by force another family which leads a life of hate and troubles’.65 Yet he allowed for three exceptions, which he did not regard as interventions and contraventions of non-intervention: assistance to a people who cannot on their own get rid of foreign domination; aid to a people who want to separate from a people with whom they have been forcefully united; and aid to a people to deliver themselves from foreign intervention and its results.66
Louis Renault of the University of Paris, the doyen of French international lawyers in the last two decades of nineteenth century, was equally averse to the idea of humanitarian intervention. As he tersely put it (in 1879): ‘Very often the nations called civilized have abused their power with regard to the so-called barbarian peoples, having declared unjustified wars and having violated the most elementary rules of international law’.67 Referring to Bluntschli’s view on humanitarian intervention he notes that ‘this may happen, but I think that it is not desirable, for the slope will be slippery’.68
In the period 1880–90, those supporting humanitarian intervention include the British William Edward Hall and James Lorimer,69 the French diplomat Édouard Engelhardt,70 the Swiss Joseph Hornung71 and the Greek Michel Kebedgy, of the University of Berne.72
Hall at the start of the 1880s was circumspect in his widely read treatise of 1880 (with eight editions up to 1924),73 putting commentators at a loss where to place him in the debate.74 According to Hall, ‘[t]yrannical conduct of a government towards its subjects, massacres and brutality in a civil war, or religious persecution, are acts which have nothing to do directly or indirectly with such [inter-state] relations’.75 But he concluded that intervention ‘for the reason or upon the pretexts of cruelty, or oppression, or the horrors of civil war … could only be excused in rare and extreme cases in consideration of the unquestionably extraordinary character of the facts causing them, and of the evident purity of the motives and conduct of the intervening state’.76
The 1880s also saw one of the clearest presentations of the arguments against humanitarian intervention, by the French jurist Paul Louis Pradier-Fodéré, one-time Professor of International Law at the University of Lima and author of a multivolume treatise on international law, who referred to the views of Arntz, Rolin-Jaequemyns, Woolsey and Fiore in support of intervening for humanitarian reasons, but concluded that ‘it is impossible to accept such a doctrine’,77 for:78
A nation could still be in such a backward stage as to accommodate absolutism, to voluntarily suffer despotism; on the basis of what right can foreign Powers claim that they can impose liberty? A nation, even a backward one, is the only one competent to regulate its political, civil and religious organization; it is free to adopt its form on the basis of its customs and ideas; foreign peoples are not entitled to impose them.
For Pradier-Fodéré, humanitarian intervention ‘is illegitimate for it constitutes an infringement upon the independence of States.… The acts of inhumanity, however condemnable they may be, as long as they do not affect or threaten the rights of other States, do not provide the latter with a basis for lawful intervention, as no State can stand up in judgment of the conduct of others’.79
1891–1918: from Lawrence and Rivier to Westlake, Oppenheim and Nys
In the 1890s and until the end of the First World War, the advocates total eighteen and the opponents thirteen, and if we add those from the previous period who were still active, the numbers are nearly equal, twenty-six advocates and twentyfour opposed (see table 4.1).
During the 1890s the jurists supportive of humanitarian intervention include the British Thomas Joseph Lawrence, the Swiss Alphonse Rivier, the French Antoine Pillet,80 Louis Le Fur81 and Albert de Lapradelle,82 and the Americans Amos S. Hershey83 and Theodore S. Woolsey.84 Those against in the 1890s include the French Frantz Despagnet, the Germans Franz von Liszt85 and Adolphe de Floeckher86 and the British Thomas Alfred Walker.87
In 1895 Lawrence of Oxford University put it thus:88
Should the cruelty be so long continued and so revolting that the best instincts of human nature are outraged by it, and should an opportunity arise for bringing it to an end and removing its cause without adding fuel to the flame of the contest, there is nothing in the law of nations which will condemn as a wrong-doer the state which steps forward and undertakes the necessary intervention. Each case must be judged on its own merits … I have no right to enter my neighbor’s garden without his consent; but if I saw a child of his robbed and ill-treated in it by a tramp, I should throw ceremony to the wind and rush to the rescue without waiting to ask for permission.
Rivier, a year later, referred approvingly to the views of Arntz and Rolin-Jaequemyns and asserted that ‘[t]he law of human society … represented by the Society of nations is superior to the law of a nation on its own. When a State violates the law of humanity, it is not for one state to intervene, on its own, and without a mandate. But States as a whole, representing human society, which is injured … have the right to intervene as in the case of one State on its own which intervenes when its proper right of preservation is injured’.89
Among opponents, Despagnet of the University of Bordeaux argued that intervention against a government ‘which in its exercise of internal sovereignty violates the laws of humanity … cannot be accepted, as it gives rise to abuse and, under the pretext of safeguarding the interests of populations, it completely ruins the respect of State sovereignty; a government could, for example, not permit slavery or halt the traffic of slaves in all the domains that fall under its own authority, but it cannot impose the suppression [of slavery] to other States in their territory’.90
In the early twentieth century and until the end of the ‘Great War’, supporters of humanitarian intervention include John Westlake, Lassa Oppenheim, the French Alexandre Mérignhac91 and Antoine Rougier, the Italian Arrigo Cavaglieri,92 and the Americans William Ezra Lingelbach,93 Edwin Borchard94 and Henry Green Hodges.95 Those against include the British Thomas Erskine Holland96 and Frederick Edwin Smith,97 the Belgian Ernest Nys, the German Karl von Gareis,98 and the Americans George Grafton Wilson and Charles Cheney Hyde.99
Westlake referred to anarchy and misrule as grounds for intervention100 and stated ‘[i]t is idle to argue in such a case that the duty of neighbouring peoples is to look on quietly. Laws are made for men and not for creatures of the imagination, and they must not create or tolerate for them situations which are beyond the endurance’.101
Oppenheim was more circumspect in his monumental 1905 treatise, contending that ‘[m]any jurists maintain that intervention is … admissible, or even has a basis of right, when exercised in the interest of humanity for the purpose of stopping religious persecution and endless cruelties in time of peace and war’ and he referred to intervention in the Greek case.102 And added ‘[b]ut whether there is really a rule of the Law of Nations which admits such intervention may well be doubted … and it may perhaps be said that in time the Law of Nations will recognise the rule that interventions in the interest of humanity are admissible, provided they are exercised in the form of collective intervention of the Powers’.103
Rougier argued that collective humanitarian intervention was preferable to individual intervention for it is more able to establish ‘disinterestedness and greater authority’.104 He was the first jurist to present a list of criteria for humanitarian intervention, including ‘a violation of the law of humanity and not merely a violation of positive national law’105 and ‘exceptionally grave cases, as when the life of an entire population is menaced, when the barbaric acts are often repeated, when their character is particularly horrible that it violently shocks the universal consciousness’.106 He also refers to considerations of opportunity, appeals by the victims and favourable conditions for intervening.107
On the side of the opponents, worth referring to are the points raised by Nys and Wilson. Nys argued that ‘independence for States is like liberty for the individual’108 and referred approvingly to the views of Renault and Pradier-Fodéré against intervention.109 As for the admixture of the European powers in the Eastern Question, he maintained that ‘it cannot be invoked to justify the doctrine of intervention’, for it was something else: ‘the establishment of a protectorate regarding the Christian nations under the sultan’.110
Wilson, Professor of International Law at Harvard University and at the Fletcher School of Law and Diplomacy, pointed out that ‘[f]or a state to set itself up as a judge of the actions of another state and to assume that it has the right to extend its powers to settling and regulating affairs of morals, religion, and the relations of public authority to the subjects in another state, on the ground of maintaining the rights of mankind as a whole, is to take a ground which the conduct of any modern state, even the most civilized, would hardly warrant’.111
1919–39: from Stowell and Higgins to Lauterpacht and Politis
Surprisingly, during the inter-war period, at a time when no humanitarian intervention took place, the overwhelming majority of advocates who addressed the question for the first time is in support, at eighteen, as opposed to only six opponents, and if we add those from the previous period who were still active, the advocates total thirty-three as opposed to fourteen against (see table 4.1).
Supporters include the Polish-British Hersch Lauterpacht, the French Paul Fauchille112 and Georges Scelle,113 the Americans Ellery Stowell, Charles Fenwick114 and Pitman Potter,115 the Greeks Nicolas Politis116 and Stélio Séfériadès117 (father of Nobel Laureate poet George Seferis), and the Russians André Mandelstam118 and Michel Taube.119 Those against include the British Alexander Pearce Higgins, Percy Winfield120 and James Leslie Brierly,121 the French Robert Redslob122 and the German Karl Strupp.
We will start with the opponents this time round. Strupp, of Frankfurt University and later Istanbul University, discussed the views of Cavaglieri in support of collective humanitarian intervention123 and concluded that it is unacceptable and dangerous, and given the fact that ‘no one can say how many States suffice to constitute a collectivity, we are led to practically authorize the great Powers to interfere in the affairs of smaller States’.124
According to Higgins, Whewell Professor in Cambridge, interventions in instances of social upheavals and civil wars ‘constitute a grave danger to international harmony because they offer an opportunity to an unprincipled state to take undue advantage of the internal weakness or maladministration of such a state to increase its own power’.125 Thus it may acquire ‘a de facto protectorate while protesting that its intervention is in the interests of humanity’.126
Moving on to the advocates, Stowell, of Columbia University, advocated humanitarian intervention, for no state ‘may persist in conduct which is considered to violate the universally recognized principles of decency and humanity’.127 He accepted that ‘recourse to intervention on the ground of humanity may at times offer a cloak for interference and aggression’,128 but maintained that ‘a deliberate violation of that minimum of security and justice to which every individual in a civilized community is entitled’ made it ‘the right and duty of other states to intervene’.129
Lauterpacht, one of the greatest international lawyers of the twentieth century, then in his thirties, who succeeded Higgins as Whewell Professor, had the following to say on the matter:130
The sovereign and independent State receives from international law absolute autonomy as regards the treatment of its inhabitants…. But this exclusive right could be abused, in which case it ceases to be a right and the competence of international law to protect the individual reasserts all its force … humanitarian intervention is both a juridical as well a political principle of international society.
Politis, one of the most innovative international jurists of the inter-war period and a key figure in the League of Nations,131 Professor at the University of Paris and later Greek Foreign Minister, made the following important point in his book on international morality, written just before the Second World War and published posthumously:132
Every people has the right to organise itself as it wants … without other countries being in the position to oppose or to intervene in what are internal affairs.… But … such a right will merit due respect on the principle that it makes reasonable use of it. If, on the contrary, it gives ground to abuses of power … and, in general, if the prescriptions of international morality and of international law are downtrodden, other countries are entitled to intervene; they could put into play the rules of international responsibility.
As we have seen, most of the issues for and against humanitarian intervention raised today were developed in the period 1830–1939:133 the moral drive to do something for the oppressed in instances where the moral consciousness of humankind is shocked, the abuse factor, a level of disinterestedness, the need to maintain the principle of sovereignty and independence, the assuredness of a successful outcome stopping the bloodshed and so on.
It has been suggested that the Anglo-Americans were more supportive than the continental schools.134 In fact there is an even split within the British and French schools of thought. Most US jurists supported intervention on legal or moral grounds, though a substantial minority were against. Russian publicists (apparently with the Ottoman Empire in mind) as well as those from the small states of Europe, such as Switzerland, Belgium and Greece, were all, with no exception, advocates of humanitarian intervention. The Italian school tilts more towards non-intervention, though with the proviso of support for liberation movements and counter-intervention. The only group that was for the most part against is the German school, which may perhaps be attributed to the fact that Prussia, Germany and Austria–Hungary refrained from intervening militarily in humanitarian plights or in internal wars.
Until 1914 all publicists, with very few exceptions, adhered to the civilized–barbarian distinction (see chapter 3), but most advocates avoided any distinction as to its application, which implies that they considered, as a matter of principle, that intervention for reasons of humanity is applicable to all, irrespective of degree of civilization.
Some of the supporters of humanitarian intervention were explicit in this regard. Hornung posited that such intervention had to be raised ‘above considerations of religion or race’ and become ‘truly humanitarian in character’.135 It should apply if need be ‘against the Christian, in favour of the Muslim, the Buddhist or the pagan’.136
According to Fauchille, humanitarian intervention is practised ‘vis-à-vis civilized States as well: after all is not the violation of the right of humanity more grave when it emanates from a civilised State?’137
Kebedgy referred to the difficulty of distinguishing between civilized and non-civilized states, pointing out that atrocities could be committed by a state called civilized; if its actions indeed made it barbarous, it would lose ‘all title to respect for its independence’.138
But some publicists supportive of humanitarian intervention claim, as we have seen, that it is applicable only to ‘civilized states’ against ‘non-civilized states’. They include Martens, Komarovskiy, Lorimer, partly Bluntschli139 and, in the early twentieth century, Edwin DeWitt Dickinson,140 Phillimore regarding the Muslim states, and Engelhardt and Rolin-Jaequemyns regarding the Ottoman Empire per se.141 According to Phillimore, ‘the right of Christian Intervention on religious grounds in a Mohammedan State rests upon an obviously stronger foundation’.142 But he adds, to his credit, that ‘[t]he converse of this, viz., Mohammedan Intervention with Christian States, has, it is believed, never yet arisen in practice, but it would be subject on principle to the same law’.143
Ironically, the double standards of humanitarian intervention and the singling out of non-Christian states for intervention were criticized by opponents of the concept of humanitarian intervention, who presented their supportive peers as unprincipled. They include Pradier-Fodéré,144 Funck-Brentano and Sorel,145 Bonfils,146 Renault,147 Despagnet, Floeckher148 and Winfield.149
Despagnet, for instance, referred to ‘an alleged right of civilization that permits European peoples in particular to act against barbarian governments so as to impose upon them more ethical and humane institutions’,150 adding that it was open to abuse ‘under the cover, often hypocritical, of a disinterested civilizing mission’.151
Now we come to the fundamental question whether armed humanitarian intervention had become part of customary international law at the time, the majority view of legal authors from 1920 until today.152 This overall trend is accepted even in some of today’s polemics on the concept.153 Clearly, a majority (more than three-quarters) were in favour of humanitarian intervention, be it on legal or moral grounds. However, in order to claim that a legal right did exist, one has to wrongly lump those advocating a legal right with those invoking moral or political grounds,154 even though the latter explicitly deny such a legal right. It would be more accurate to say that from 1830 until 1939 the views were ‘divided’;155 it was ‘debatable’156 or ‘doubtful’157 whether such a right existed in positive international law.
But when it comes to humanitarian intervention as conceived in the pre-UN Charter period, which also included peremptory demands and forms of dictatorial interference short of the actual use of armed force,158 it appears that humanitarian intervention lato sensu was part of customary international law from the 1860s or 1870s onwards. In itself this is a striking finding, for the international law of human rights was yet to come, with the exception of the minority treaties regime in the peace treaties signed in Paris (1919–20) and Lausanne (1923), which hardly gave ground for intervention (their whole philosophy was minority rights in exchange for loyalty on the part of the minorities159).
We will conclude by reverting to the double-standard aspect. From an international law perspective, one view is that of Komarovskiy, Martens and others, that such a right exists only with regard to civilized states towards barbarous states if Christians are harshly treated. Another line is to regard it as a lex specialis in the relations of European states with the Ottoman Empire or China, as advocated by Bluntschli,160 Rolin-Jaequemyns,161 Westlake,162 Nys163 and Rougier.164 A third option is to regard the possibility of humanitarian intervention as a ‘special custom’ applicable only in the relations of Europe with the Ottoman Empire.165 By today’s criteria this approach is problematic, for special (or regional) customs have to be applied reciprocally and not for the benefit of one party at the expense of the other. Clearly, none of these options would carry the day in current international law, but international law as conceived in the long nineteenth century was, for better or worse, the law of the European states (and those of European extraction), those with the ‘standard of civilization’ to boot, hence the double standards that come out naturally from this perspective, however antiquated. If we draw such a conclusion we also avoid the danger of retrospective thinking.