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100 Am. J. Int'l L. 107 (2006)
Humanitarian Intervention and Pretexts for War

handle is hein.journals/ajil100 and id is 117 raw text is: HUMANITARIAN INTERVENTION AND PRETEXTS FOR WAR By Ryan Goodman* The legal status of humanitarian intervention poses a profound challenge to the future of global order.1 The central question is easy to formulate but notoriously difficult to answer: Should international law permit states to intervene militarily to stop a genocide or comparable atrocity without Security Council authorization? That question has acquired even greater sig- nificance in the wake of military interventions in Kosovo and Iraq, and nonintervention in the Sudan. Concerted deliberation on these issues, however, has reached an impasse. A key obstacle to legalizing unilateral humanitarian intervention (UHI)2 is the overriding concern that states would use the pretext of humanitarian intervention to wage wars for ulterior motives. In this article, I argue that it is just as likely, or even more likely, that the impact on states would be the opposite. Drawing on recent empirical studies, I contend that legalizing UHI should in important respects discourage wars with ulterior motives, and I discuss changes to international legal institutions that would amplify that potential effect. The concern that states would exploit a humanitarian exception to justify military aggres- sion has long dominated academic and governmental debates. This concern pits the virtues of humanitarian rescue against the horror of having expanded opportunities for aggressive war. Dating back to Grotius, proponents of legalizing humanitarian intervention have struggled with the objection that their proposals would be abused as a pretext for war.3 The proponents * J. Sinclair Armstrong Assistant Professor of Foreign, International, and Comparative Law, Harvard Law School. This article benefited significantly from presentations at the Boalt Hall School of Law International Law Workshop, the University of Chicago International Law Workshop, the Georgetown University Law Center Inter- national Legal Theory Colloquium, and the University of Georgia International Law Colloquium. I owe special thanks to William Alford, David Barron, Donald Braman, James Cavallaro, Andrew Guzman, DerekJinks, Chris- tine Jolls, Beth Van Schaack, Henry Steiner, William Stuntz, and John Yoo. I thank Naomi Loewith, Brandon Miller, Bryan Seeley, and Stephan Sonnenberg for excellent research assistance. ' See UN Press Release SG/SM/7136 (Sept. 20, 1999) (Kofi Annan explaining that humanitarian intervention presents a core challenge to the Security Council and the United Nations as a whole in the next century); see also David J. Bederman, Globalization, International Law and United States Foreign Policy, 50 EMORY L.J. 717 (2001) (humanitarian interventions have ... become a central issue of the foreign policies of many nations, great powers and small nations alike). 2 A conventional definition of humanitarian intervention is the threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of the target state from wide- spread deprivations of internationally recognized human rights. SEAN D. MURPHY, HUMANITARIAN INTER- VENTION: THE UNITED NATIONS IN AN EVOLVING WORLD ORDER 11-12 (1996). The term unilateral humanitarian intervention commonly refers to the threat or use of force by one or more states acting without Secu- rity Council authorization. See Michael Byers & Simon Chesterman, Changing the Rules About Rules? Unilateral Humanitarian Intervention and the Future of International Law, in HUMANITARIAN INTERVENTION: ETHICAL, LEGAL AND POLITICAL'DIMENSIONS 177, 178 (J. L. Holzgrefe & Robert O. Keohane eds., 2003). 3 The legal doctrine ofhumanitarian intervention traces its roots to the treatise by the seventeenth-century Dutch jurist Hugo Grotius. Upon introducing the idea, Grotius tackled the prospect of its being abused as a pretext for war. 2 HUGO GROTIUS, DE JURE BELLI AC PACIS LIBRI TRES, ch. XXV, pt. VIII(4) (Carnegie ed., Francis W. Kelsey trans. 1925) (1625) (Hence, Seneca thinks that I may make war upon one who is not one of my people but oppresses his own.... a procedure which is often connected with the protection of innocent persons. We know, it is true, from both ancient and modern history, that the desire for what is another's seeks such pretexts as this for its own ends; but a right does not at once cease to exist in case it is to some extent abused by evil men. Pirates, also, sail the sea; arms are carried also by brigands.). Interestingly, eighteenth-century Swiss jurist Emer de Vattel took

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