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Humanitarian Intervention and Pretexts for War

  • Ryan Goodman (a1)

Extract

The legal status of humanitarian intervention poses a profound challenge to the future of global order. 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 significance 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) 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.

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1 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 widespread deprivations of internationally recognized human rights.” Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order 1112 (1996). The term “unilateral humanitarian intervention” commonly refers to the threat or use of force by one or more states acting without Security Council authorization. See Byers, Michael & Chesterman, Simon Changing the Rules About Rules? Unilateral Humanitarian Intervention and the Future of International Law, in Humanitarian Intervention: Ethical, Legal and Political Dimensions 177, 178 (Holzgrefe, J. L. & Robert, O. Keohane eds., 2003).

3 The legal doctrine of humanitarian 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 Llbri 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 Grotius to task specifically on the pretext issue. See Emer de, Vattel The Law of Nations bk. II, ch. i, §7 (Chitty, Joseph trans., 1879) (1758) (“What led [Grotius] into this error, was, his attributing to every independent man, and of course to every sovereign, an odd kind of right to punish faults which involve an enormous violation of the laws of nature, though they do not affect either his rights or his safety. . . . Could it escape Grotius, that, notwithstanding all the precautions added by him in the following paragraphs, his opinion opens a door to all the ravages of enthusiasm and fanaticism, and furnishes ambition with numberless pretexts?”). Those lines of debate continued into the nineteenth century. See, e.g., Rolin-Jaequemyns, G. Note sur la Théorie du Droit d’Intervention, 8 Revue de Droit International et de Législation Comparée 675, 679 (l876) (revisiting issue of pretext objection in Vattel’s response to Grotius).

4 See Brownlie, Ian International Law and the Use of Force by States 338 (1963) (explaining that “ [b]y the end of the nineteenth century the majority of publicists admitted that a right of humanitarian intervention (l’intervention d’humanité) existed”).

5 See generally Murphy, supra note 2; see also Mayall, James The Concept of Humanitarian Intervention Revisited, in Kosovo and the Challenge of Humanitarian Intervention: Selective Indignation, Collective Action, and International Citizenship 319 (Schnabel, Albrecht & Thakur, Ramesh eds., 2000).

6 See, e.g., Editorial Comments: NA TO’s Kosovo Intervention, 93 AJIL 824 (1999) (including essays by Jonathan, I. Charney Christine, M. Chinkin Richard, A. Falk Thomas, M. Franck Henkin, Louis W. Michael, Reisman and Wedgwood, Ruth); Simma, Bruno NA TO, the UN and the Use of Force: Legal Aspects, 10 Eur. J. Int’l L. 1 (1999); Cassese, Antonio Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community? id. at 23.

7 In the past five years, more than 133 states (representing approximately 80 percent of the world’s population) have issued individual or joint statements rejecting the legalization of UHI. See infra text accompanying note 26. The weight of academic opinion is also against it. Richard, B. Bilder Kosovo and the “New Interventionism “: Promise orPeril?9]. Transnat’lL. & Pol’y 153, 161 (1999) (“most scholars have rejected the claim that humanitarian intervention is a legitimate exception to the prohibition of the use of force in the UN Charter”); Anthony Clark Arend & Robert J. Beck, International Law and The Use of Force: Beyond the UN Charter Paradigm 131 (1993) (describing view of the “majority of scholars”); Schachter, Oscar The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1629 (1984) (“governments by and large (and most jurists) would not assert a right to forcible intervention to protect the nationals of another country from atrocities carried out in that country”).

8 Bilder, supra note 7, at 160 - 61 (“historically, claims of humanitarian intervention have typically served simply as a pretext for what are, in fact, selfish assertions of national interest, power, and greed”); see also id. at 166-67.

9 kBrownlie, Ian Humanitarian Intervention, in Law and Civil War in the Modern World 21728 (John, Norton Moore ed., 1974); Brownlie, Ian Thoughts on Kind-Hearted Gunmen, in Humanitarian Intervention and The United Nations 139, 14748 (Richard, B. Lillich ed., 1973) (“Whatever special cases one can point to, a rule allowing humanitarian intervention, as opposed to a discretion in the United Nations to act through the appropriate organs, is a general license to vigilantes and opportunists to resort to hegemonial intervention.”).

10 Thomas, M. Franck & Nigel, S. Rodley After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 AJIL 275, 304 (1973) (“ [A] law derived from the Bangladesh precedent is an unlimited fiat for larger states to oppress their smaller neighbors. . . . History shows that when the humanitarian justification has been invoked, it has mostly been under circumstances in which there is at least a strong suspicion that the facts and usually the motive, were not as alleged.”). Although Franck subsequently modified his position, he maintains that the use of force regime is not ready for a humanitarian exception due to the prospect of self-serving interpretations by intervening states. See Franck, Thomas Comments on Chapters 7 and 8, in United States Hegemony and the Foundations of International Law 264, 265, 267 (Byers, Michael & Nolte, Georg eds., 2003); Thomas, M. Franck Recourse to Force: State Action Against Threats and Armed Attacks 172, 18586 (2002); Thomas, M. Franck Interpretation and Change in the Law of Humanitarian Intervention, in Humanitarian Intervention: Ethical, Legal and Political Dimensions, supra note 2, at 204, 22931.

11 Henkin, Louis How Nations Behave: Law and Foreign Policy 14445 (2d ed. 1979) (“To me, these pressures eroding the prohibition on the use of force are deplorable, and arguments to legitimize the use of force in those circumstances are unpersuasive and dangerous. . . . ‘[HJumanitarian intervention’ can too readily be used as the occasion or pretext for aggression.”); see also Henkin, Louis Kosovo and the Law of Humanitarian Intervention, 93 AJIL 824 (1999).

12 Schachter, Oscar International Law in Theory and Practice 126 (1991) (“[I]t is highly undesirable to have a new rule allowing humanitarian intervention, for that could provide a pretext for abusive intervention.”).

13 Simma, supra note 6, at 5 (favorably quoting earlier British government’s view that “the scope for abusing such a right argues strongly against its creation” and questioning whether “recent or current instances of ‘military humanitarianism’ show themselves to be uninfected by the less laudable motives that characterized such actions in the past”).

14 Stromseth, Jane Rethinking Humanitarian Intervention: The Case for Incremental Change, in Humanitarian Intervention: Ethical, Legal and Political Dimensions, supra note 2, at 232, 257 (rejecting notion that “formal adoption of a legal doctrine of humanitarian intervention with specified criteria would lessen the prospect of unwarranted, pretextual interventions” and arguing that “ [e] stablishing an additional legal basis for resort to force, albeit with criteria attached, would provide another theory under which states determined to use force can seek to justify their actions”). Stromseth supports the gradual normative acceptance of UHI. However, she rejects proposals to codify or legally enshrine a right of UHI anytime soon.

15 See also Hans, Köchler Global Justice or Global Revenge?: International Criminal Justice at the Crossroads 313 (2003) (“in an environment in which no checks and balances exist to restrain the arbitrary use of power[,] ‘[h]umanitarian intervention’ has become one of the key terms to legitimize what otherwise would have to be called ‘act of aggression’ or ‘interference in internal affairs’“); Dlnstein, Yoram War, Aggression and Self-Defence 67 (2001) (“Commentators have drawn comparisons between ‘humanitarian intervention’ and medieval just war criteria. . . . As a rule, interventionists believe that they are pursuing a higher goal: ‘the ideal of justice backed by power.’ The trouble is that. . . there is too much room to abuse the law in the name of justice.”); Lobel, Jules & Ratner, Michael Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93 AJIL 124, 153 (1999) (arguing that “great powers can use humanitarian concerns to mask geopolitical interest”); Akehurst, Michael Humanitarian Intervention, in Intervention in World Politics 95, 111 (Bull, Hedley ed., 1984).

16 See,e.g, United Kingdom Foreign Office, Pol’y Doc. No. 148, reprinted in 1986 Brit. Y.B. Int’l L. 614,619 (“the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention . . . on prudential grounds, that the scope for abusing such a right argues strongly against its creation”); UN SCOR, 54th Sess., 4011th mtg. at 9, UN Doc. S/PV.4011 (June 10, 1999) (government of China arguing that UHI “promote[s] hegemonism under the pretext of human rights”); see also Schachter, supra note 7, at 1629 (“The reluctance of governments to legitimize foreign invasion in the interest of humanitarianism is understandable in the light of past abuses by powerful states. . . . Most governments are acutely sensitive to this danger and show no disposition to open article 2(4) up to a broad exception for humanitarian intervention . . . . “ ) .

17 Nicholas, J. Wheeler The Humanitarian Responsibilities of Sovereignty: Explaining the Development of a New Norm of Military Intervention for Humanitarian Purposes in International Society, in Humanitarian Intervention and International Relations 29, 42 (Jennifer, M. Welsh ed., 2004) (discussing concerns of the United States regarding pretext wars); Franck, supra note 10, at 170 (discussing concerns of the Netherlands regarding pretext wars); cf Chesterman, Simon Hard Cases Make Bad Law: Law, Ethics and Politics in Humanitarian Intervention, in Just Intervention 46, 50 (Anthony, F. Lang Jr. ed., 2003) (“Interestingly, despite the efforts by some legal scholars to argue for the existence of a right of humanitarian intervention, states themselves have continued to prove very reluctant to embrace such a right—even in defense of their own actions. . . . This reluctance appears to have stemmed in part from recognition that such a legal argument is dubious, but also that if any such right were embraced, it might well be used by other states in other situations.”); Cassese, Antonio A Follow-up: Forcible Humanitarian Countermeasures and Opinio Necessitatis, 10 Eur. J. Int’l L. 791, 79293 (1999) (discussing concerns of Germany and Belgium not to set “precedent” for UHI); Byers & Chesterman, supra note 2, at 198-200.

18 See, e.g., James, D. Fearon Domestic Political Audiences and the Escalation of International Disputes, 88 AM. Pol. Sci. Rev. 577 (1994); Russett, Bruce Grasping the Democratic Peace: Principles Fora Post-Cold War World (1993); T. Clifton, Morgan & Sally Howard, Campbell Domestic Structure, Decisional Constraints, and War: So Why Kant Democracies Fight? 35 J. Conflict Resol. 187 (1991); Maoz, Zeev & Abdolali, Nasrin Regime Types and International Conflict, 1816-1976, 33 J. Conflict Resol. 3 (1989); cf. Goodman, Ryan Review Essay: International Institutions and the Mechanisms of War, 99 AJIL 507 (2005) (reviewing John, Norton Moore Solving the War Puzzle: Beyond the Democratic Peace (2004)) (analyzing competing theoretical explanations of the democratic peace for the purpose of institutional design).

19 See, e.g., Roberts, Adam The So-Called “Right” of Humanitarian Intervention, p2001 Y.B. Int’l Humanitarian L. 3 ; Inst, Danish. Int’l Aff., Humanitarian Intervention: Legal and Political Aspects 7795 (1999), at <www.dupi.dk/www.dupi.dk/htdocs/enl 1240.ssi>; Tom, J. Farer An Inquiry into the Legitimacy of Humanitarian Intervention, in Law and Force in the New International Order 185 (Lori Fisler, Damrosch & David, J. Scheffer eds., 1991).

20 For one of the most persuasive arguments that UHI is lawful, see Greenwood, Christopher Humanitarian Intervention: The Case of Kosovo, 1999 Finnish Y.B. Int’l L. 141.

21 The Charter of The United Nations: A Commentary (Simma, Bruno ed., 2d ed. 2002).

22 See Definition of Aggression, GA Res. 3314 (XXIX) (Dec. 14, 1974); Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV) (Oct. 24, 1970);see also Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, GA Res. 36/103 (Dec. 9, 1981).

23 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, para. 268 (June 27) (“[W]hile the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect. . . . The Court concludes that the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States . . . . “ ) .

24 See, e.g., Cassese, Antonio International Law 37374 (2d ed. 2005) (summarizing the legal authority); Brownlie, Ian Principles of Public International Law 71012 (6th ed. 2003) (summarizing the legal authority); Malcolm, N. Shaw International Law 1046 (5th ed. 2003) (summarizing the legal authority); Malanczuk, Peter Akehurst’s Modern Introduction to International Law 221 (7th rev. ed. 1997) (summarizing the legal authority); cf Ryniker, Anne The ICRC’s Position on “Humanitarian Intervention” 83 Int’l Rev. Red Cross 527, 53031 (2001) (statement by legal adviser and deputy head of the Legal Division of the International Committee for the Red Cross); Indep. Int’l Comm’n on Kosovo, The Kosovo Report 16676 (2000).

25 See, e.g., Gray, Christine International Law and the Use of Force 99 (2d ed. 2004); Murphy, supra note 2, at 366; Stromseth, supra note 14, at 233; cf. Indep. Int’l Comm’n on Intervention and State Sovereignty, supra note 19, at 15-16, 47-51 (discussing emerging practice).

26 See, e.g., Declaration of the South Summit, Havana, Cuba, Apr. 10-14, 2000, para. 54, at <http://www.g77.org/Docs/Declaration_G77Summit.htm> (“We reject the so-called ‘right’ of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law.”); Movement of the Non-aligned Countries, XIII Ministerial Conference, Cartagena, Colombia, Apr. 8-9, 2000, Final Document, para. 263, at <www.nam.gov.za/xiiiminconf/index.html> (“We reject the so-called ‘right’ of humanitarian intervention, which has no legal basis in the UN Charter or in the general principles of international law.”).

27 Secretary-General’s High-Level Panel on Threats, Challenges and Change, A More Secure World: Ourshared Responsibility 6566 (2004); cf Michael, J. Glennon Idealism at the U.N.: The High-Level Panel’s High-Minded Errors, 129 Pol’y Rev. 3 (2005) (criticizing panel’s conclusions regarding Security Council authorization to stop genocide and similar atrocities).

28 Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All at 33, UN Doc. A/59/2005 (2005).

29 Cf. James, Alan The Concept of Sovereignty Revisited, in Kosovo and the Challenge of Humanitarian Intervention, supra note 5, at 334, 342-43 (suggesting Kosovo conflict will not significantly alter legal norms against intervention).

30 Oscar Schachter made this distinction plain:

[A] State or group of States using force to put an end to atrocities when the necessity is evident and the humanitarian intention is clear is likely to have its action pardoned. But, I believe it is highly undesirable to have a new rule allowing humanitarian intervention, for that could provide a pretext for abusive intervention. It would be better to acquiesce in a violation that is considered necessary and desirable in the particular circumstances than to adopt a principle that would open a wide gap in the barrier against unilateral use of force.

Schachter, supra note 12, at 126.

31 Bartram, S. Brown Humanitarian Intervention at a Crossroads, 41 Wm. & Mary L. Rev. 1683, 1727 (2000) (“Perhaps the most compelling argument against recognizing a right of humanitarian intervention is that it might be used as a pretext for military intervention actually motivated by other, less noble, objectives.”).

32 Kritsiotis, Dino Reappraising Policy Objections to Humanitarian Intervention, 19 Mlch.J.Int’l L. 1005, 1020 (1998) (“The most common criticism leveled at the right of humanitarian intervention is that its incorporation into the system of the law of nations would enhance the opportunities for the abusive use of force, the long-term effect of which would be to bring the international normative system into disrepute.”).

33 See W. Michael, Reisman Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention, 11 Eur. J. Int’l L. 3, 16 (2000) (describing pretext concerns as “the primary juridical objection” to legalizing UHI).

34 See, e.g., Yoder, Amos World Politics and The Causes of War Since 1914, at 58 (1986).

35 Letter from Reich Chancellor Hitler to Prime Minister Chamberlain (Sept. 23, 1938), in The Crisis in Czechoslovakia, April 24-October 13, 1938, 19 Int’l Conciliation 433, 433𲀓35 (1938). Hitler also rallied a base of domestic support for his initial military expansions by asserting that foreign governments were flagrantly violating the right of self-determination of German nationals. Extracts from Speech by Chancellor Adolf Hitler at the National Socialist Party Congress at Nuremberg, Germany (September 12, 1938), in id. at 411, 412.

36 Using the Third Reich as an example also raises questions about whether the empirical patterns will vary by regime type. For a description of those aspects of the relevant studies, see infra text accompanying notes 115-18 (discussing expectations of constraining effects on nondemocracies, democracies with significant political cartelization, and democracies with weak political cartelization).

37 The term “revisionist state” is widely used in social scientific studies of war. Here, the term refers to a state that is dissatisfied with status quo conditions prior to the onset of a militarized interstate dispute and that seeks to overturn those conditions through the threat or use of force. See Daniel, M. Jones Stuart, A. Bremer & J. David, Singer Militarized Interstate Disputes, 1816-1992: Rationale, Coding Rules, and Empirical Patterns, 15 Conflict Mgmt. & Peace Sci. 163, 178 (1996).

38 See, e.g., Brett Ashley, Leeds Alliance Reliability in Times of War: Explaining State Decisions to Violate Treaties, 57 Int’l Org. 801 (2003); Kenneth, A. Schultz Tying Hands and Washing Hands: The U.S. Congress and Multilateral Humanitarian Intervention, in Locating The Proper Authorities: The Interaction of Domestic and International Institutions (Daniel, W. Dreznered., 2003); Beth, A. Simmons Capacity, Commitment, and Compliance: International Institutions and Territorial Disputes, 46 J. Conflict Resol. 829 (2002); William, J. Dixon Third-Party Techniques for Preventing Conflict Escalation and Promoting Peaceful Settlement, 50 Int’l Org. 653 (1996); Herbert, K. Tillema & John, R. Van Wingen Law and Power in Military Intervention: Major States After World War II, 226 Int’l Stud. Q. 220 (1982).

39 [Author’s Note: Article 51 of the UN Charter requires that measures taken by states in exercise of the right of self-defense must be “immediately reported” to the Security Council. In Nicaragua, the Court held that failure to “report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence.” Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, para. 200 (June 27).]

40 Gray, supra note 25, at 99.

41 Franck, supra note 10, at 53-108; see also Martha Finnemore, the Purpose of Intervention: Changing Beliefs About the Use of Force (2003) (analyzing professed normative justifications for use of force over time); id. at 15 (“Every intervention leaves a long trail of justification in its wake . . . . When states justify their interventions, they draw on and articulate shared values and expectations that other decision makers and other publics in other states hold. Justification is literally an attempt to connect one’s actions with standards of justice or, perhaps more generically, with standards of appropriate and acceptable behavior.”).

42 Richard Ned, Lebow Between Peace and War: The Nature of International Crisis 23 (1981).

43 Id. at 29.

44 Id. at 34 (emphasis added).

45 Schachter, supra note 12, at 110 (“ [I] n virtually every case the use of force is sought to be justified by reference to the accepted Charter rules. . . . [T]he felt need to issue a legal justification . . . demonstrates that States require a basis of legitimacy to justify their actions to their own citizens and even more to other States whose cooperation or acquiescence is desired.”); Finnemore, supra note 41, at 18,21 (describing relationship between justifying intervention through rational-legal authority and anticipation of acceptance by other states and domestic publics), 149 (“[A] consistent finding of the cases is that the use of force has increasingly been shaped by Weberian rational-legal authority structures—international organizations and international law in particular. States’ decision making about when force is desirable and effective increasingly takes place within the context of multilateral institutions and is justified by appeals to international law, to mandates for multilateral institutions, or to both.”).

46 In his famous insider’s account of the Cuban missile crisis, Abram Chayes describes “the felt need for justification” that led the U.S. government to appeal to international legal institutions. Abram Chayes, the Cuban Missile Crisis: International Crises and the Role of Law (1974); cf. Schachter, supra note 12, at 110 (discussing “the felt need to issue a legal justification” exhibited by states when resorting to force). Another valuable insider’s account also emphasizes the felt need for legal justification, as experienced by Security Council members during the height of the Iraq-Kuwait crisis. Koskenniemi, Martti The Place of Law in Collective Security, 17 Mich. J. Int’l L. 455, 47778 (1996). Chayes, in particular, not only identified the experiential need for justification, but also analyzed domestic ramifications that can result from appealing to international legal institutions. The pretext model fails partly because it does not adequately consider ramifications on domestic processes of action.

47 This relationship might be modeled as a two-level game. Robert, D. Putnam Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427 (1988).

48 John, A. Vasquez The War Puzzle 199 (1993).

49 Dixon, supra note 38, at 656.

50 Vasquez, supra note 48, at 42.

51 See, e.g., Brownlie, supra note 24, at 21-22.

52 Jack, S. Levy On the Evolution of Militarized Interstate Conflicts, in The Process of War: Advancing the Scientific Study of War 219, 22122 (Stuart, A. Bremer & Thomas, R. Cusack eds., 1995) (discussing general patterns of state practice in the period after 1816); Lebow, supra note 42, at 26.

53 The term “MID” is commonly used in the empirical study of war. An MID involves a conflict short of war that includes a threat, overt display, or use of force. Jones et al., supra note 37, at 168 (“The term ‘militarized interstate dispute’ refers to united historical cases in which the threat, display or use of military force short of war by one member state is explicitly directed towards the government, official representatives, official forces, property, or territory of another state.”).

54 Vasquez, supra note 48, at 155.

55 Id. at 153-97.

56 Stuart, A. Bremer Advancing the Scientific Study of War, in The Process of War, supra note 52, at 1, 12 (“ [T]he genesis and evolution of militarized interstate conflict can be better represented by a process model because the transition from peace to war . . . is a multistage procedure in which the sequence of events and choices plays a critical role.”).

57 Dixon, supra note 38, at 656 (“Thinking of conflict as a dynamic process that unfolds through a series of stages directs attention to transitions between stages and, in particular, to the question of why only some interstate disputes escalate to the point of military resolution.”).

58 See supra note 53.

59 J. David, Singer The Etiology of Interstate War: A Natural History Approach, in What Do We Know About War? 3, 1920 (John, A. Vasquez ed., 2000).

60 Paul, F. Diehl What Are They Fighting for? The Importance of Issues in International Conflict Research, 29 J. Peace Res. 333, 337 (1992); Richard, W. Mansbach & John, A. Vasquez in Search of Theory: A New Paradigm for Global Politics (1981) (proposing an issue-based paradigm to study interstate conflict).

61 Paul, R. Hensel Theory and Evidence on Geography and Conflict, in What Do We Know About War? supra note 59, at 57, 69 .

62 See, e.g., id.; Carment, David & James, Patrick Internal Constraints and Interstate Ethnic Conflict: Toward a Crisis- Based Assessment of Irredentism, 39 J. Conflict Resol. 82 (1995). While our discussion concerns the origins of war, it is noteworthy that, once at war, states tend to incur higher battle deaths when particular issues are at stake. See Paul, D. Senese Geographical Proximity and Issue Salience: Their Effects on the Escalation of Militarized Interstate Conflict, in A Road Map to War: Territorial Dimensions of International Conflict 147 (Paul, F. Diehl ed., 1999); Hensel, supra note 61, at 73-74.

63 See infra text accompanying notes 94-95.

64 John, A. Vasquez The Probability of War, 1816—1992, Presidential Address to the International Studies Association, 48 Int’l Stud. Q. 1, 23 (2004); Vasquez, supra note 48; cf Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int’l Org. 1 (1992) (discussing studies demonstrating effect of international regimes in empowering groups with specialized knowledge, and the influence that those groups exert on institutional processes and policy). For an important insider’s account by a former U.S. assistant secretary of state for democracy, human rights, and labor, see Shattuck, John Freedom on Fire: Human Rights Wars and America’s Response 164 (2003) (“Holbrooke understood that Bosnia was a human rights war, and he supported my participation in the new American-led drive for peace when others sought to exclude me.”).

65 The Correlates of War (COW) dataset is used extensively in political science. See, e.g., <www.correlatesofwar.org/COW_bibliographic_essay.htm> (“In research reported in fifteen . . . journals that focus on quantitative international politics, COW was the most frequently cited data project in the period 1974 to 1986; COW accounted for thirty-one percent of the citations of the eight leading data projects. Furthermore, in a survey conducted in 1984 among one hundred and sixty-one specialists in international and comparative political research, thirty-nine percent found COW at the top of the list of currently archived data sets that ‘should be designated national data resources for maintenance, improvement, and expansion.’“); Meredith Reid, Sarkees Frank Whelon, Wayman & J. David, Singer Inter-state, Intra-state, and Extra-state Wars: A Comprehensive Look at Their Distribution over Time, 1816-1997, 47 Int’l Stud. Q. 49, 49 (2003) (“For more than three decades the [COW] Project’s database has served the research needs of most of die quantitative world politics community, especially in identifying and trying to account for several classes of war. . . throughout die international system since 1816.”).

66 Vasquez, John & Christopher, S. Leskiw The Origins and War Proneness of Interstate Rivalries, 4 Ann. Rev. Pol. Sci. 295, 298 (2001) (describing “consolidated shift” toward using dyadic analysis within origin-of-war studies); Daniel, S. Geller & J. David, Singer Nations at War: A Scientific Study of International Conflict 22-24, 68 (1998) (describing theoretical importance of dyadic analysis); see also Stuart, A. Bremer Dangerous Dyads: Conditions Affecting the Likelihood of Interstate War, 1816-1965, 36 J. Conflict Resol. 309 (1992). Notably, two-party conflicts represent the vast majority of all militarized interstate disputes in the past two centuries. See Geller & Singer, supra at 22.

67 Jones et al., supra note 37, at 178.

68 Vasquez, supra note 64, at 10.

69 Cf John, A. Tures Expanding the Issue Correlates of War (ICOW) Project: Regime-Based Claims, Disputes, and Means of Settlement, 1816-1996 (1998) (paper presented at the annual meeting of the International Studies Association, Minneapolis, MN), at <http://garnet.acns.fsu.edu/~phensel/Research/tures98a.pdf>) (discussing more comprehensively the coding methods and measurements for humanitarian interventions and other regime-based conflicts for the ICOW database).

70 The next closest cognate for humanitarian intervention is the foreign policy category. Indeed, researchers coded the Kosovo conflict primarily as a foreign policy MID with regime/government issues included in later phases of the hostilities. Those coding decisions may reflect that in building support for, and threatening the use of, force, NATO members articulated a rationale based on regional stability and alliance credibility. Notably, in many respects, the distinction between foreign policy MIDs and regime MIDs may not result in a significant empirical difference. As discussed below, the two classes of cases generally exhibit similar empirical patterns of escalation with respect to the issues explored in this article. Indeed, some studies merge regime and foreign policy MIDs into a comparison category for territorial MIDs. See supra note 61; infra note 78. This article relies on the available evidence to make empirically grounded theoretical claims. A research project that specifically measured humanitarian-based MIDs would allow these theoretical claims to be tested. The ICOW database promises to soon offer the means for conducting such analyses. SeeTuizs, supra note 69, at 17; see also ICOW project description, at <http://garnet.acns. fsu.edu/~phensel/icow.html>.

71 Vasquez, John & Marie, T. Henehan Territorial Disputes and the Probability of War, 1816-1992, 38 J. Peace Res. 123, 125 (2001) (“Each dispute is coded in terms of the revision a disputant is trying to bring about.”).

72 According to the COW coding procedures, a revisionist state must “openly attempt!] to challenge the pre-dispute condition” by expressly raising one of the three claims before the initiation of an MID. See Jones et al., supra note 37, at 178; cf Paul, D. Senese & John, A. Vasquez A Unified Explanation of Territorial Conflict: Testing the Impact of Sampling Bias, 1919-1992, 47 Int’l Stud. Q. 275, 287 (2003) (“Coding of the substantive content of the revisionist claims are based on objectives stated before the initiation of the MID. . . . In terms of territorial disputes, . . . explicit claims to territory [must have] preceded the MID. The same is true for regime changes . . . .”). Notably, as discussed below, pretextual claims can also become internalized as true motivations. See infra subsection on the politics of justification.

73 In this article, I use the best available systematic analyses to analyze the pretext objection. These studies are not specifically tailored, however, to the pretext model. Accordingly, inferences drawn from their findings remain speculative. Another task for the academy is to test empirically the pretext model and its specific propositions. One goal of this article is to identify lines of inquiry worth pursuing further.

74 John, A. Vasquez Reexamining the Steps to War: New Evidence and Theoretical Insights, in 2 Handbook of War Studies 371, 38587 (Manus, I. Midlarsky ed., 2000); Hensel, supra note 61, at 65-66.

75 Senese & Vasquez, supra note 72, at 292-93. The regime and foreign policy MIDs are clustered so closely together that the range of the former (measured by a 90 percent confidence interval) completely overlaps the latter. See id. at 293.

76 Id. at 28 5; see also id. (“This indicates that a research design that looks only at whether the current MID escalates into war is a misspecified test. It cannot be overemphasized that a properly specified test requires a window of opportunity; otherwise important patterns might be suppressed.”); cf. Paul, D. Senese & John, A. Vasquez Assessing the Steps to War, 35 Brit. J. Pol. Sci. 607, 616 (2005) (explaining that “use of five-year window (or sometimes longer) has a long history in the field”). The authors also conduct an analysis to determine whether individual MIDs escalate into war with no five-year window. While the results are consistent with the authors’ theoretical conclusion that territorial MIDs are significantly more war prone than regime or foreign policy MIDs, the results demonstrate a wider gap between regime and foreign policy MIDs. Specifically, with no five-year window, 19.6 percent of territorial, .025 percent of regime, and .004 percent of foreign policy MIDs escalate into war. The difference between regime and foreign policy MIDs, however, is arguably less important when one considers that the lower confidence bound of regime MIDs (.009) is the same as the higher confidence bound of foreign policy MIDs (.009).

77 Vasquez & Henehan, supra note 71, at 123.

78 Id. at 131; cf. Paul, R. Hensel Chartinga Course to Conflict: Territorial Issues and Interstate Conflict, 1816—1992, in A Road Map to War, supra note 62, at 115, available at <http://garnet.acns.fsu.edu/~phensel/Research/chart98.pdf> (using aggregated dispute rather than dyadic model, but finding that “the odds of escalation into war over three times higher for disputes involving territorial issues than for disputes over other types of disputes”) (in subsequent citations to article, page numbers refer to online version); see also Paul, D. Senese Territory, Contiguity, and International Conflict: Assessing a New Joint Explanation, 49 AM. J. Pol. Sci. 769 (2005) (tbls. 1 b, 2, & 3) (finding that territorial MIDs, between both contiguous states and noncontiguous states, were significantly more likely to escalate into war than nonterritorial MIDs).

79 In disputes between two major states, territorial disputes show a much higher probability of escalating into war (.42), which is well above the base probability of war (.246). Foreign policy disputes (.177) are nontrivially higher than regime disputes (.056). Vasquez & Henehan, supra note 71, at 135. All variables are statistically significant.

80 In disputes between major and minor states, territorial disputes again show a much higher probability of escalating into war (.478), which is still well above the base probability of war (.206). Regime disputes (.122) are higher than foreign policy disputes (.091)—but only marginally so. Id. at 135. All variables are statistically significant.

81 In disputes between two minor states, territorial disputes retain the highest probability of escalating into war (.235)—again, well above the base probability (. 147). Here, regime disputes (. 133) are nontrivially higher than foreign policy disputes (.05). Id. However, the regime variable lacks statistical significance.

82 See Hensel, supra note 78, at 25. Hensel finds that these results persist when different types of resolutions to the initial MID—stalemate, decisive victory, or compromise—are taken into account. Id. at 26-27. Compromise outcomes, however, are not statistically significant. Id. at 27.

83 Id. at 26.

84 This part of the study examines a particular pattern—that is, when an issue-specific MID is followed by an alliance and then another MID, regardless of type. Vasquez explains that” [p]osing the pattern this way assures that alliance making [one of the common steps to war] is connected with involvement in MIDs.” See Vasquez, supra note 64, at 21.

85 Id. All three variables are statistically significant in this analysis. The same pattern of disparities between the different MIDs holds when independent variables for arms races and enduring rivalries are added. When these additional variables are included, regime MIDs are still less likely to escalate into war (.686) than foreign policy (1.127) or territorial MIDs (1.533). Id. With the variables for arms races and enduring rivalries included, however, the variable for regime MIDs is no longer statistically significant.

86 See, e.g., Goertz, Gary & Paul, F. Diehl Territorial Changes and International Politics (1992) (discussing competing schools of thought); Charles, S. Gochman & Russell, J. Leng Realpolitik and the Road to War: An Analysis of Attributes and Behavior, 27 Int’l Stud. Q. 97, 100 (1983) (making realist assumption with respect to territory within, and contiguous to, national borders of a state).

87 See, e.g., Paul, K. Huth Standing Your Ground: Territorial Disputes and International Conflict (1996). Moreover, retaining expansive territorial possessions may impose costs on developing countries, many of which find it difficult to maintain security and administrative control over vast geographic areas. Cf Holsti, K. J. Peace and War: Armed Conflicts and International Order, 1648-1989, at 309 (1991); Goertz & Diehl, supra note 86, at 20.

88 See, e.g., Huth, supra note 87, at 94, 188.

89 See, e.g., id. at 82-84, 110-11; cf. Errol, A. Henderson Culture or Contiguity: Ethnic Conflict, the Similarity of States, and the Onset of War, 1820-1989, 41 J. Conflict Resol. 649 (1997).

90 See, e.g., Huth, supra note 87, at 182-83.

91 Senese & Vasquez, supra note 72, at 277; Vasquez, supra note 48, at 151-52.

92 Hensel, supra note 78, at 4; Paul, K. Huth Why Are Territorial Disputes Between States a Central Cause of International Conflict? in What Do We Know About War? supra note 59, at 85, 100 ; Newman, David Real Spaces, Symbolic Spaces: Interrelated Notions of Territory in the Arab-Israeli Conflict, in A Road Map to War, supra note 62, at 3, 16.

93 Hensel, supra note 78, at 4 (citation omitted).

94 See, e.g., Huth, supra note 87, at 183 (“Domestic politics would often lead foreign policy leaders to maintain adversarial relations and to consider the option of diplomatic and military escalation, while calculations of relative military strength and assessments of strategic opportunities as well as constraints would either reinforce or moderate those incentives to act forcefully.”); Vasquez, supra note 74, at 389 (describing studies that show “the main reason disputes recur is that domestic hard-liners, usually for ethnic nationalist reasons, will not let decision makers compromise or defuse issues . . . even when one side faces strong international constraints against doing so”) (citing A. BikashRoy, Intervention Across Bisecting Borders, 34 J. Peace Res. 303 (1997)); Huth, supra note 92, at 100.

95 Simmons, supra note 38.

96 Snyder, Jack Myths of Empire: Domestic Politics and International Ambition 41 (1991); Stephen, Van Evera Causes of War, at 400 (1984) (Ph.D. Dissertation, University of California, Berkeley) (on file with author); cf. Stephen Van, Evera Primed for Peace: Europe After the Cold War, 15 Int’l Security, Winter 1990-1991, at 7, 22.

97 Greg, J. Rasmussen Aggression or Humanitarian Intervention: International Rules and the Domestic Politics of Threat Perception (1998) (paper presented at the annual meeting of the International Studies Association, Minneapolis, MN), at <www.ciaonet.org/conf/rag01>.

98 Charles, A. Kupchan The Vulnerability of Empire 87 (1994).

99 Goldgeier, J. M. & Tetlock, P. E. Psychology and International Relations Theory, 4 Ann. Rev. Pol. Sci. 67 (2001); Jack, S. Levy Loss Aversion, Framing and Bargaining: The Implications of Prospect Theory for International Conflict, 17 Int’l Pol. Sci. Rev. 179 (1996); Jervis, Robert Perception and Mlsperception in International Politics (1976); cf Geller & Singer, supra note 66, at 33-40.

100 Cf Snyder, supra note 96, at 31 (distinguishing cognition-based explanations from beliefs “bound up with the social order, the political balance of power within it, its legitimation, and the justification of policies favored by particular social groups”).

101 Cf. Lebow, supra note 42, at 29, 34-35 (discussing states’ employing justifications that conform to internationally accepted standards); supra text accompanying notes 39-45.

102 Andrew, P. Cortell & James, W. Davis How Do International Institutions Matter? The Domestic Impact of International Rules and Norms, 40 Int’l Stud. Q. 451, 471 (1996).

103 Id. at 464-71.

104 Id. at 466.

105 Id. at 465.

106 Id. at 469.

107 See Snyder, supra note 96, at 314 (“In some cases ideology was so integral to the political process that it played a central role in determining what the individual ‘interest groups’ wanted. . . . Sometimes ideological dynamics merely exaggerated the outcome of interest group logrolling and made it harder to reverse. But in other instances ideological blowback outlived the political circumstances that gave rise to the strategic ideologies. In this case, without reference to ideology there is no explanation at all.”); see also id. at 63. ,

108 Id. at 310; see also id. at 41-42 (discussing blowback effects from justifications associated with a moral mission).

109 Id. at 154, 165-74.

110 See, e .g, id. at 179-80 (“But if Palmerston himself could distinguish between rhetoric and reality, many of his supporters could not, and sometimes he felt constrained to act on his rhetoric. Palmerston’s letters to Britain’s peace negotiators continually remind them that ‘the eyes and thoughts of all England are fixed on this negotiation’ and constantly trying to stiffen them against concessions.”).

111 Id. at 75-80, 84-91.

112 See, e.g., id. at 102 (“ [M] any participants in the logrolling had fully internalized the myths of empire and consequently were unable to recognize that the big stick policies were failing. This was especially true of the Protestant, urban, upwardly mobile professionals, who voted for the fleet for ideological reasons . . . and were appalled by what they saw as the criminally weak stance of the German government during the Moroccan crisis.”) (citing Chickering, Roger We Men Who Feel Most German: A Cultural Study of The Pan-German League, 1886-1914, at 26166 (1984); Eley, Geoff Reshaping the German Right: Radical Nationalism and Political Change After Bismarck (1990)), 104 (“Though the elites helped shape mass preferences, they found they could not limit the mass passions they had unleashed, especially when newly emerging elite groups found they could use nationalist arguments to flog the more cautious old elites.”).

113 See, e.g., Kupchan, supra note 98, at 9, 23 (“To rally domestic support for extraordinary policies, decision makers propagate specific strategic conceptions. But by selling powerful strategic images to the polity—molding public opinion and reshaping the roles and missions of the broader decision-making community—elites unwittingly entrap themselves in a strategic culture that later prevents them from reorienting grand strategy and avoiding self-defeating behavior.”), 87-102; Stephen Van Evera, Why Cooperation Failed in 1914, 38 World Pol. 80, 83-99 (1985); Van Evera, supra note 96, at 18-20.

114 Kupchan, supra note 98, at 130-84, 213-67 (discussing British and French cooperative strategies in the European theater preceding World War II).

115 Reiter, Dan & Allan, C. Stam Democracies at War 2325 (2002); Goemans, H. E. War and Punishment: The Causes of War Termination and The First World War (2000); Goemans, H. E. Fighting for Survival: The Fate of Leaders and the Duration of War, 44 J. Conflict Resol. 555 (2000). Notably, the researchers borrow from Snyder’s framework. Reiter & Stam, supra, at 24; Goemans, supra, at 559.

116 Snyder, supra note 96, at 308 - 11; cf. Cortell & Davis, supra note 102, at 45 5 (organizing theoretical expectations according to regime types). Snyder concludes that democracies with weaker cartelization also succumb to blowback effects. Snyder, supra note 96, at 309 -10. Although Snyder suggests that media freedom and open public debate should help to diminish those effects, id. at 310, a recent case study of the present Iraq conflict casts doubt on the strength of such democratic checks, see Kaufmann, Chaim Threat Inflation and the Failure of the Marketplace of Ideas: The Selling of the Iraq War, 29 Int’l Security 5 (2004). Snyder postulates that individual dictatorships will succumb to blowback effects when the top leadership internalizes strategic myths. Snyder, supra note 96, at 18,309.

117 Snyder, supra note 96, at 35-37; cf. Reiter & Stam, supra note 115, at 24-25 (“The reason that mixed regimes are most vulnerable is that their oligarchic system of governance makes them especially susceptible to logrolling coalitions. . . . Such systems are also more likely to fall prey to imperial mythmaking that makes expansion seem falsely appealing.”).

118 SNYDER, supra note 96, at 17, 31, 312-14.

119 Id at 17, 41-42.

120 Lebow, supra note 42, at 153-54, 293.

121 Id. at 154.

122 Rasmussen, supra note 97; Snyder, supra note 96.

123 Kupchan, supra note 98, at 92.

124 Id. at 492-93.

125 This process is especially relevant in considering the effects of a permissive rule for humanitarian intervention. Indeed, the pretext objection—concern that states will use a humanitarian exception to justify aggressive wars— implicitly relies on this understanding of the politics of persuasion.

126 Rosecrance, Richard Overextension, Vulnerability, and Conflict: The “Goldilocks Problem “ in International Strategy, 19 Int’l Security 145, 149 (1995) (review essay).

127 As I discuss below, this line of argument—that some paths to war will not be averted—would also discredit the pretext objection as a reason to reject legalizing UHI. See infra text accompanying note 134.

128 Jack, S. Levy The Causes of War and the Conditions of Peace, 1 Ann. Rev. Pol. Sci. 139, 15157 (1998) (discussing the literature on “societal-level” explanations, especially including diversionary (such as scapegoating) theories of war).

129 See, e.g., Holsti, supra note 87, at 271-84.

130 See, e.g., Snyder, supra note 96, at 76, 306 (“The very structure of these ideas suggests they were ex post facto justifications for policy and elements of a strategic ideology rather than mere beliefs or perceptions. In many cases the concepts underlying the policy of security through expansion came close to self-contradiction.”).

131 Huth, supra note 92, at 100.

132 Id. at 101 (citations omitted).

133 Senese & Vasquez, supra note 72, at 277-78 (citations omitted).

134 Indeed, the same may be said for the skeptic’s argument above. See supra text accompanying note 127.

135 Also recall that even if an interstate rivalry is dominated by other issues, whether a lone incident concerns a territorial, foreign policy, or regime issue may significantly affect the maintenance of peace between the rivals. See supra text accompanying notes 84-85.

136 Diehl, supra note 60, at 338; Michael, D. McGinnis Issue Linkage and the Evolution of International Cooperation, 30 J. Conflict Resol. 141 (1986); cf. Mansbach & Vasquez, supra note 60, at 200-01.

137 T. Clifton, Morgan Issue Linkages in International Crisis Bargaining, 34 Am. J. Pol. Sci. 311, 322-33,329(1990).

138 Paul, K. Huth Deterrence and International Conflict: Empirical Findings and Theoretical Debates, 2 Ann. Rev. Pol. Sci. 25, 38 (1999).

139 Huth, supra note 87, at 190-91.

140 Jean-Marc, Coicaud Solidarity Versus Geostrategy: Kosovo and the Dilemmas of International Democratic Culture, in osovo and the Challenge of Humanitarian Intervention, supra note 5, at 463, 469.

141 Nicholas, J. Wheeler Saving Strangers: Humanitarian Intervention in International Society 265 (2000).

142 See, e.g., Brownlie, Ian “International Law and the Use of Force by States” Revisited, 1 Chinese J. Int’l L. 1, 11 (2002); Abdullahi, A. An-Na’im NATO on Kosovo Is Bad for Human Rights, 17 Neth. Q. Hum. Rts. 229, 22930 (1999); Chomsky, Noam The New Military Humanism: Lessons From Kosovo (1999); cf. Coicaud, supra note 140, at 470-74.

143 See, e.g., Roberts, Adam NATO’s “Humanitarian War” over Kosovo, 41 Survival 102, 111 (1999).

144 Ivo, H. Daalder & Michael, E. O’Hanlon Winning Ugly: Nato’s War to Save Kosovo 138-39, 155-61 (2000); Mufson, Steven NATO Battles Fraying Alliance, Refugees’ Needs, Wash. Post., May 21, 1999, at A28 ; cf. Wesley, K. Clark Waging Modern War: Bosnia, Kosovo, and the Future of Combat 34647 (2001).

145 Clark, supra note 144, at 356-57; Perlez, Jane Clinton’s Quandary: No Approach to End War Is Fast or Certain of Success, N.Y. Times, Apr. 29, 1999, at Al 6; Mufson, supra note 144, at A28; cf. David, P. Auerswald Explaining Wars of Choice: An Integrated Decision Model of NATO Policy in Kosovo, 48 Int’l Stud. Q. 631, 65153 (2004).

146 Michael Mandelbaum poignantly identified significant concessions on the part of NATO members:

[T]he terms on which the bombing ended. . . included important departures from Rambouillet that amount to concessions to the Serbs. The United Nations received ultimate authority for Kosovo, giving Russia, a country friendly to the Serbs, the power of veto. The Rambouillet document had called for a referendum after three years to decide Kosovo’s ultimate status, which would certainly have produced a large majority for independence; the terms on which the war ended made no mention of a referendum. And whereas Rambouillet gave NATO forces unimpeded access to all of Yugoslavia, including Serbia, the June settlement allowed the alliance free rein only in Kosovo.

. . . .

[W]hen the war ended, the political question at its heart remained unsettled. That question concerned the proper principle for determining sovereignty.

Mandelbaum, Michael A Perfect Failure: NA TO’s War against Yugoslavia, Foreign Aff., Sept/Oct. 1999, at 2, 45 ; cf. William, G. O’Neill Kosovo: An Unfinished Peace 2831 (2002).

147 See, e.g., Daalder & O’Hanlon, supra note 144, at 192-94.

148 Huth, supra note 87, at 190-91.

149 Huth, supra note 138, at 38.

150 While I proceed with a discussion of the 2003 Iraq war, it deserves emphasis that one data point— one anecdote— would not independently suffice to discredit a systematic analysis of general tendencies and aggregate patterns.

151 Kaufmann, supra note 116, at 5; cf. Jack Snyder, Imperial Temptations, 71 Nat’l Int. 29 (2003).

152 Kaufmann, supra note 116, at 9-29.

153 See, e.g., id. at 9-13, 30-32.

154 Cf. Ronald, R. Krebs Correspondence: Selling the Market Short? The Marketplace of Ideas and the Iraq War, 29 Int’l. Security 196, 20001 (2005).

155 See supra pp. 128-29.

156 Tom, J. Farer The Prospect for International Law and Order in the Wake of Iraq, 97 AJIL 621, 626 (2003) (“[I]n Kosovo . . . one could plausibly argue that NATO’s attack was responsive to a genuine humanitarian emergency. In Iraq human rights violations were chronic and at the time of the invasion less severe than at various other moments in recent Iraqi history. In no instance in recent history has an intervention been widely perceived as humanitarian where the supposedly triggering violations were chronic”).

157 U.S. Dep’t of Defense News Transcript, Deputy Secretary Wolfowitz Interview with Tannenhaus, Sam Vanity Fair (May 9, 2003), at <http://www.defenselink.mil/transcripts/2003/tr20030509-depsecdeft)223.html>.

158 Sean, D. Murphy Assessing the Legality of ‘Invading Iraq, 92 Geo. L.J. 173, 240 (2004).

159 Rodger, A. Payne Deliberating Preventative War: The Strange Case of Iraq’s Disappearing Nuclear Threat (2005) (paper presented at Ridgway Center, Working Group on Preventive and Preemptive Military Intervention, University of Pittsburgh), at <http://www.ridgway.pitt.edu/docs/working_papers/Payne.pdf> (“The primary rationale for the U.S. attack on Iraq was Saddam Hussein’s alleged nuclear, chemical and biological weapons stockpiles and programs. Iraq’s suspected connections to international terrorism also played an important role in justifying U.S. action. The attack was not sold as a humanitarian or democratizing mission, however; the war was not sold because Hussein was a horrible tyrant.”).

160 Analyzing public opinion data, Kaufmann notes that a small fraction of the public favored invading Iraq to protect or liberate the Iraqi people. Kaufman does not indicate whether these individuals also supported the war on independent grounds (for example, to preempt Iraq’s use of WMDs). If they did, their numbers would have been even less consequential. Kaufmann, supra note 116, at 31 (“The few polls that asked respondents whether they would favor invading Iraq for objectives such as saving the Iraqi people from Hussein, promoting democracy, or safeguarding oil showed only small minorities in favor.”).

161 Id. at 30.

162 Id. at 31.

163 See, for example, the survey conducted on behalf of the Pew Research Center for the People & the Press (March 20-22, 2003), at <http://www.pollingreport.com/iraq2.htm>.

164 Kaufmann, supra note 116, at 31.

165 Kaufmann, Chaim Correspondence: Selling the Market Short? The Marketplace of Ideas and the Iraq War, 29 Int’l. Security 202, 206 (2005).

166 Chandler, David Rhetoric Without Responsibility: The Attraction of “Ethical” Foreign Policy, 5 Brit. J. Pol. & Int’l Rel. 295, 300 (2003) (describing difficulty for governments in creating “an ‘ethical’ interventionist agenda” in the case of Iraq, since “[t]he British and US publics have never been as enthusiastic as their governments in pursuing conflict with Saddam Hussein. . . . For example, in July 2002 when George W. Bush and Tony Blair prepared the public for a possible military conquest of Iraq, polls showed that only a small, and declining, majority of American people were in favour.”).

167 Memorandum from Lord Goldsmith to Prime Minister Tony Blair, Iraq: Resolution 1441, para. 4 (Mar. 7, 2003), at <http://news.bbc.co.Uk/l/shared/bsp/hi/pdfs/28_04_05_attorney_general.pdf>.

168 Thomas, M. Franck What Happens Now? The United Nations After Iraq, 97 AJIL 607, 61417 (2003).

169 Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security, Dec. 10,1999, Art. 25; Constitutive Act of the African Union, July 11, 2000, Art. 4(h), OAU Doc. CAB/ LEG/23.15, available at <www.au2002.gov.za/docs/key_oau/au_act.pdf>;cf. Franck, supra note 168, at 614-15 (suggesting that developments such as the Constitutive Act of the African Union and interpretive practices of principal UN Charter organs can potentially revise customary use-of-force rules while maintaining integrity of overall system); Farer, supra note 156, at 621, 625-26 (suggesting that deviancy that is more closely tethered to existing multilateral institutions is less disruptive).

170 See, e.g., Inst, Danish. Int’l Aff., supra note 19, at 11120 (discussing various “legal-political strategies on humanitarian intervention”).

171 A full evaluation would also have to compare such second-order effects of legal change against the existing baseline: the impact of ongoing practices on use-of-force prohibitions. The Independent International Commission on Kosovo report, supra note 24, at 186, suggested that UHI is, at least in some circles, currently considered “illegal, yet legitimate.” One would have to weigh the extent to which that continuing discrepancy erodes the use-of-force regime. See id. (“Allowing this gap between legality and legitimacy to persist. . . seriously erodes the prohibition on the use of force that the World Court and other authorities have deemed valid. Closely related to this effect, recourse to force without proper UN authorization tends to weaken the authority of, and respect for, the United Nations, especially the [Security Council], in the domain of international peace and security.”). Additionally, if states are discouraged from rescuing victims of mass atrocities due to the existing legal rules, the use-of-force regime may suffer greater disrespect than a system permitting UHI. Cf. id. (“It needs to be observed . . . that a failure to act on behalf of the Kosovars, or a repetition of the Bosnian or Rwandan experience of an insufficient UN mandate and capabilities, would have also weakened the United Nations, probably to a greater degree.”).

172 See supra text accompanying note 134

173 See supra text accompanying note 47.

174 See, e.g., Finnemore, supra note 41; supra note 45 (discussing “felt need for justification” despite national security threats).

175 See Hensel, supra note 61, at 6 4 - 6 5 (providing dataset as of 1992); Ghosn, Faten & Bennett, Scott Codebook for the Dyadic Militarized Interstate Dispute Data, Version 3.0, at 1 (Oct. 10, 2003), at <http://cow2.la.psu.edu> (providing dataset as of 2001 and noting that approximately three hundred MIDs occurred from 1993 to 2001).

176 As Martha Finnemore explains, “[e]very intervention leaves a long trail of justification in its wake.” Finnemore, supra note 41, at 15. And as Oscar Schachter noted, “in virtually every case the use of force is sought to be justified by reference to the accepted Charter rules.” Schachter, supra note 12, at 110. See also Gray, supra note 25, at 27 (“with only a tiny number of exceptions [states] take care to offer a legal argument for their use of force”); supra text accompanying notes 39-45.

177 Paul, R. Hensel Contentious Issues and World Politics, 45 Int’l Stud. Q. 81 (2001); Senese & Vasquez, supra note 72, at 289-90; Vasquez, supra note 74, at 389-90.

178 Senese & Vasquez, supra note 72, at 289—90 (discussing findings across three issue areas and disproving selection bias); see also Senese, supra note 78, tbls. la, 2, & 3 (finding that territorial disputes, between both contiguous states and noncontiguous states, were significantly more likely than nonterritorial disputes to culminate in MIDs).

179 See Vasquez, supra note 74, at 389-90 (discussing Michael Brecher & Jonathan Wilkenfeld, A Study of Crisis (1997)).

180 See Hensel, supra note 78, at 25.

181 Id. at 26.

182 See, e.g., Senese, supra note78,at9 (studying 1919-1995); Senese & Vasquez, supra note 72, at 289 (studying 1919-1992); Vasquez & Henehan, supra note 71, at 128 (studying 1816-1992); Hensel, supra note 78, at 13 (studying 1816-1992); Senese & Vasquez, supra note 76, at 615 (studying 1816-1992); Vasquez, supra note 64, at 14-22 (studying 1816-1992); see also Hensel, supra note 61, at 64 - 66 (studying 1816-1992).

183 See, e.g., Sencse & Vasquez, supra note 76, at 622-31 (comparing 1816-1945 and 1946-1992); Vasquez & Henehan, supra note 7l, at 134 (comparing 1816-1945 and 946-1992); see also Hensel, supra note 61, at 64 -66 (comparing 1816-1945 and 1946-1992).

184 In particular, “the odds of war escalation are 3.25 times higher for territorial disputes than for policy disputes and 77 times higher than . . . for regime disputes.” Senese & Vasquez, supra note 76, at 622.

185 Id. at 628.

186 Vasquez & Henehan, supra note 71, at 134 (finding that prior to 1946, territorial MIDs exhibit a statistically significant, higher probability of going to war (.475) than foreign policy (.168) and regime (.149) MIDs).

187 See Stromseth, supra note 14, at 262-67; Danish Inst. Int’l Affairs, supra note 19, at 105-06.

* 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 International 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, Derek Jinks, Christine 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.

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