Legality, Morality, and the Dilemma of Humanitarian Intervention after Kosovo Nico Krisch * Full text available: PDF format ** Abstract The essay reviews five recent works on humanitarian intervention which shed new light on central questions of the debate. The authors, mainly international lawyers but also scholars of international relations, philosophy and sociology, mainly agree that in positive international law, even after Kosovo, no right to unilateral humanitarian intervention has emerged. Several, however, regard this situation as morally unsatisfactory and offer important proposals for the future development of international law, although they remain vague on some crucial issues. Their moral argument rests on the assumption that an order based on individual rights, rather than state sovereignty, would endorse humanitarian intervention. But it is doubtful that individuals would favour such a right, given historical experiences, and it also seems more appropriate to locate the conflict between human rights and peace, rather than between human rights and state sovereignty, with strong moral arguments supporting each side. Moreover, most proponents of unilateral humanitarian intervention neglect the value of institutions; they conclude a unilateral legal right directly from the moral argument. However, in domestic liberal theory institutions have long played a crucial role, and they deserve a similar role on the international level, as some of the contributions emphasize. Such institutions would allow for accommodation of diverging conceptions of morality, and Western states should, both for reasons of history and political theory, seek such accommodation rather than use their current power to impose their morality on the rest of the world. The conquest of the earth, which mostly means taking it away from those who have a different complexion or slightly flatter noses than ourselves, is not a pretty thing if you look into it too much. What redeems it is the idea only. An idea at the back of it; not a sentimental pretence but an idea; and an unselfish belief in the idea - something you can set up, and bow down before, and offer a sacrifice to.1 Few topics in international affairs have fascinated so many writers as the problem of humanitarian intervention, and indeed few are as dazzling as this. Discussions of the problem have always focused on fundamentals, and defenders of a right to intervene on humanitarian grounds have consistently laid claim to a higher morality than their opponents. Yet the history of humanitarian interventions is one of abuse, and the loss of blood incurred in its course draws into doubt this moral high ground. One need only recall how Alberico Gentili justified the Spanish conquest of the New World: I approve ... decidedly of the opinion of those who say that the cause of the Spaniards is just when they make war upon the Indians, who practised abominable lewdness even with beasts, and who ate human flesh, slaying men for that purpose. For such sins are contrary to human nature.2 Since these times, the discussion on the legality and desirability of interventions to counter atrocities has not diminished, and indeed it came again to the forefront of international attention during the Kosovo war in 1999. During and after the war, scholars of philosophy, of international relations and international law contributed to the public and academic debate in innumerable publications, five of which shall be reviewed in this essay. They all take different perspectives. Two of them, Simon Chesterman's Just War or Just Peace?3 and Christine Gray's International Law and the Use of Force,4 focus mainly on positive international law. But Gray's study, based to a large degree on the analysis of state practice, places the issue of humanitarian intervention into the broader framework of the law on the use of force which allows for insights into many parallels in other strands of this body of law. In contrast, Chesterman concentrates on humanitarian intervention as such (broadly defined), but often escapes the confines of state practice and offers broader reflections on the political impact and significance of legal developments. While both these works are quite critical towards humanitarian intervention, the others under review take a much more positive stance. Nikolaos Tsagourias, in Jurisprudence of International Law,5 approaches the issue from a jurisprudential angle. For most of his book, he merely describes different strands of thought in international law and their approach to humanitarian intervention. He eventually opts for a `discursive model of human dignity', which is based on critical reflections on international law, but, in its emphasis on human dignity, often comes close to tendencies of the New Haven School. In contrast, Nicholas Wheeler, in Saving Strangers,6 bases his analysis on a solidarist theory of international relations, contrasting it with pluralism's less favourable view of humanitarian intervention. From the perspective of political science, his thorough account of state practice in eight cases since 1945 seeks to reveal a fundamental change in the discourse on international relations, with a pluralist attitude replaced by more solidarist views since the end of the Cold War. Finally, in Der Kosovo-Krieg und das Völkerrecht (The Kosovo War and International Law),7 10 scholars of law, philosophy, political science and sociology at German universities present their views on the different layers of the discussion on humanitarian intervention, particularly with respect to the Kosovo war. Most of them argue on a very abstract, theoretical level - and most of them approve of humanitarian interventions in general, confining their criticism mainly to the way such interventions are conducted. In the framework of this essay, of course, I cannot do justice to all contributions to the volume, but will only mention some of their most characteristic arguments. * Visiting Senior Fellow, Center for International Studies, New York University School of Law; Postdoctoral Fellow, Max Planck Society for the Advancement of Science. I am grateful to Georg Nolte for comments on an earlier draft of this essay. ** The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems. 1 Joseph Conrad, Heart of Darkness.
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