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In April 1917, Warren Harding, at the time a US Senator and later the twenty-ninth President of the United States, declared in a speech that eighteen years prior, the United States had ‘unsheathed the sword […] for the first time in the history of the world in the name of humanity’, and had thus given ‘proof to the world at the time of an unselfish nation’.1 Harding was referring to the American intervention in the Cuban struggle for independence from Spanish colonial rule, which eventually culminated in the Spanish–American War of 1898. In the preceding years, American public opinion had long been in favour of action against Spanish mis-rule, which had included brutal policies of ‘reconcentración’, the forced relocation of more than 400,000 people to the vicinity of the ports, and their internment in camps.2 The situation had eventually led to an intervention by the United States, declared in a resolution by Congress as the reaction to the ‘abhorrent’ conditions in Cuba, which had ‘shocked the moral sense of the people of the United States’ and had been considered ‘a disgrace to the Christian civilisation’.3 William McKinley, then President of the United States, had then told the world that it had been necessary ‘in the cause of humanity’ to put an end ‘to the barbarities, bloodshed, starvation and horrible miseries’ in Cuba: ‘It is no answer to say this is all in another country, belonging to another nation, and is therefore none of our business. It is our special duty, for it is right at our door’.4
On 26 July 1946, in court room 600 of the majestic ‘Palace of Justice’ (Justizpalast) in Nuremburg, Germany, Sir Hartley Shawcross (1902–2003), the British Chief prosecutor at the International Military Tribunal, presented his closing arguments on the 187th day in the case against the twenty-two high-ranking Nazi defendants, including Hermann Göring and Rudolf Hess. The British team had met with French professor René Cassin (1887–1976) in preparation for the landmark trial,1 and Shawcross’ speech had in large part been drafted by British law professor Hersch Lauterpacht, though he went off-script to include the charge of ‘genocide’, the term coined by Polish legal activist Raphael Lemkin (1900–1959).2 As the British case also covered the charges of ‘Crimes against Peace’, Shawcross’ arguments would have also touched upon the work of Soviet international law scholar Aron N. Trainin (1883–1957), author of ‘Hitlerite Responsibility under International Law’, a small pamphlet that apparently had been read by many in preparation for the trial in Nuremberg3 and which, uncharacteristically for Soviet discourse by the end of the war and after, was very explicit in its treatment of the Jewish identity of many of the victims of the Holocaust.4
The nineteenth century has been called the ‘heyday’ of ‘humanitarian intervention’,1 the time from the early nineteenth century through to the end of World War II an age of ‘imperial humanitarianism’.2 The period is revisited time and again to draw lessons for the present.3 Given this use of the past, for the purposes of a history of the legal instrument, the nineteenth century might be considered as the canvas of a picture of ‘humanitarian intervention’ painted in the twentieth century. While the distinct legal concept of ‘humanitarian intervention’ did evolve late in the nineteenth century, drawing on the evolution of international law from a form of natural law to its own specific legal system, the humanitarian and legal dimensions of the historic events claimed for this development were rather marginal. It is only in writing about the nineteenth century that these events have gained their significance for the history of a legal concept.
In 2014, when the Syrian Civil War was in its third year, an early episode of the successful American television series Madam Secretary revolved around events in the fictitious ‘Republic of West Africa’, where 50,000 innocent civilians faced a campaign of ethnic cleansing by their government. Convinced that it was America’s duty to help, the show’s main character, a woman named Elizabeth McCord (played by Téa Leoni) as the Secretary of State, in her first few weeks in office, faces an administration convinced that saving the lives of thousands of people in Africa is nothing that would be in the national interest of the United States of America. Over the course of this episode of Madam Secretary, the protagonists discuss the political and moral implications of a military intervention to stop a possible genocide taking place on their watch. But for a popular show engaging with national and international events, it is remarkably silent about the law on such international operations. While the situation is eventually resolved through a military operation by the African Union, an organisation arguably capable of engaging in legal military ‘humanitarian interventions’,1 this seems like a major gap in the storyline – the question of the legality of such operations under international law, particularly in light of the ongoing conflict in Syria and its rising death toll.
The war to end all wars destroyed the European order and its peculiar system of international law in which the theory of ‘humanitarian intervention’ had found its natural habitat. By the end of the nineteenth century, the expansion of the European empires had subjected the entire globe to one European system of international law, but by the end of World War I the European claim to moral superiority and ‘civilisation’ had been severely weakened by the horrors of war. The answer was, in the word of one of its architects, ‘a great experiment’: the League of Nations.1 The following decade has been variously considered as the hopeful beginning of an attempt to create an ‘improved stage in the history of humanity’;2 a political innovation aimed at the creation of peaceful existence under the rule of international law;3 and the ‘pathological inflation of the law’.4 The League of Nations represented an attempt to institute a new type of international order based on the international rule of law. Yet, rather than abandon the distinction between ‘civilised’ and ‘uncivilised’ nations, as some apparently feared,5 this ‘Move to Institutions’6 legitimised the European powers’ leading role as ‘civilisers’ through the Mandate System.7 Moreover, its founding treaty created the state of tension in which the League would have to operate – the commitment to both the principle of self-determination and the leading role of the ‘civilised’ states for the advancement of the law. In this spirit, the Covenant of the League of Nations and the treaties concluded in its context introduced a number of provisions for a number of states and regions that related to matters traditionally left to the ‘domaine reservé’ of ‘civilised’ states, and thus introduced local regimes of minority protection under the auspices of the League. Attempts to institutionalise a full system for the protection of minorities in all member states of the League failed, however, not least because France and the United Kingdom resisted. These powers were ‘determined to maintain control of over a minority-protection regime of which they were the principal authors’ and they were also ‘committed to making this determination known’.8
The question of 'humanitarian intervention' has been a staple of international law for around 200 years, with a renewed interest in the history of the subject emerging in the last twenty years. This book provides a chronological account of the evolution of the discussion and uncovers the fictional narrative provided by international lawyers to support their conclusions on the subject, from justifications and arguments for 'humanitarian intervention', the misrepresentation of great power involvement in the Greek War of Independence in 1827, to the 'humanitarian intervention that never was', India's war with Pakistan in 1971. Relying on a variety of sources, some of them made available in English for the first time, the book provides an undogmatic, alternative history of the fight for the protection of human rights in international law.
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