Humanitarian Intervention, Colonialism, Islam and Democracy

An Analysis through the Human-Nonhuman Distinction

Gustavo Gozzi

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9780367478551
• eBook ISBN: 9781000375008
• Edition: 1
• Topic: History
• Subtopic: Middle Eastern History
• Index: History

This book offers a critical analysis of the European colonial heritage in the Arab countries and highlights the way this legacy is still with us today, informing the current state of relations between Europe and the formerly colonized states.

The work analyses the fraught relationship between the Western powers and the Arab countries that have been subject to their colonial rule. It does so by looking at this relationship from two vantage points. On the one hand is that of humanitarian intervention—a paradigm under which colonial rule coexisted alongside "humanitarian" policies pursued on the dual assumption that the colonized were "barbarous" peoples who wanted to be civilized and that the West could lay a claim of superiority over an inferior humanity. On the other hand is the Arab view, from which the humanitarian paradigm does not hold up, and which accordingly offers its own insights into the processes through which the Arab countries have sought to wrest themselves from colonial rule. In unpacking this analysis the book traces a history of international and colonial law, to this end also using the tools offered by the history of political thought.

The book will be of interest to students, academics, and researchers working in legal history, international law, international relations, the history of political thought, and colonial studies.

Part I

Intervening for humanity

1 The origins of humanitarian intervention

1.1 What legitimation for humanitarian intervention: A historical reconstruction

The doctrine of humanitarian intervention can be said to have had its first fully developed statement in the thought of Francisco de Vitoria (1483–1546). His works, considered to be among the classics of jus gentium, were rediscovered after World War I and are now being once more debated in the age of multiculturalism and of military intervention for the protection of human rights, and clearly outlined in these works is a paradigm that has shaped the history of jus gentium and its subsequent reformulation as international law.

This paradigm is built stepwise in Vitoria's De Indis insulanis relectio prior (1539), first framing the problem, then constructing a picture of relations among peoples, and finally systematically laying out the criteria on which basis humanitarian intervention can be justified. The problem Vitoria was tackling came into focus with the discovery of the New World, which in turn prompted the question of the nature of its native inhabitants.

The debate thus sparked by the “discovery” of New World peoples has been masterfully reconstructed by Tzvetan Todorov (1984), who traces its development from the denial of their humanity (Juan Ginés de Sepulveda) to a statement asserting their superiority (Bartolomé de las Casas). Vitoria, for his part, building on a foundation of Stoic philosophy, recognized the human nature of the Indios and argued that over their lands they exercised a coequal dominium with Christian peoples. From which it followed that they could not be deprived of their goods, as if they were not their true owners.¹

Not even the diversity of customs, as exemplified by the native practice of human sacrifice, could serve as grounds for authorizing an intervention against the Indios, or a “just war” against them, considering that their manifest cruelty was certainly no more brutal than the violence in which Christian peoples engaged in their own wars of religion.

1 “THE CONCLUSION OF ALL THAT HAS BEEN SAID,” writes Vitoria, “is that the barbarians undoubtedly possessed as true dominion, both public and private, as any Christians. That is to say, they could not be robbed of their property, either as private citizens or as princes, on the grounds that they were not true masters (ueri domini)” (Vitoria [1539] 1991, question 1 [On the Dominion of the Barbarians], § 23, Conclusion, pp. 250–51).

Through this paradigm, Vitoria thus took on the question of the grounds for intervening in the territories inhabited by the Indios. He systematically distinguished nonlegitimate grounds (tituli non legitimi) from legitimate ones and proceeded to lay out what the latter might be for the Spanish conquest of the New World. Thus, while on the one hand the diversity of customs, no matter how savage they might be, could not justify intervention, it was on the other hand argued to be legitimate to intervene in order to protect the lives of the innocent who were subject to such violence. To establish this legitimate ground, Vitoria looked to Scripture, where the imperative is found that the innocent are to be delivered from the infliction of death.²

This first paradigm addresses a question that can only improperly be called “humanitarian intervention”—an idea that, as we will see, does not fully take shape until the nineteenth century (Rougier 1910, 472). It is instead the idea of a “just war” that frames the problem at this early stage, and in Vitoria the argument is thus built by identifying certain “just causes” or legitimate grounds. It is in this way, by relying on the just causes built into this paradigm, that jus gentium sought to justify the West's colonization of New World peoples.

The historical transformations this paradigm would go through are essentially tied to the need to adapt its forms of legitimation to a variety of changing historical contexts. Thus in the history of jus gentium, a century after Vitoria set out his theses, his original paradigm was already secularized through and through. This can be appreciated in the work of Hugo Grotius, whose concern was with the problem of the limits that might be imposed on national sovereignty within the system of states, by this time fully established.

Grotius made an argument in favour of sovereignty, to this end relying on a theory of rights under which a right, understood as a power (facultas) over goods, can be distinguished as either private or public. A private facultas is one that individuals exercise over their own interests; a public facultas, by contrast, is exercised by the sovereign to protect the common good or welfare. Implicit in this distinction, according to Grotius, is the tenet of the superior status of sovereignty, and on this basis he also argues that no right of resistance exists against any exercise of sovereignty, even in the face of cruelty by a sovereign acting in violation of the common good.

But that conclusion, on this line of reasoning, only applies to the sovereign's own subjects. It does not make it illegitimate for a foreign sovereign to take up arms so as to put an end to persecutions which a sovereign prince carries out against his own people, thereby imperilling their lives (Grotius [1720] 2005, bk. II, chap. XXV, § VIII, 1159–62; orig. pub. 1625). Here, in De Jure Belli ac Pacis, Grotius looks not to Scripture but natural law. It is equally clear, however, that so-called just causes can be instrumental and can thus be invoked to advance hegemonic aims. In fact, they can conceal the deepest injustice within a system of states fundamentally driven by the pursuit of their own power.

2 Vitoria quotes the Book of Proverbs (24:11): “Deliver them that are drawn unto death, and forbear not to deliver those that are ready to be slain” (Vitoria [1539] 1991, question 3, article 5, § 15, p. 288).

It appears equally clear that different forms of legitimation are closely linked to the institutional configurations that define relations among peoples and states. Thus in Vitoria the criteria of “just war” find their foundation in the still premodern reality of the respublica christiana; in Grotius sovereignty instead finds its limits in the relations that make up the states-system, and newer criteria of legitimation would henceforth be established by reference to the institutional frameworks that would subsequently take shape.

Thus in the wake of World War I a new international order took shape with the creation of the League of Nations, which some observers saw as heralding a new system of relations among states. In the work of Georges Scelle, for example, the League of Nations was conceived as a federative system that had given birth to a suprastate social organization. In this new federative phenomenon, for Scelle, lay the foundation of possible intervention—military or humanitarian—whose legitimacy was to be found in the need to preserve the international suprastate order.³

From a historical perspective, then, there clearly emerges (however, much within the limits of this sketchy and perhaps even cursory reconstruction) that the criteria of legitimation are closely bound up with the forms of institutional organization that solidify among states. In Chapter 4, we will see how this relation of legitimacy unfolds in the modern reality. But there is a basic paradigm that over the course of time has consistently been used to assert the legitimacy of humanitarian interventions, and it is to the task of blocking out this paradigm that we now turn.

1.2 The theory of humanitarian intervention: Barbarous humanity and the civilization of European peoples

In a critical essay of the early twentieth century, the French jurist Antoine Rougier (1910, 473) observed that in the sources of international European law in the latter half of the nineteenth century, explicit reference was made to the “laws of humanity” (lois de l’humanité),⁴ which were set in contrast to the logic of “savage” and “partially civilized” peoples.

Thus, James Lorimer, a Scottish internationalist of the second half of the nineteenth century, proceeded on the basis of natural law to divide humanity into three concentric spheres—civilized (Europe and the states in the American continent that had gained their independence from the Europeans), barbarous (Turkey and the Asian states that had not become European dependencies), and savage (“the residue of mankind”)—to which three kinds of recognition would attach: “plenary political recognition,” “partial political recognition,” and “natural or mere human recognition,” respectively (Lorimer 1883, vol. I, bk. II, chap. II, p. 101–2). This, he took to be the foundation for the unequal treaties that were in effect between different states.

3 Scelle (1934, 31) wrote that the purpose of intervention was to maintain public international order and to secure the establishment of law, and paradigmatically this was the purpose of humanitarian intervention (intervention d’humanité).

4 The essay offers a broad and deep reconstruction of the theory of humanitarian intervention in the nineteenth century.

In states regarded as falling within the sphere of “barbarous humanity,” power could be wielded only by recourse to the force of arms. It was on the basis of this “argument from barbarousness” that European governments sought to legitimize their foreign policy positions. This was the argument that France, for example, used in the late nineteenth century to speak against an African sovereign's attempt to count human sacrifice as an institution sanctioned by the state, as well as against the torture to which a Moroccan sultan treated its political adversaries. These customs “appeared intolerable to the conscience of European peoples, who had been formed in the cult of morality and law” (Rougier 1910, 469; my translation). This is an assessment that Rougier offered without any sense of self-criticism. Which looks like an even greater moral failing if we consider that these comments were being made at a time when Western colonialism was at its zenith. Rougier went on to identify “not only a right but also a duty” to prevent such forms of barbarism, in that European peoples had committed to the “noble mission of bringing a germ of civilization to barbarous lands” (ibid.). In these words we have the constitutive elements of humanitarian intervention.

A state that acted contrary to the laws of humanity would be placed under international scrutiny, and this would in turn trigger a right of intervention on the part of any number of foreign states. At the same time, this paradigm supported a new conception of the international society as a hierarchy of powers entrusted with enforcing the principles of justice.

In the name of the international society, then, this doctrine recognized the right of one or more states to intervene in response to the sovereign acts of a foreign state that might violate the human rights of its own people. On this basis, an intervening state could request the annulment of sovereign acts subject to criticism or could work to prevent such acts from happening again in the future, or again it could take urgent precautionary measures designed to forestall any action the foreign government might take, all the while momentarily replacing the latter's sovereignty with its own (ibid., 472).

The humanitarian intervention that was beginning to come into form in the latter half of the nineteenth century looked rather different from the scenarios envisaged in the theories through which authors like Vitoria and Grotius sought to legitimize recourse to armed force by one state acting against the tyranny of another. Indeed, whereas these classic theorists of jus gentium rested their doctrines on a moral foundation, the new paradigm was essentially juridical in its makeup.

In the background of the idea of humanitarian intervention was mainly the so-called question of the East, for it was in response to the actions taken by the Ottoman government that international diplomacy was set in motion with the first uses of the doctrines based on this juridical paradigm. Indeed, among the grounds of legitimate humanitarian intervention was the notion of “reason of humanity” (raison d’humanité), which in the context of the 1860 Civil War in Syria (or Mount Lebanon Civil War) was invoked to justify the French expedition to help pacify that region (at the time an Ottoman province).

The French intervention continued by diplomatic action, an...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Contents
• A note on the criteria for transliterating the Arabic terms
• Introduction
• PART I Intervening for humanity
• PART II New democracies?
• Index