National liberation, national renaissance, the restoration of nationhood to the people, commonwealth: whatever may be the headings used or the new formulas introduced, decolonization is always a violent phenomenon.Footnote 1
1. Introduction
When Jörg Kammerhofer invited me to examine the debate on the use of force ‘from the periphery’, both in the geographical sense and outside the mainstream discourse, my initial reaction was, past the ego boost, that of ambivalence. On the one hand, I was happy that the Leiden Journal of International Law would provide space and visibility to explore the debate from alternative (i.e., non-mainstream, non-Western, non-male) sources. On the other hand, I felt uneasy with the idea that I could look at the issue from a well-defined – and thus circumscribable – critical angle. The problems that this presumption raises have already been explained,Footnote 2 and I do not wish to repeat them. Let me simply state that I have mixed feelings about participating in the debate as a peripheral voice (and not just as a plain international lawyer), not least because I cannot and do not want to speak in the name of the Third World.Footnote 3 Yet I feel sympathetic to many of the concerns and aspirations associated with people living in the margins. At the end of the day, I accepted Jörg's invitation, hoping to make use of this opportunity and to ensure that issues relevant to the ‘global South’ will not be overlooked.
In order to do so, I first need to dispel the impression that peripheral legal voices have been silent on matters related to the use of force. The situation is, in fact, quite the opposite: an abundant critical and Third World literature has emerged over the last 20 years, and this at an increased pace after the military interventions in Kosovo, Afghanistan, and Iraq.Footnote 4 This literature, while united by common themes, is rich in its complexity and diversity. What is striking therefore is not the silence of peripheral voices but the fact that their contributions do not stand in the foreground. This, in turn, raises questions of institutional resources and highlights the politics of knowledge production and dissemination: who publishes what? How do we identify what counts as acceptable scholarship in the field of international law?Footnote 5
In this article, I will attempt both to extract and to extrapolate on some of the fundamental insights provided by critical and Third World scholars on the use of force. My main objective will be to show that their views are not well captured by the mainstream debate. Critical and Third World scholars share a much more ambivalent position vis-à-vis the possibilities to use force than what is allowed by the debate. While being keenly aware that military force has been used over and over again to the detriment of Third World peoples, they keep in mind that emancipatory struggles may well require forcible action. This became an established principle in international law in the 1960s, mainly through the work of newly independent states at the UN General Assembly. Since the 1980s, however, the pendulum has swung: institutional power has moved to the UN Security Council; a so-called ‘war on terror’ is being lodged against non-state actors; expansive forms of international rule (or Western rule) are now being subsumed under the concept of ‘responsibility to protect’.
My argument is that this shift – together with the changing political stakes – is central to a post-colonial reading of the law on the use of force. Yet it is uneasily articulable in a debate framed as an opposition between a restrictivist and an expansionist camp. To explain this, I will proceed in three steps. First, I will make some remarks on the structure and vocabulary adopted in the Symposium. I want to make explicit that which is implied by the restrictivist–expansionist terminology. Second, I will explain why critical and TWAIL scholars, while being sympathetic to the restrictivist camp, cannot stay permanently within it. Their position can best be described as that of an insider-outsider. Third, I will offer an alternative reading of the evolution of the law on the use of force. The focus will be set on another debate, which can be traced back to the 1960s–1980s, which took place largely within the UN, and which had a very different, Third World dynamics, not caught by the mainstream debate. Through this displacement, I hope to unsettle the distinction between ‘mainstream’ and ‘periphery’, and to show that the mainstream debate is actually peripheral to the question of violence.
2. The politics of naming
Participants to the Symposium were invited to study the fluctuations of the scholarship on the use of force, which has been divided between two opposite camps. One camp reunites the restrictivists, who defend a narrow view of the exceptions to the prohibition on the use of force. The other camp houses the expansionists, who put forth extensive interpretations of the possibilities to use force. I find it striking that the other contributors took those categories for granted, and applied them as if they genuinely represented the state of the discipline on the use of force. I find it striking because we all know that categories are not neutral analytical tools, insofar as they come from somewhere and serve a specific function. The restrictive/expansive categories can be traced back to the work of Jörg Kammerhofer and Olivier Corten – two international lawyers who, while analysing the shifts and flux in contemporary scholarship, have defended a restrictive view of the exceptions to use force.Footnote 6
I am not suggesting that we should disregard the restrictive/expansive categories on the ground that they are part of a larger endeavour. My point is rather that we should be aware of the larger framework and understand what is implied by the vocabulary. As soon as we use the terms ‘restrictivists’ and ‘expansionists’, the debate on the law on the use of force is set in a certain way, with its own protagonists. The vocabulary tells a story in itself: the story is about the restrictivists, acting in self-restraint and doing their best to ‘hold on’ to the law against the growing ranks of the expansionists, the latter being ‘eager’ to broaden the definition of self-defence and to reject the centralisation of the use of force within the UN.
Historians have long made the point that ‘we need to treat our normative concepts less as statements about the world than as tools and weapons of ideological debate’.Footnote 7 In our case, the restrictive/expansive vocabulary competes with other vocabularies or categorisations, such as the division between ‘bright-liners’ and ‘balancers’ coined by Matthew Waxman in a recent edition of the European Journal.Footnote 8 The restrictive/expansive vocabulary is presented as a more nuanced, less ideological – and thus as a more scientific – description of the legal scholarship on the use of force.Footnote 9 Which categorisation will take precedence is still a matter of struggle. Hence the publication by the Leiden Journal of International Law of a Symposium that uses the restrictive/expansive vocabulary is not an innocent proposition but a move in an argument. This is surely one matter that would be flagged by critical and Third World scholars.
3. The view of an insider-outsider
It has become clear, I hope, that my contribution does not pretend to stand outside the debate on the use of force. What unites critical, feminists, and TWAIL scholars is the attempt to engage with the arguments put forth by both sides, while maintaining a critical distance vis-à-vis them. This is close to what Makau Mutua calls the ‘view of an insider-outsider’.Footnote 10
On the one hand, the restrictivists have reasons to be concerned about the expansive interpretations of the exceptions to the prohibition to use force. The advent of the ‘war on terror’ has triggered a shift from debating anticipatory to pre-emptive self-defence.Footnote 11 What was previously contentious has become increasingly accepted, mostly (but not exclusively) by American scholars, as falling within the scope of Article 51 or as part of customary law. In addition, one often hears that the respect of state sovereignty and the centralization of the use of force in the hands of the UN Security Council should give way in situations where those principles hamper the defence of human rights or democratic governance.Footnote 12
Against such arguments, critical and TWAIL scholars have unequivocally denounced the US's imperial ambitions and its disengagement with international law.Footnote 13 Many have pleaded for the preservation of the UN system and for a strict interpretation of the right to self-defence enshrined in Article 51. ‘A UN that is transformed to accommodate pre-emption doctrine will simply become a vehicle for [US] imperialism, and Third World countries have not been slow to recognize this reality’, wrote Antony Anghie.Footnote 14 Likewise, James Thuo Gathii has expressed a renewed confidence in the UN against unilateral intervention: ‘institutions like the UN have come to represent the aspirations of the most vulnerable populations around the world’.Footnote 15
On the other hand, it is hard to remain permanently within the restrictivist camp on matters related to the use of force. There are at least three reasons for that: one is structural; another is institutional, and the last is historical. The first points to the fundamental indeterminacy of the legal debate on the use of force; the second underscores the dark sides of institutional multilateralism and in particular of the UN; the third juxtaposes both (restrictivist and expansionist) lines of argumentation with colonial practices. I will elaborate on each of them. My point is that taken together, these three elements offer an explanation as to why the concerns of the peripheries do not fit well within the mainstream debate.
3.1 The debate's structural indeterminacy
It is difficult to take a final stand in the restrictivist/expansionist debate given the indeterminacy of the debate itself.Footnote 16 Both sides use ‘descending’ and ‘ascending’Footnote 17 patterns of justification in a way that renders them (structurally) indistinguishable from one another, and that induces them to adopt (unsatisfying) middle-ground positions. Let me take as an example the case of pre-emptive self-defence against terrorist threats by non-state actors.
Restrictivists take as a ‘point of reference’Footnote 18 the relevant treaty texts, and more specifically Article 2(4) and Article 51 of the UN Charter. They construct a narrow understanding of the exceptions to use force, notably with the help of ICJ decisions that have upheld a ‘textually-oriented’Footnote 19 interpretation of the relevant provisions.Footnote 20 This descending argument is visible in the World Summit Outcome 2005, which recommended a strict adherence to Charter terms.Footnote 21 The problem with this position is that it is vulnerable to the critique of utopia, as it can hardly be justified by reference to what actually exists in the world. Taking the US-led invasion of Iraq as a dramatic illustration, Thomas Franck has argued that the widespread resort to the use of force is strong evidence about the inefficacy of the prohibition of the use of force.Footnote 22 How do restrictivists answer that critique? They accept that rules may evolve to match social changes, but they insist that such normative evolution be based upon extensive – and not selective – practice involving the most varied groups of states. Any alteration to the rules on the use of force ‘require[s] the support of most, if not all, states, as expressed through their active or passive support’.Footnote 23 This allows them to say that there is no uniform state practice and opinio juris showing that we would have moved away from a restrictive analysis of Article 51 to a broader interpretation that would accommodate anti-terrorist force. From the expansionist perspective, however, this ascending argument is unsatisfactory. For it is inconceivable to draw no difference among states: surely what matters is the practice of those states with the effective capacities to ensure world peace.Footnote 24
Expansionists start by emphasizing the need to adapt the law to the necessities of social life. The 9/11 terrorist attacks on the US have inaugurated a ‘different era of political violence’Footnote 25 in such a way as to justify the retrenchment of international legal rules.Footnote 26 Because of the new threats, a proper understanding of the right of self-defence should now extend to authorizing pre-emptive attacks against potential aggressors, cutting them off before they are able to launch their strikes.Footnote 27 From the restrictivist perspective, the problem is that this position deprives international law of its distinctive character, which is normative. While rules can indeed be affected by social necessities, this fact alone does not entail an abolition of the distinction between normative aspiration and actual behaviour. ‘Otherwise, international law would be all “apology” – its rules would merely mirror state action and lose all critical distance’.Footnote 28 The expansionists typically respond to this critique by insisting on the (legal) processes through which the desired results can be reached. For them, the process by which the right of self-defence is interpreted is more important than the substance of the rule itself.Footnote 29 It follows that the 2003 war against Iraq would have been legal so long as the US would have persuaded other countries of the necessity of its actions.Footnote 30 From the restrictivist perspective, however, this line of argumentation is unconvincing. For the military action against Iraq was precisely the object of disagreement within the authoritative international decision-making process (i.e., the UN Security Council).Footnote 31
To summarize, restrictivists highlight the enduring normative character of the prohibition on the use of force (descending argument) before assessing the limitations to that prohibition (ascending argument). Expansionists stress the necessity of pre-emptive military action in today's world (ascending argument) before looking at the conditions for its deployment (descending argument). The structure of the debate is such that both positions can be criticized; in the end, both sides recognize the existence of ‘grey zones’Footnote 32 in the field and contrive to examine, on a case-by-case basis, whether the use of force can be justified under the principles of necessity and proportionality.Footnote 33 This is the pragmatic ground on which both sides seem to defer: the law on the use of force boils down to an ad hoc analysis of the opportunity to deploy force.Footnote 34 But this does not end the debate, as it begs two questions: how should we assess the necessity and proportionality of a forcible action, and who is competent to make such assessment? A division between restrictivists and expansionists re-emerges:Footnote 35 whereas restrictivists search for a ‘universal inter-subjective’Footnote 36 interpretation of the law on the use of force through hermeneutics, expansionists tend to explore the pros and cons of military interventions through economically-inspired doctrines – the most extreme one being rational choice theory.Footnote 37
3.2 The dark sides of UN multilateralism
Leaving structural indeterminacy aside, there is another reason why it is difficult to agree altogether with the restrictivists. Their positions often imply that international legal institutions – and especially the UN – are good, and that what they lack are the effective capacities of enforcement to circumvent the political machinations of powerful states. In this sense, the debate rests on an implicit dichotomy between international law and institutions (which would be anti-imperial by nature), and the (imperialist) ‘Bush doctrine’.Footnote 38 Needless to say, this dichotomy is over-simplistic.Footnote 39 The relationship between international law and imperialism is much more intricate and pervasive than what the dichotomy suggests.Footnote 40
In an article published in this Journal in 2003, Susan Marks suggested that there are at least three ways to envisage the relationship between ‘empire’ on the one hand and international law and institutions on the other.Footnote 41 The most common way is to equate ‘empire’ with the nineteenth century system of European colonialism, and international law with the theory of self-determination. Even though the legitimation of colonial conquest was a defining project of international law, so are we told, at least since the 1960s international law has set its face against colonialism; in particular, international institutions such as the UN have adopted resolutions and created committees to achieve decolonisation. Under this narrative, international law and institutions are set against the empire. The second way to understand ‘empire’ is in terms of the current geopolitical status occupied by the United States as the world's hegemon.Footnote 42 Here, international law and institutions are the empire's opponent as well as the object that the empire has trampled. The third sense of the term ‘empire’ – the one that Marks prefers – is less idiomatic among international lawyers. It can be found in critical sociological work that draws inspiration from the Marxist concept of imperialism. In Michael Hardt's and Antonio Negri's eponymous book, for instance, ‘empire’ refers to the political order that is emerging in connection with the processes of economic globalization.Footnote 43 What matters for my purposes is that, as Marks puts it,
as soon as ‘empire’ is used to refer to the political order associated with contemporary globalization, it becomes clear that, far from international law and institutions being against empire, or empire being against them, empire and international law and institutions are for one another.Footnote 44
By contrast to the other two, the third narrative stresses that international law and institutions are implicated in the constitution and reproduction of ‘empire’ understood as the new world order. In the debate on the use of force, the third narrative is relevant in at least two ways.
First, it reminds us that the choice is not simply between healthy multilateralism (UN) and fearful unilateralism (US). ‘Contemporary international legal regimes are not principally about choosing between acting as lawless empire or pre-committing oneself to multilateral co-operation’.Footnote 45 For TWAIL scholars, the point is that multilateralism can be just as brutal and imperialist as unilateralism. This has been shown by China Miéville through his detailed analysis of the UN intervention in Haiti, where the 2004 coup and occupation have served to maximize profit of major players.Footnote 46 For Miéville, part of the problem is that the multilateral UN-backed nature of the intervention made it legally uncontroversial, to the point of near-invisibility, in mainstream scholarship.Footnote 47 In a similar vein, David Kennedy has argued that the way the discussion on the opportunity to intervene in Iraq in 2003 was limited to obtaining a UN Security Council authorisation made it more difficult to address the motives for a war and to devise alternatives.Footnote 48 Instead of asking ourselves whether a Security Council authorisation was secured, we should have assessed the reasons for intervening militarily.
The second insight offered by the third narrative is that one cannot simply counterpoise American imperialism with European universalism. It has been tempting to compare the 2003 Iraq war with the 1999 NATO air strikes in Kosovo, and to suggest that the Kosovo campaign was somehow fundamentally distinct from the Iraq invasion in terms of its international legitimacy.Footnote 49 Yet this comparison is problematic, as it vehicles the image of ‘old Europe’ as a post-historical entity sitting above inter-state struggles, promoting human rights and the rule of law, and devoid of imperial ambitions.Footnote 50 In other words, we cannot hope to circumvent the expansive reading of the exceptions to use force by suggesting that Europe (as the ‘law's helper’Footnote 51) only reluctantly carries on forcible action whereas the US unashamedly does so.
3.3 The ‘war on terror’ as a repetition of the colonial experience
Criticising UN multilateralism does not mean rallying with the expansionists. There are also important difficulties with their lines of argumentation. James Thuo Gathii has vigorously criticized John Yoo's plea in favour of unilateral interventions in failed States, by pointing to the hubris of knowledge (and, therewith, implicit moralism) found in Yoo's cost-benefit analysis.Footnote 52 These difficulties become even clearer when we look at the expansive readings of the exceptions to use force in a historical perspective, in light of the colonial experience.
The expansionist position on pre-emptive self-defence is premised on the idea that the novel threat of global terror calls for radical changes to international law. In other words, the argument that pre-emption is necessary or legal is based on the idea that the challenges confronting states are unprecedented, and require a profound revision of international law. As several TWAIL scholars have noted, this claim to ‘newness’Footnote 53 relies on a highly selective and Eurocentric historical reading of ‘global terror’. This is achieved through a definition of terrorism that excludes ‘the histories of the colonial wars of terror’,Footnote 54 that is to say, the historical violence that was inflicted upon the non-European world in the colonial period.Footnote 55
Antony Anghie has also argued that the legal structure of the ‘war on terror’ can be traced back to the early colonial idea of the ‘civilizing mission’.Footnote 56 This structural similarity is due to the fact that the doctrine of pre-emptive self-defence comes with the notion of ‘rogue states’. It is argued that the threat generating the need for pre-emption is not caused by all states. Rather it is caused by a small number of irresponsible, terrorist-supporting states that either threaten the world by their existence or that are incapable of properly controlling their populations that dwell within them.Footnote 57 For hard-core expansionists, rogue states are not only dispossessed of the right to intervene pre-emptively, but they are also the target for such interventions, given their role in promoting terrorism. For Anghie, this doctrine is an almost direct reproduction of the colonial international law of the nineteenth century. Back then, civilized states were full members of the ‘Family of Nations’ and thus possessed the right to wage war, whereas uncivilized states existed only as objects to be acted upon.Footnote 58
The analogy between nineteenth century colonial international law and the Bush doctrine goes further. Since rogue states are the source of instability within the international order, a mere intervention with military force will prove insufficient. What is needed is to transform rogue states into liberal, democratic and stable states. ‘It is for this reason that the rhetoric of the war on terror has always been accompanied by arguments for regime change and the promotion of democracy and human rights’.Footnote 59 Here is where the continuity with the colonial experience is obvious. It is not simply that violence can be used against rogue and failed (‘uncivilized’) states, but also that this violence should be used in order to transform them into modern and democratic (‘civilized’) states. As such, the war on terror ‘represents a set of principles and policies that reproduces the structure of the civilizing mission’.Footnote 60
4. The impulse to historicize
As the last section suggested, one of the most important contributions of critical and TWAIL scholars to the debate on the use of force is the impulse to historicize. This goes beyond the demonstration of the debate's structural indeterminacy. A post-colonial analysis may also differ from the demonstration of the colonial origins of the rules on the use of force. What I suggest to do is to narrate the evolution of the international legal regime regulating the use of force since the time of decolonisation.Footnote 61 This contrasts with the mainstream tendency to take 1989 as the ‘starting point’Footnote 62 to explain the latest controversies in jus ad bellum.
This brings me to the quote with which I started this article, which is an extract from Franz Fanon's Wretched of the Earth. Fanon wrote this book during the Algerian war (in which he was actively involved), a few months before his death. In writing it, Fanon was concerned with two questions: what are the necessary conditions for the success of decolonization? And when can we tell that the situation is ripe for the movement of national liberation?Footnote 63 The assertiveness of his claim – decolonization is always a violent phenomenon – was intended to elicit the urgency and implication of decolonization, which could not be a peaceful process. For Fanon, a peaceful decolonisation would simply mean the transposition of the norms of colonialism; it would mean the return of the same under a different form.Footnote 64
That violence is necessary to achieve decolonization is, in international law, a claim that came to the foreground during the ‘Bandung era’.Footnote 65 In 1964, the Asian-African Legal Consultative Committee (as it was then calledFootnote 66) met in Cairo and declared that ‘the process of liberation is irresistible and irreversible. Colonized peoples may legitimately resort to arms to secure the full exercise of their right to self-determination and independence if Colonial Powers persist in opposing their natural aspirations’.Footnote 67 The Non-Aligned Movement made sure that the UN General Assembly was equally vocal in affirming the legitimacy of wars of national liberation.Footnote 68 The General Assembly's landmark statement on this matter is the Friendly Relations Declaration, which was adopted by consensus on 24 October 1970 through resolution 2625 (XXV).Footnote 69 The Declaration enshrined the ‘principle of equal rights and self-determination of peoples’ as one of the ten principles of international law regulating the friendly relations and co-operation among states. It conferred the right to self-determination, freedom and independence to all peoples; it also condemned any forcible action depriving the beneficiaries of their right to self-determination, and envisaged a ‘right of resistance’.Footnote 70
In 1972, Gaetano Arangio-Ruiz devoted an entire course at The Hague Academy to analysing the normative role of the UN General Assembly, using Resolution 2625 (XXV) as a case-study. His 312-page course is a carefully worded celebration of the Friendly Relations Declaration and, above all, of the embodiment of a principle on self-determination, ‘the most valuable piece’Footnote 71 of the declaration. Arangio-Ruiz was pleased that the right to self-determination was meant to address colonial situations but that it was not limited to them. Because it applies to all peoples suffering under despotic regimes, ‘self-determination is there to stay’.Footnote 72 Equally important in Arangio-Ruiz's eyes was the rather unusual procedure through which the declaration was drafted.Footnote 73 The General Assembly had decided in 1963 to set up a Special Committee, thereby ‘set[ting] aside, for the purpose of the Friendly Relations operation, the International Law Commission channel’.Footnote 74 The declaration was thus elaborated without any input from those in charge of the development and codification of international law; instead, it was drafted by a body composed of government officials – many of whom were representatives of newly independent states. This is what made it possible to insert the principle on self-determination in the declaration, thereby fulfilling ‘the high hopes of small and newly emergent nations, who sought peace and security through translating the ideals of the United Nations Charter into a practical code of conduct’.Footnote 75
Third World states achieved another victory in the struggle against imperialist domination during the diplomatic conference for the reaffirmation and development of international humanitarian law applicable in armed conflicts (1974–1977). Remarkably, issues related to wars of national liberation, even though they were practically absent from the draft protocols submitted by the ICRC and the Swiss government, soon came to dominate the conference. The ‘hijacking’Footnote 76 of the agenda by Third World states is powerfully narrated by Georges Abi-Saab, who was then part of the Egyptian delegation and one of the strongest advocates of the internationalisation of wars of national liberation. He explains how representatives of Arab, African, Asian and socialist (and to a lesser degree Latin American) states formed a coalition and succeeded in having wars of national liberation recognized as international armed conflicts under Article 1 of the First Additional Protocol to the 1949 Geneva Conventions.Footnote 77 This strengthened (even if a posteriori) the legitimacy of Third World struggles against colonial powers and alien occupation. Wars of national liberation were no longer within the domestic jurisdiction of states; they fell under international humanitarian law. Accordingly, liberation movements – including guerrilla fighters – were no longer ‘rebels’ but ‘legitimate belligerents’ who, if captured, should be treated as prisoners of war.Footnote 78
Notwithstanding that victory, newly independent states were confronted with important challenges. It was becoming clear that the older pattern of intervention in the internal affairs of states was beginning to repeat itself, with the superpowers’ creation of spheres of influence in Eastern Europe, Asia, Africa, the Middle East, and Latin America. The Soviet invasion of Hungary, the US invasion of the Dominican Republic and Cuba, and the Indian invasion of East Pakistan were all defined as exercises of collective self-defence or interventions at the invitation of governments that had requested military assistance.Footnote 79 The key difference between this period and that of colonisation was that representatives of newly independent states were now formal players in public debates about interventions. The composition of the ICJ – a topic much commented on – meant that jurists from states outside Western Europe and North America were involved in shaping the ‘new international law’.Footnote 80 The ICJ (the Court) decisions in the Nicaragua case in 1984 (admissibility) and in 1986 (merits) were perhaps the Court's most valiant effort towards strengthening the political independence of developing states.Footnote 81 The Court reaffirmed the principle of non-intervention and the sovereign integrity of a Third World state that was being threatened by a superpower.Footnote 82 ‘This was indeed a bold decision’, wrote R.P. Anand, looking back at those years.Footnote 83
Such boldness was discontinuous, however, and the UN proved to be remarkably silent on the Vietnam War. This was at odds with the inclination of international lawyers to debate the legality of US intervention at length: American scholars were sharply divided on the matter.Footnote 84 Richard Falk was adamant on limiting the possibilities for a foreign military intervention in what he considered to be an ‘internal struggle for control of a national society’.Footnote 85 Those who justified US interventionism criticized Falk's ‘juridical’Footnote 86 analysis and hoped to confront ‘legal theory with the political motivations behind the actions of nation states’ – these motivations being ‘the meaningful transmission of human values’.Footnote 87 Likewise, official explanations of US involvement in Vietnam were often described in moralistic and altruistic terms.Footnote 88
Those who support[ed] the role of the United States in the Vietnam War often emphasize[d] the absence of any selfish American interests in Vietnam. We want no territory or foreign bases, and we have no economic holdings or ambitions.Footnote 89
What I want to convey through this (very brief) historical account is the sense that, during the 1960s-1980s, one could speak about non-intervention and legitimate forms of non-state violence in a way that is no longer acceptable – or even thinkable. Because of the threat of nuclear annihilation, international lawyers were keen to think about preventing resort to war instead of trying to limit war once it begun.Footnote 90 In addition, pro-humanitarian intervention arguments were treated with suspicion by someone like Charles Chaumont: any claim to know what is good for other peoples without being open to alternative views was untenable in a post-colonial and Cold War environment.Footnote 91 In other words, the notion that a powerful state or a coalition of allies might intervene to rescue or protect the people of another state could not easily be represented as an apolitical action. Humanitarian intervention thus played a limited role, both in official justifications for the use of force and in scholarly commentary.Footnote 92 Equally important was the fact that the recourse to violence by non-state actors in revolutionary situations was something feasible, something international lawyers could support. Both Richard Falk and Charles Chaumont were openly sympathetic to ‘Uncle Ho’ and the ‘indomitable energy’Footnote 93 of the Vietnamese peoples. Others applauded the fact that ‘the indigenous peoples in Chiapas rose in arms as a symbolic cry’.Footnote 94 In France's leading international law journal, Jean Salmon pleaded for the ‘immediate’creation of the Palestinian state, not only because the conditions for statehood were met, but also as an ‘act of solidarity towards Palestinian peoples’.Footnote 95 It seems to me that today very few international lawyers would want their names to be associated that publicly with freedom fighters – the term seems anachronistic – and violent forms of emancipatory struggles.Footnote 96
Why? What happened? There is a sense that things are much more complicated today than they were in the past, that ‘war and peace are far more continuous with one another than our rhetorical habits of distinction’,Footnote 97 that revolutionary movements are harder to defend now that we have witnessed ‘the collapse of the social and political hopes that went into the anti-colonial imaginings and postcolonial making of national sovereignties’.Footnote 98 The next TWAIL generation criticized its predecessors for their ‘immense faith [placed] in the UN’Footnote 99 as well as in the ‘political independence’Footnote 100 of Third World states and in the ‘crafting [of] genuinely universal norms’.Footnote 101 The next generation saw that the project defended by many international lawyers in the 1960–1980s to strengthen the political (and economicFootnote 102) independence of Third World states did not prevent the increasing political, economic, and military disparities around the globe.
What is particularly striking is the fact that violent actions are undertaken on a daily basis in the ‘global South’ under two legal justifications: either to protect civilians or to defeat non-state terrorist groups. This suggests that whether, and under what conditions, external actors can intervene in wars continues to be a pressing question. Yet, any attempt to respond to it is caught between an idealist (human rights, humanitarian, etc.) and a realist (security, survival, etc.) vocabulary.Footnote 103 Both have shaped the political imagination grounding our concepts of non-intervention and resistance. Let me explain this.
Today is a moment after 1989, when a triumphant liberalism rose out of the collapse of the USSR.Footnote 104 From a Third World perspective, the end of the Cold War led to an important change in the UN: institutional power moved from the General Assembly to the Security Council.Footnote 105 The latter proved willing to interpret its jurisdiction widely and to authorize force in order to address situations of civil war or humanitarian crisis. It is almost strange to recall how intensely the first resolutions based on a broad understanding of ‘threats to the peace’ were debated.Footnote 106 Equally strong were the critiques lodged against the Security Council's lack of representativeness in terms of composition and transparency in terms of decision-making. Negotiations for a comprehensive reform of the Security Council did take place, but by 2002, ‘the pressure for such a reform [gave] way to a certain ennui or resignation’.Footnote 107 With its composition and decision-making process intact, the Security Council allowed for ever more expansive forms of intervention in response to crises in Third World countries, whether through military action or through a wide range of humanitarian assistance.
Anne Orford has shown how the institutional and ideological conditions of the post-Cold War period led to the ‘slow growth of support amongst scholars and activists for the idea that force could legitimately be used as a response to situations of massive human rights violations within a state’.Footnote 108 Her analysis helps us to see how the appeal to the moral authority of human rights to justify the exercise of power by international actors challenges the traditional meaning and scope of non-intervention. Take the cases of Libya and Côte d’Ivoire, which became the settings for the first application of the concept of ‘responsibility to protect’ by the Security Council in 2011.Footnote 109 Both military campaigns were heavily criticized; several states – including Brazil, Russia, and China – denounced the fact that the protection of civilians was used as a smokescreen for ‘regime change’.Footnote 110 This critique is reminiscent of past attacks on imperialist interventionism; yet, its persuasiveness is limited in post-Cold War international law, where intervention is closely linked to the protection of civilians.Footnote 111 It poses no real threat to the authority of the executive agents of the ‘international community’. For they can always argue that, in some cases, the only way to protect the population is to change the regime. In addition, the critique can be reversed and presented as morally objectionable (as an illustration: ‘the perception among the BRICS that the UN and NATO went too far in Cote d’Ivoire and Libya has encouraged them to block a timely, decisive and united response to the killing of civilians by the governments in Syria and Yemen’ [Bellamy (2011)].
This critique also says nothing about the on-going involvement of external actors in the militarisation of the region. ‘In quite subtle ways’, observes Orford, ‘the invocation of the responsibility to protect concept appears to have legitimised forms of intervention just short of direct resort to force’.Footnote 112
Today is also a moment after 9/11 and the ‘biopoliticisation of security’Footnote 113 as a response to global terrorism. In an article published in 1994, Ileana Porras pointed to the complex function that terrorism has come to perform vis-à-vis western democracies,Footnote 114 and to international law's intimate connection with the outlaw.Footnote 115 One effect of the claim that a group using violence is a terrorist group is that it liberates the state from having to itself abide by the laws of war in its ‘war on terror’.Footnote 116 This is exemplified by the practice of targeted killings of suspected terrorists, a practice developed by the US and other Western powers in their military campaigns in Afghanistan, Pakistan, Yemen, etc. The legal basis for this – i.e., for the deployment of armed force ‘short of war’ against non-state actors within the jurisdiction of another state – continues to be debated. One cannot fail to notice how the connection between ‘protection’ and targeted killings renders, here again, the concept of non-intervention almost unsuitable.Footnote 117 The question is not whether we should intervene, the question is now how should we intervene (launch of drone attacks? Deployment of special military forces? Etc.). Put differently, terrorism liberates us from justifying recourse to violence – what we become concerned about is how to ensure the effectiveness of military action while minimizing its costs.
In addition, it is easy to see how terrorism has come to disqualify non-state actors who resort to violence, regardless of the means or the cause or any contextual element.Footnote 118 Terrorism is precisely the kind of non-state violence that cannot, ever, be justified. Vasuki Nesiah made a similar point in relation to the ICJ Advisory Opinion in the Wall in the Occupied Territories case. ‘Today’, she writes,
the principle strategy for blunting the political challenge against repressive occupation is “scaling-up” the issues at stake into the war against terror. In its written submissions to the ICJ the government of Israel insisted that the wall was the vanguard in the war against terror, the shield providing security for those fighting the good fight. The wall was not about occupation but about self-defence for those confronting terrorism. Not about self-determination but about self-preservation.Footnote 119
Her argument is that the ‘war on terror’ has diffused the critical charge of national self-determination. But the latter concept has also become dated or somewhat unpractical given the pervasiveness of occupation: ‘it can speak of how Palestinian people are hurt by the colonial occupation, but it cannot address how their aspirations are also shaped by that relationship’.Footnote 120 More generally, the idea of a legitimate resistance to occupation – not only in Palestine but also, for instance, in Iraq – has become harder to sustain. For Frédéric Mégret, this is due not only to the rise of counter-terrorism but also to the ‘transformative’ role that occupation has acquired in international law.Footnote 121
To conclude, one cannot study the dynamics in the scholarship on the use of force without looking at the evolution of the law on the use of force. A post-colonial analysis invites us to examine the trajectories of legal concepts such as non-intervention, aggression, and self-determination. What did they mean at the time of decolonization? How much of their critical charge is left, in light of the ever more humanitarian interventions allowed (in the name of ‘protection’) and the ever less resistance movements tolerated (in the fight against ‘terrorism’)? It appears that, even though their political effects are not pre-determined, the vocabularies through which international lawyers talk about the use of force today largely work to the detriment of marginalized groups and people from the global South. This is precisely what is occulted by the restrictivist-expansionist framework.Footnote 122 Indeed, I have tried to show that the ‘history of violence’, as it were, appears quite different if viewed from a Third World perspective. Any meaningful contribution to the debate on the use of force should now consider avenues of resistance to legally saturated violence.
