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HUMANITARIAN INTERVENTION AND PRETEXTS FOR WAR ByRyan Goodman * 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 Councilauthorization? That question has acquired even greater sig- nificance in thewake of military interventions in Kosovo and Iraq, andnonintervention in the Sudan. Concerted deliberation on these issues, however, has reached an impasse. A key obstacle to legalizing unilateral humanitarian intervention (UHI)2 is the overriding concern thatstates 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 contendthat legalizing UHI shouldin important respects discourage wars with ulterior motives, andI discuss changes to international legal institutions thatwould amplify that potential effect. The concern that states would exploit a humanitarian exception to justify military aggres- sion has long dominated academic and governmental debates. This concern pits thevirtues of humanitarian rescue against the horror of having expanded opportunities for aggressive war. Dating backto Grotius, proponents of legalizing humanitarian intervention have struggled with the objection thattheir proposals would be abused asa pretext forwar.3 The proponents * J. Sinclair Armstrong Assistant Professor of Foreign, International, and Comparative Law, Harvard Law School.This article benefited significantly from presentations at the BoaltHall Schoolof LawInternational Law Workshop, the University of Chicago International Law Workshop, the Georgetown University Law Center Inter- national Legal TheoryColloquium, and the University of Georgia International Law Colloquium. I owe special thanks to William Alford, DavidBarron, DonaldBraman, James Cavallaro, Andrew Guzman, DerekJinks, Chris- tine Jolls, Beth Van Schaack, Henry Steiner, WilliamStuntz,andJohn Yoo. I thankNaomi Loewith, Brandon Miller, Bryan Seeley, and Stephan Sonnenberg for excellent research assistance. 1 See UN Press Release SG/SM/7136 (Sept. 20, 1999) (Kofi Annan explaining thathumanitarian intervention presents a "core challenge to the Security Councilandthe UnitedNationsas 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 smallnations alike"). 2 A conventional definition of "humanitarian intervention" is "the threat or useof force by a state, group ofstates, or international organization primarily for the purpose of protecting the nationals of the target statefromwide- spread deprivations of internationally recognized human rights." SEAN D. MURPHY, HUMANITARIAN INTER- VENTION:THE UNITED NATIONS IN AN EVOLVING WORLD ORDER 11-12 (1996). The term "unilateral humanitarian intervention" commonly refers to the threat or useof force by one or more states acting withoutSecu- rity Council authorization. SeeMichael Byers & Simon Chesterman, Changing theRules About Rules? Unilateral Humanitarian Intervention and the Future of nternational Law, in HUMANITARIAN INTERVENTION: ETHICAL, LEGAL AND POLITICAL DIMENSIONS 177, 178 (J. L. Holzgrefe & Robert O. Keohane eds., 2003). 3 The legal doctrine of humanitarian intervention traces its roots to thetreatise 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 LIBRI TRES, ch. XXV, pt. VIII(4) (Carnegie ed., Francis W. Kelsey trans. 1925) (1625) ("Hence, Seneca thinks thatI 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, fromboth ancient andmodern history, thatthe desire forwhatis another's seeks such pretexts as this for its own ends; but a right doesnot at once cease to existin caseit is to someextentabused by evil men. Pirates, also, sailthe sea; arms are carried also by brigands."). Interestingly, eighteenth-century Swiss jurist Emer de Vatteltook 107
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HUMANITARIAN INTERVENTION AND PRETEXTS FOR WAR* ByRyanGoodman

The legalstatusof humanitarian intervention posesa profoundchallengeto the futureof order.'The centralquestionis easyto formulatebut notoriouslydifficultto answer: global to law Shouldinternational permitstatesto intervene militarily stopa genocideor comparable evengreater That withoutSecurity Councilauthorization? questionhasacquired sigatrocity in in in nificance the wakeof military interventions KosovoandIraq,andnonintervention the A has an on Sudan.Concerted deliberation theseissues,however, reached impasse. keyobstacle concernthatstates to legalizing unilateral humanitarian intervention (UHI)2is the overriding motives.In this to would use the pretextof humanitarian intervention wagewarsfor ulterior article,I arguethat it is just as likely,or even morelikely,that the impacton stateswould be the opposite.Drawingon recentempirical studies,I contendthat legalizingUHI shouldin to warswith ulterior motives,andI discusschanges international respects important discourage legalinstitutionsthatwould amplifythat potentialeffect. The concernthat stateswould exploita humanitarian exceptionto justifymilitaryaggresThis concernpits the virtuesof debates. sion haslong dominatedacademic governmental and war. for humanitarian rescueagainstthe horrorof havingexpandedopportunities aggressive havestruggled intervention Dating backto Grotius,proponentsof legalizinghumanitarian The proponents with the objectionthattheirproposals would be abusedasa pretextforwar.3* Sinclair and Comparative AssistantProfessorof Foreign,International, Law, HarvardLaw J. Armstrong Law at School.This articlebenefitedsignificantly frompresentations the BoaltHall Schoolof LawInternational LawCenterInterthe of Law the University Workshop, University ChicagoInternational Workshop, Georgetown Law nationalLegalTheoryColloquium,and the Universityof GeorgiaInternational Colloquium.I owe special ChrisAndrewGuzman,DerekJinks, DonaldBraman, thanksto WilliamAlford,DavidBarron, JamesCavallaro, tine Jolls, Beth Van Schaack,Henry Steiner,William Stuntz,andJohn Yoo. I thankNaomi Loewith,Brandon assistance. for Miller,BryanSeeley,and StephanSonnenberg excellentresearch 1 SeeUN PressRelease intervention thathumanitarian SG/SM/7136 (Sept.20, 1999) (KofiAnnanexplaining see to the Security a Counciland the United Nationsas a whole in the next century"); also presents "core challenge 50 DavidJ. Bederman, International and UnitedStates Law Globalization, L.J. Foreign Policy, EMORY 717 (2001) have... becomea centralissueof the foreignpoliciesof manynations,greatpowers interventions ("humanitarian and smallnationsalike"). 2 A conventional or is definitionof "humanitarian intervention" "thethreat useof forcebya state,groupofstates, or international for primarily the purposeof protectingthe nationalsof the targetstatefromwideorganization INTERHUMANITARIAN D. of humanrights."SEAN MURPHY, spreaddeprivations internationally recognizedVENTION:THE UNITED NATIONS IN AN EVOLVINGWORLD ORDER 11-12 (1996). The term "unilateral

to or humanitarian intervention" commonlyrefers the threat useof forcebyone or morestatesactingwithoutSecuUnilateral AboutRules? the See Changing Rules rityCouncil authorization. MichaelByers& Simon Chesterman, INTERVENTION: and Humanitarian Intervention theFutureof nternational ETHICAL, Law,in HUMANITARIAN LEGAL AND POLITICAL DIMENSIONS 178 (J. L. Holzgrefe& RobertO. Keohaneeds., 2003). 177, 3 The Dutch doctrine humanitarian intervention its of traces rootsto thetreatise theseventeenth-century by legal the juristHugo Grotius.Upon introducing idea, Grotiustackledthe prospectof its beingabusedas a pretextforAC war. 2 HUGO GROTIUS,DE JUREBELLI PACISLIBRITRES, ch. XXV, pt. VIII(4) (Carnegie ed., Francis W.

Kelseytrans.1925) (1625) ("Hence,SenecathinksthatI maymakewarupon one who is not one of my peoplebut which is often connectedwith the protectionof innocentpersons.We know, his oppresses own,... a procedure as seekssuchpretexts this for it is true,fromboth ancientandmodernhistory,thatthe desireforwhatis another's its own ends;but a rightdoes not at once ceaseto existin caseit is to someextentabusedby evil men. Pirates, also, SwissjuristEmerde Vatteltook also sailthe sea;armsarecarried by brigands."). eighteenth-century Interestingly,107

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weremost influential the latenineteenthcentury4-admittedlya periodin which internain tionallawpermitted statesto useforceon manyandvariedgrounds(andimperialism reigned). lost In the contemporary however,the proponents haveessentially the debate.The terms era, in of discussion haveshiftedat variouspoints,5andNATO's intervention Kosovohas,in parofUHI andtheability one of the mostnuanced discussions aboutthepropriety ticular, spurred to regulate in the post-Cold War period.6Nevertheless, consensusof opinion among the it intervenfor andjurists favors Councilapproval humanitarian Security governments requiring over tion.7And the pretextobjectionhasbeena significant factorin shapingthatperspective; of the pastfew decades, hasfiguredimportantly the analyses leadingpublicinternational in it LouisHenkin,ll law scholars-including Richard ThomasFranck,1? Ian Bilder,8 Brownlie,9OF DE Grotiusto taskspecifically the pretextissue.SeeEMER VATTEL,THE LAW NATIONS bk. II, ch. i, ?7 on to led into thiserror, was,his attributing everyindependent (JosephChittytrans.,1879) (1758) ("What [Grotius] an man, and of courseto everysovereign, odd kind of rightto punishfaultswhich involvean enormousviolation of the lawsof nature,thoughtheydo not affecteitherhis rightsor his safety.... Couldit escapeGrotius,that,nothis all addedby him in the followingparagraphs, opinionopensa doorto all the ravwithstanding the precautions Thoselinesof debateconand and ambitionwith numberless pretexts?"). agesof enthusiasm fanaticism, furnishes 8 du tinuedinto the nineteenthcentury.See,e.g.,G. Rolin-Jaequemyns, surla Theorie DroitdIntervention, NoteREVUEDE DROIT INTERNATIONAL DE LtGISLATION ET COMPAREE 675,679 (1876) (revisiting issue of pretext

objectionin Vattel'sresponseto Grotius).

COLLECin KOSOVO AND THECHALLENGE HUMANITARIAN INTERVENTION: SELECTIVE OF INDIGNATION, TIVEACTION, AND INTERNATIONAL CITIZENSHIP 319 (Albrecht Schnabel & Ramesh Thakur eds., 2000).

4 SeeIAN BROWNLIE, that LAWANDTHEUSE OF FORCEBYSTATES INTERNATIONAL 338 (1963) (explaining intervention the of admittedthata rightof humanitarian "[b]ytheendof thenineteenth century majority publicists (l'intervention d'humanite) existed"). 5 Intervention note 2; seealsoJamesMayall,TheConcept Revisited, MURPHY, supra ofHumanitarian Seegenerally

6 Comments: NATO'sKosovo 93 See,e.g.,Editorial Intervention, AJIL824 (1999) (includingessaysbyJonathan and I. Charney, LouisHenkin,W. MichaelReisman, Christine Chinkin,Richard Falk,ThomasM. Franck, M. A. L. 10 RuthWedgwood);BrunoSimma,NATO,the UNand the UseofForce: J. LegalAspects, EUR. INT'L 1 (1999); Humanitarian Ex AntonioCassese, iniuriaiusoritur: WeMovingTowards Are ofForcible InternationalLegitimation in id. Countermeasuresthe World Community? at 23. 7 In the 80 pastfiveyears,morethan 133 states(representing approximately percentof the world'spopulation) note 26. haveissuedindividual joint statements or the of rejecting legalization UHI. Seeinfratext accompanying ": Promise Interventionism The weightof academic and is alsoagainst Richard Bilder,Kosovo the "New it. B. opinion the orPeril? J. TRANSNAT'L& POL'Y haverejected claimthathumanitarian L. 9 153, 161 (1999) ("mostscholars CLARK ANTHONY intervention a legitimate is of exceptionto theprohibition the useof forcein the UN Charter");

PARBEYONDTHEUN CHARTER AREND& ROBERTJ.BECK,INTERNATIONAL LAWANDTHEUSE OFFORCE:

to The ADIGM (1993) (describing of the "majority scholars"); view of OscarSchachter, RightofStates UseArmed 131 a wouldnot assert right L. 82 Force, MICH. REV.1620, 1629 (1984) ("governments andlarge(andmostjurists) by out carried in that country"). to forcibleintervention protectthe nationalsof anothercountryfrom atrocities to 8 Bilder, served havetypically note 7, at 160-61 ("historically, intervention claimsofhumanitarian simply supra see as a pretextforwhat are,in fact,selfishassertions nationalinterest,power,and greed"); alsoid. at 166-67. of 9 IanBrownlie, WORLD IN MODERN in 217-28 (John Humanitarian ANDCIVILWAR THE Intervention, LAW INTERVENTION in NortonMooreed., 1974);IanBrownlie,Thoughts Kind-Hearted on Gunmen, HUMANITARIAN ANDTHEUNITED NATIONS B. 139, 147-48 (Richard Lilliched., 1973) ("Whatever specialcasesone can point as to, a ruleallowinghumanitarian intervention, opposedto a discretionin the United Nationsto act throughthe to appropriate organs,is a generallicenseto vigilantesand opportunists resortto hegemonialintervention."). 10ThomasM. Franck& Intervention Military The by Nigel S. Rodley,AfterBangladesh: LawofHumanitarian states fromthe Bangladesh is an unlimitedfiatforlarger 67 Force, AJIL 275,304 (1973) ("[A]lawderived precedent has to oppresstheirsmallerneighbors.... Historyshowsthatwhen the humanitarian justification been invoked, it has mostlybeen undercircumstances which thereis at leasta strongsuspicionthat the factsand usuallythe in modifiedhis position,he maintainsthat the use of motive,werenot as alleged."). subsequently AlthoughFranck forceregimeis not readyfor a humanitarian by interpretations interexceptiondue to the prospectof self-serving AND HEGEMONY THE states.SeeThomas Franck,Comments Chapters and 8, in UNITED STATES on 7 vening FOUNDATIONS INTERNATIONAL 264, 265, 267 (MichaelByers& GeorgNolte eds., 2003); THOMAS OF LAWM. FRANCK, AND ARMEDATTACKS172, 185-86 RECOURSE FORCE:STATEACTIONAGAINSTTHREATS TO

in and in Intervention, HUMANITAR(2002);ThomasM. Franck, Interpretation Change theLawofHumanitarian IANINTERVENTION: AND POLITICAL LEGAL DIMENSIONS, note 2, at 204, 229-31. ETHICAL, supra BEHAVE: ANDFOREIGN POLICY HOWNATIONS 144-45 (2d ed. 1979) ("Tome, 11LOUIS LAW HENKIN, to thesepressures and erodingthe prohibitionon the use of forcearedeplorable, arguments legitimizethe use of

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and OscarSchachter,12 BrunoSimma,13 JaneStromseth'4-who havearguedagainstlegalizhaveopposedlegalizing UHI.15Forthe samereason, UHI,16andeven manygovernments ing without Security intervention that in the caseof governments haveengagedin humanitarian to to therehasbeena reluctance justifysuchactionsby reference a rightto Councilapproval, engagein UHI.17 aboutstateopportunism concernaboutpretextwarsturnson assumptions The overriding To statebehavior. address and the powerof both law and perceived legitimacyin regulating and of hostilities the influthusrequires thisproblem patterns interstate understanding empirical of an abundance institutions encethatinternational mightexerton stateconduct.Fortunately, addresses socialscienceresearch manyof thesesubjects.Of specialinterestfor this articleare and betweeninternational domestic theoretical empiricalinsightsinto the relationship andbe can intervention' too readily ... are and forcein thosecircumstances unpersuasive dangerous. '[H]umanitarian Interand see usedas the occasionor pretextforaggression."); alsoLouisHenkin,Kosovo theLawofHumanitarian vention,93 AJIL824 (1999).12

for sirableto havea new ruleallowinghumanitarian intervention, that could providea pretextfor abusiveintervention."). 13 such view note 6, at 5 (favorably British Simma,supra government's that"thescopeforabusing quotingearlier humaninstances or whether"recent current itscreation" questioning and a rightargues of'military strongly against in such motives characterized actions the past"). that showthemselves be uninfected the lesslaudable to itarianism' by 14JaneStromseth, in HUMANITARIAN The Intervention: CaseforIncremental Humanitarian Change, RethinkingLEGALAND INTERVENTION: POLITICAL DIMENSIONS, ETHICAL, supranote 2, at 232,257 (rejecting notion that "formal adoption of a legal doctrine of humanitarian intervention with specified criteriawould 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 CRIMINAL INTERNATIONAL REVENGE?: GLOBAL OR Seealso HANS KOCHLER, JUSTICE JUSTICE GLOBAL 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'");YORAM DINSTEIN,WAR,AGGRESSIONAND SELF-DEFENCE (2001) ("Commentators have drawn comparisons between 'humanitarian interven67 tion' 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

126 (1991) ("[I]t is highly undeINTERNATIONAL LAWIN THEORYAND PRACTICE OSCARSCHACHTER,

to Authorizations UseForce, the Council: Jules Lobel & MichaelRatner,Bypassing Security Ambiguous justice.");Cease-Firesand the Iraqi InspectionRegime,93 AJIL 124, 153 (1999) (arguing that "greatpowers can use humanitarian concerns to mask geopolitical interest");Michael Akehurst, Humanitarian Intervention, in INTERVENTION IN WORLD POLITICS 95, 111 (Hedley Bull ed., 1984). 16 See, e.g., United Kingdom Foreign Office, Pol'y Doc. No. 148, reprintedin 1986 BRIT.Y.B. INT'LL. 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., 401 1th mtg. at 9, UN Doc. S/PV.4011 (June 10, 1999) (government of China supra note arguing that UHI "promote[s] hegemonism under the pretext of human rights");see also SCHACHTER, 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 ...."). RELATIONS TIONAND INTERNATIONAL 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

17 Nicholas Wheeler, TheHumanitarian the of J. Explaining Development a New of Responsibilities Sovereignty: INTERVENin in International Humanitarian NormofMilitary Society, HUMANITARIAN Interventionfor Purposes

Interand HardCases MakeBadLaw:Law,Ethics Politicsin Humanitarian pretextwars);cf Simon Chesterman,46,50 (Anthony F. LangJr. ed., 2003) ("Interestingly, despite the efforts by some vention, inJUST INTERVENTION scholars to argue for the existence of a right of humanitarian intervention, states themselves have continued legal 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."); Antonio Cassese, A Follow-up: Forcible Humanitarian Countermeasures andOpinio Necessitatis, 10 EUR.J. INT'LL. 791,792-93 (1999) (discussing concerns of Germany and Belgium not to set "precedent" for UHI); Byers & Chesterman, supra note 2, at 198-200.

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politicalprocess.Indeed,an importantdevelopmentin politicalscienceresearch recognizes that international relations domesticpoliticsareinterrelated thatthose connections and and arecentral explaining causesofwar.18 to the international Whethera permissive legalenvironment for humanitarian would spurundesirable of forceshouldaccordingly uses justifications be analyzed with theseinstitutional dynamicsin mind. Thisarticle the ofwarlargely research and analyzes determinants quantitative usingavailable otherpoliticalsciencestudies.Fromthis methodological the gruesomenature vantagepoint, of warmayseemto recedeinto the background. presence always however.Sincethe Its is felt, of hostilities allowforsuchsystematic to it patterns interstate closely analysis, is crucial examine whether lawsdesigned regulate useof forceareaccordingly to the moreorlesslikelyto promote violencebetweenstates. In partI, I describe lawon the use of forceand outlinethe theoretical the model thatserves asthe basisforthe pretextargument. partII, I contendthatacademic In discussions aboutthe do not adequately considerthe sociological of pretextobjection consequences being required to justifystartinga war.In particular, contendthat encouraging I statesto justify aggressive force as an exerciseof humanitarian interventioncan facilitateconditionsfor peace using betweenthosestatesand theirprospective This resultis, of course,paradoxical, it but targets. is groundedin empirical studiesof unintendedconstraints stateaction.As the discussion on in partII demonstrates, leaders becomecaughtin theirown publicjustifications a milcan for the itarycampaign. Consequently, framing resortto forceasa pursuitof humanitarian objecissuesto an ongoingmilitary domesticpolittives,or addinghumanitarian effort,can reshape ical arrangements and the character interstaterelationsthat lead to war. In its most of is disform, my argument that-compared to the existingbaselineof interstate provocative thatmightescalate warbetweensuchaggressor defendingstates-the net effect into and putes on warwould be desirable. That said, I do not purportto offera comprehensive defenseof that an to legalize UHI. UHI, andI do not suggest theseeffectsprovide affirmative justification I suggestonly that they discreditthe pretextobjection.I alsofocuson just this one objection and address otherconcernsonly insofaras they relateto the pretextissue.The essential point is thattheveryconditionsthatcommentators warsby aggressive wouldunleash pretext suggest statesmay,in general on average, and of temperthe bellicosebehavior thosestates.In partIII, I considerpotentialobjectionsand refinements the precedinganalysis. to The claimspresented thisarticle in includeboth a stronganda modestposition.The strong UHI should,on balance, wars positionholdsthatlegalizing discourage aggressive by statesthat use the pretextof humanitarianism. this position is correct,concernsabout pretextwars If shouldberetired. modestposition,whichis moreeasilydefended, alsohighlyimportant. The is It holdsthatsomeaggressive thatwould be foughtin the current wars legalregimewould not be foughtin a regimethatpermitsUHI. On thisview, it is dubiousfor the pretextconcernto remainan obstacleto legalizing of without knowingwhetherthe prevalence UHI, especially warswouldlikelybe higherorlowerthanthe statusquo. Commonto bothpositions aggressive is the insightthatlegalizing UHI holdsthe prospect restraining of wars.Once someaggressive18

SCI. REV.577 (1994); BRUCERUSSETT, GRASPING THEDEMOCRATIC FORAPOST-COLD PEACE: PRINCIPLES

D. Domestic 88 PoliticalAudiencesandthe Escalation See,e.g.,James Fearon, ofnternationalDisputes, AM.POL.

WARWORLD Decisional Structure, (1993); T. CliftonMorgan& SallyHowardCampbell,Domestic Constraints, and War:So WhyKantDemocracies RESOL. (1991); Zeev Maoz & NasrinAbdolali, 35 187 Fight? J. CONFLICT andInternational RESOL.(1989); cf RyanGoodman,Review 1816-1976, 33J. CONFLICT 3 Regime Types Conflict, International Institutions the Mechanisms War, 99 AJIL507 (2005) (reviewing and JOHNNORTON Essay: ofTHEWAR PUZZLE: BEYONDTHE DEMOCRATIC PEACE(2004)) (analyzing competing theMOORE, SOLVING oretical explanations of the democratic peace for the purpose of institutional design).

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the dynamicsthat produce those restraints understood,institutionalschemes can be are to strengthen supportthem. and designed At bottom,a leadingprudential UHI restson questionable assumpobjectionto legalizing tions. Those assumptionsconcernthe effectsof legal changeon state behavior.Given the of statesto stop genocidesandsimilar atrocities, misconceppotentialadvantages authorizing and tionsof countervailing mustbe corrected, effortsto miteffectsof proposed legalchanges igatesuch effectsshouldbe closelyconsidered.I. THE MODELOFPRETEXT WARS

is law In this part,I firstoutlinethe contemporary international on UHI. This analysis relI analyze pretextobjecthe elsewhere.19 Second, ativelysynoptic,asthe issueis amplycovered moredetailed,becausean expositionof tion to legalizing UHI. This discussionis necessarily the componentsof the objectionhas not been presented before. TheLawAgainstUnilateral Humanitarian Intervention or SinceWorldWarII, international hasprohibited statesfromthreatening usingforce law somescholars in self-defense pursuant Security or authorization. to Council Although except law havearguedotherwise,20 is difficultto escapethe conclusionthat international forbids it As a matterof treaty the unilateral of forceto rescue use victimsof a humanitarian catastrophe. and does not exemptUHI from the prohibitionon the use of force,21 law, the UN Charter As General this interpretation.22 a matterof resolutions Assembly prominent clearly support v. international the International Courtof Justicein Nicaragua UnitedStates law, customary law concludedthat customdoes not permitUHI.23And accordingto leadinginternational underboth in statepractices the 1990s,thelegalprohibition treatises, persists despitedivergent and custom.24 treaty19See, e.g., Adam Roberts, The So-Called "Right"ofHumanitarian Intervention, 2001 Y.B. INT'LHUMANITARLEGAL AND POLITICAL ASPECTS IANL. 3; DANISHINST. INT'LAFF., HUMANITARIAN INTERVENTION: 77-95 An (1999), at ; Tom J. Farer, Inquiryinto theLegitimacy of rosch & David J. Scheffer eds., 1991). 20 For one of the most persuasive arguments that UHI is lawful, see Christopher Greenwood, Humanitarian OF THE CHARTER THE UNITED NATIONS:A COMMENTARY (Bruno Simma ed., 2d ed. 2002). 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 ParamilitaryActivities 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 offorce 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 LAW373-74 (2d ed. 2005) (summarizing the legal authorINTERNATIONAL See, e.g., ANTONIO CASSESE, LAW710-12 (6th ed. 2003) (summarizing the PRINCIPLES PUBLICINTERNATIONAL OF ity); IAN BROWNLIE, N. LAW1046 (5th ed. 2003) (summarizing the legal authorlegal authority); MALCOLM SHAW,INTERNATIONAL LAW221 (7th rev. ed. TO AKEHURST'S MODERNINTRODUCTION INTERNATIONAL MALANCZUK, ity); PETER 1997) (summarizing the legal authority); cf Anne Ryniker, The ICRC's Position on "Humanitarian Intervention," 83 INT'LREV.RED CROSS527, 530-31 (2001) (statement by legal adviser and deputy head of the Legal Division of the International Committee for the Red Cross); INDEP.INT'LCOMM'NON KOSOVO,THE KOSOVOREPORT 166-76 (2000).22 21

ORDER (LoriFislerDamHumanitarian in ANDFORCE THENEWINTERNATIONAL IN 185 Intervention, LAW The Intervention: CaseofKosovo, L. Y.B. 1999 FINNISH INT'L 141.

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To be sure,recentdevelopments indicatethatthe legalregimemaybe subjectto changein in interventions Liberiaand SierraLeone and the coming years.Subsequentto ECOWAS in NATO's intervention Kosovo,manycommentators agreethat some formof exceptionto in the prohibitionmaybe gainingacceptance.25 Nevertheless, the pastfiveyears,at least 133 or stateshaveissuedindividual joint statements Additionally, despite opposinglegalization.26 UN the prospectof wide-ranging reform,both the 2004 reportby the UN High-LevelPanel on on Threats,Challenges Changes27 the 2005 reportof the secretary-general UN and and the Security reform28 Council'slegalmonopolyoverthe use of forcefor suggestmaintaining in At on humanitarian largely place,and purposes. bottom,the legalprohibition UHI remains revisionof it.29 actorsarenot inclinedto supporta fundamental powerfulinternational Forthe purposeof our discussion, is important understand recall)the scopeof the it to (or of The prohibitionappliesto all usesof force-the full spectrum interstate legalprohibition. to violence.The prohibitionregulates practices: threat use forceand the actualuseof two the in Yet force.The formalruleagainstUHI categorically all thesemeasures. as the analysis bans includbetweenthesevariousmeasures, we partII demonstrates, mightconsiderinteractions reducetheprevalence whetherthe useof forceshortof warforhumanitarian may purposes ing: of wars,andwhetherthe threatto wagewarfor humanitarian purposesmayreducethe prevalenceof statesengagingin war. of the The remainder this partexplicates pretextobjectionto UHI. Forthe purposeof the UHI. The law it is important to recognize moderninternational precludes that analysis, simply questionis: shouldit? ThePretext to Objection Legalization One mightwell supporta state'suseof forceto halta genocidein a specificinstance,yet be humanitarof a concerned aboutthe consequences openlyendorsing principle preauthorizing ianintervention a matter law.30 keyconcernis how to containthe practical of A as implicationsLAWAND THE USE OF FORCE99 (2d ed. 2004); MURPHY, See,e.g.,CHRISTINE GRAY,INTERNATIONAL AND ON note 14, at233; cf INDEP. INT'L COMM'N INTERVENTION STATE note2, at 366; Stromseth, supra supra SOVEREIGNTY, note 19, at 15-16, 47-51 (discussing supra emergingpractice). 26 See, e.g., Declarationof the South Summit, Havana, Cuba, Apr. 10-14, 2000, para. 54, at research reported fifteen... journals focuson quantitative for COW wasthe mostfrequently dataproject the period1974to 1986;COW accounted thirty-one cited in politics, one ofthecitations in oftheeightleading projects. conducted 1984among hundred data in Furthermore, asurvey percent andsixty-one in foundCOW at the top and research, specialists international comparative thirty-nine percent political ofthelistofcurrently data for archived setsthat'should designated be data national resources maintenance, improvement, andExtraandexpansion.'"); Meredith Sarkees, Reid Frank WhelonWayman, DavidSinger, Inter-state, Intra-state, &J. state Wars:A Look STUD. 49, 49 (2003) ("For over Q. Comprehensive at TheirDistribution Time,1816-1997,47 INT'L world morethanthreedecades [COW]Project's the needsof mostof the quantitative database served research has the in the cassesof war... throughout internaand to for politics community, especially identifying trying account several tionalsystem since1816."). 66 4 S. and John Vasquez& Christopher Leskiw,The Origins WarProneness Rivalries, ANN. REV. ofInterstate POL. studSCI.295,298 (2001) (describing withinorigin-of-war shift"towardusingdyadicanalysis "consolidated RESOL. (1992). 309 War,1816-1965, 36J. CONFLICT gerousDyads: ConditionsAffectingtheLikelihoodoflnterstateNotably, two-party conflicts represent the vast majorityof 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 69 63

& STUDY OF INTERNATIONAL ies); DANIELS. GELLER J. DAVID SINGER,NATIONSAT WAR:A SCIENTIFIC CONFLICT 22-24,68 (1998) (describing theoretical importance of dyadic analysis);seealso StuartA. Bremer, Dan-

Vasquez,supranote 64, at 10. CfJohn A. Tures,Expanding IssueCorrelates War(ICOW)Project: and the Claims, Disputes, Regime-Based of StudiesAssoMeansofSettlement, at 1816-1996(1998) (paper presented the annualmeetingof the International more ciation,Minneapolis, MN), at ) (discussing the and interventions otherregime-based for comprehensively coding methodsand measurements humanitarian conflictsfor the ICOW database).

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includesmilof interventions. state-a salientcharacteristic humanitarian Also, the category that has becomea acuteformof intervention effortsto effectuate itary "regime change"-an intervention.In opponentsof legalizinghumanitarian primaryconcernfor contemporary termsof codingprocedures forthe dataset, used theseMIDs include:theU.S.-ledintervention and in Haitiin the early1990s;the British,French, U.S. no-flyzonesin northern southern and in Leone.70 intervention Sierra Iraq;and the Nigerian/ECOMOG and the datasethas begunto includevariables identifythe primary secondary that Third, that ofteninvolvemulwhichreflect recognition disputes the issuesin dispute.Thesevariables, ofwar to whether how theprobability and morecarefully issues,allowresearchers examine tiple correlates with primary secondary and issuesin contention. Fourth, the datasetdeterminesthe content of the issues based on the claims explicitly the asserted the revisionist statebeforethe MID.71This deviceis well suitedfor evaluating by condo pretextmodel.The codingprocedures not identifyissuesby tryingto drawinferences the track The or actualmotivations underlying interests. codingprocedures the actors' cerning claimsthat the revisionist stateopenlyasserts.72 the us serve wellin analyzing pretext these and studies variables, Overall, codingrules, associated the examine probstate. on theagenda theintervening Somestudies modelandtheissues by placed that will the that into ability a dispute escalate an MID, andothersexamine probability an MID in the article.73 into bothareas research different of at will escalate war.I discuss points humanto evidencesuggeststhat if a revisionist The available stateis encouraged portray war as itarian the concerns thebasisforescalating hostilities, roadto aggressive maybe diverted; in conflictsin whichthe revisionist stateclaimsto seekchanges theopposingregime militarized MIDs territorial In aregenerally or contrast, amongtheleastincendiary, leastwar-prone. sharp a minority arethemostlikelyto leadto war.Indeed,although territorial only represent disputes studiesof statedyads,the of MIDs, thoseMIDs producethe majority Acrossseveral ofwars.7470 The next closestcognatefor humanitarian interventionis the foreignpolicy category.Indeed, researchers as issuesincludedin laterphases codedtheKosovoconflictprimarily a foreign policyMID with regime/government the of the hostilities. Those codingdecisionsmayreflectthatin buildingsupportfor,andthreatening useof, force, NATO membersarticulated rationalebased on regionalstabilityand alliancecredibility.Notably, in many a the empirical respects, distinctionbetweenforeignpolicyMIDs and regimeMIDs may not resultin a significant with of of difference. discussed As exhibitsimilar below,the two classes casesgenerally patterns escalation empirical in to Indeed,somestudiesmergeregimeandforeignpolicyMIDs into a comrespect the issuesexplored thisarticle. evidence for MIDs. Seesupra note 61; infranote 78. This articlerelieson the available parisoncategory territorial humanitarian-based measured to makeempirically theoretical claims.A research thatspecifically project grounded to MIDs wouldallowthesetheoretical claimsto be tested.The ICOW database promises soon offerthe meansfor at suchanalyses. note69, at 17;seealso ICOW project SeeTures, description, (usingaggregated disputerather overthreetimeshigherfor disputesinvolvingterritorial issuesthan for disputesoverothertypesof disputes") (in see citationsto article,pagenumbers referto onlineversion); alsoPaulD. Senese,Territory, Contiguity, subsequent andInternational SCI.769 (2005) (tbls.1b, 2, & 3) (find49 Conflict:Assessinga NewJointExplanation, AM.J. POL. morelikely states,weresignificantly MIDs, betweenboth contiguousstatesand noncontiguous ing thatterritorial to escalateinto warthan nonterritorial MIDs). 79 In into of showa muchhigherprobability escalating war betweentwo major states,territorial disputes disputes of (.42), which is well abovethe baseprobability war(.246). Foreignpolicydisputes(.177) arenontrivially higher are than regimedisputes(.056). Vasquez& Henehan,supranote 71, at 135. All variables statistically significant. 80 of In disputesbetweenmajorandminorstates,territorial disputesagainshowa muchhigherprobability escaofwar (.206). Regimedisputes(.122) arehigher latingintowar(.478), whichis stillwell abovethe baseprobability are than foreignpolicydisputes(.091)-but only marginally Id. at 135. All variables statistically so. significant. 81 into of In disputesbetweentwo minorstates,territorial disputesretainthe highestprobability escalating war wellabovethe baseprobability (.147). Here,regimedisputes(.133) arenontrivially higherthanfor(.235)-again, lacksstatistical significance. eign policy disputes(.05). Id. However,the regimevariable 82 to SeeHensel,supranote 78, at 25. Hensel findsthat theseresultspersistwhen differenttypesof resolutions the initialMID-stalemate, decisivevictory,or compromise-are takeninto account.Id. at 26-27. Compromise Id. outcomes,however,arenot statistically significant. at 27. 83 Id. at 26.75 Senese&

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One might speculate that the issues that dominate disputes between two states-for example, if states have a long-standing dispute over territory-will swamp the effects of recasting a particularMID in humanitarian terms. Another recent study finds, however, that even when controlling for the issue that generally dominates disputes between two particularstates, if a single incident involving the threat or use of force (an MID) is cast as reflecting a regime claim instead of a territorialor foreign policy claim, the likelihood that the dispute will escalate into war is significantly reduced.84In particular,the probability that the MID will result in war is remarkablylower for regime issues (1.179) than for territorial(1.493) or foreign policy (1.544) issues.85 Scholars who have studied the incendiary nature of territorialdisputes generally attribute these findings to the cultural and ideological salience of territory within domestic politics, whether popular or elite. Some commentators, however, do not accept such cultural explanations. They assume that the salience of territorycorrespondsprimarilyto the state'ssecurityand materialinterests.86On this view, such interstatedisputes accord well with realistexpectations that territoryconstitutes a possession over which states fight to maximize absolute or relative power. Nevertheless, systematic analysesof these conflicts provide contraryevidence. Disputes frequently arise over territoryof negligible strategic or materialvalue.87States take inordinate Among the most escalatorycatsecurity risks in claiming materially unimportant territory.88 of territorialdisputes are irredentist claims involving geographic areasof historical or egories cultural significance.89Weak states frequently initiate territorialdisputes with powerful states despite the risk of escalation.90Some findings are so dramatic that scholars postulate that the explosive characterof territorialMIDs may reflectthe influence of innate human tendencies.91 That observation would suggest not that territorialdisputes are inevitable or intractable, but only that, when raised, they tend to be associatedwith especiallyvolatile or destructive behavior. Other scholars attribute the disproportional importance of territory to the symbolic and emotive power of nationalism, cultural heritage, and, on occasion, ethnic affiliation.92As Paul84 This MID of a examinesparticular is, by part thestudy pattern-that whenanissue-specific is followed an that this the that and of alliance thenanother MID,regardlesstype. explains "[p]osing pattern wayassures Vasquez in with is alliance [one SeeVasquez, note supra steps making ofthecommon towar] connected involvement MIDs." 64, at 21. 85 Id.Allthree the between of The variables statistically are in pattern disparities significant thisanalysis. same addiWhen these rivalries added. are MIDsholds when variables arms andenduring for races different independent into are MIDsare lesslikely escalate war(.686)than still to variables included, tional (1.127) policy foreign regime the rivalries races MIDs Id. for orterritorial (1.533). Withthevariables arms andenduring however, variincluded, MIDsis no longer ableforregime statistically significant. 86

with STUD.Q. 97, 100 (1983) (makingrealist to War:AnAnalysis 27 andBehavior, INT'L assumption ofAttributes

and Road & schools thought); of S. Charles Gochman Russell Leng, (1992)(discussing J. Realpolitik the competing87 See, e.g., PAULK. HUTH, STANDINGYOUR GROUND: TERRITORIAL DISPUTESAND INTERNATIONAL

POLITICS CHANGESAND INTERNATIONAL See, e.g., GARYGOERTZ & PAUL F. DIEHL, TERRITORIAL

of and to borders a state). to, within, contiguous national respect territory

costs territorial countries, CONFLICT Moreover, (1996). may possessions impose ondeveloping retaining expansive areas. over control vastgeographic Cf.K.J. of find to and many which it difficult maintain security administrativeAND INTERNATIONAL ORDER, 1648-1989, HOLSTI, PEACEAND WAR: ARMED CONFLICTS at 309 (1991);

& GOERTZ DIEHL, supranote 86, at 20. 88 See,e.g., HUTH,supranote 87, at 94, 188. 89 the Ethnic or A. Culture Contiguity: See, id.at 82-84, 110-11; cf Errol Henderson, Conflict, Similarity e.g., RESOL. (1997). 649 ofStates,and the Onsetof War,1820-1989, 41 J. CONFLICT

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

note MAP in in Interrelated Notions TerritorytheArab-Israeli Conflict, A ROAD TOWAR, supra of Spaces: Symbolic 62, at 3, 16.

92 Cause ntera Between States Central note78, at 4; PaulK. Huth, Why Territorial Are Hensel,supra of Disputes note 59, at 85, 100;DavidNewman,RealSpaces, in ABOUT WAR? nationalConflict? WHAT WEKNOW DO supra

91 Senese& Vasquez, supranote 72, at 277; VASQUEZ,supranote 48, at 151-52.

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for Henselexplains,"Inshort,territory arguedto have'a psychological is importance nations disor thatis quiteout of proportion its intrinsic to value,strategic economic,'and territorial and seemto arousesentiments prideandhonormorerapidly moreintenselythanany of putes or othertype of issue."93 of Regardless whetherhumantraits,nationalism, othersocialinstiturn tutionsexplainthe importance territory, is notablethattheseexplanations of it generally arealsoremarkon popularor elitesupportfor escalatory Thesetheoretical action.94 insights of the ablyconsistentwith studiesthatdemonstrate significance domesticpoliticsfor leaders' or abilityto deescalate settleterritorial disputeswith otherstates.95 to To summarize precedingdiscussionof issuesleadinggovernments wagewar,interthe issuesareespecially stateconflictsframed and aroundparticular charged strategic symbolically to escalation.The MID studiesincludehighly useful, though admittedlyimperfect, prone the proxiesfor understanding consistencyand magnitudeof those empiricalpatterns.A to is whetherpersuasive effortsundertaken politicalleaders justifythe by question remaining resortto forcecan shapepopularand elite conceptionsaboutthe natureof the dispute. I In the followingdiscussion, arguethatthoseresults can,andshould,be expected.I discuss hostilitiescan frame-or how the officialpromulgation pretextual of for rationales escalating reframe-sharedbeliefsandattitudes abouta conflict,includingthe issuesat stake.I alsoanaaction. constrain lyzehow such effortscan, albeitunintentionally, subsequent governmental as a secondary I brieflydiscusshow the promotionof such rationales effect, Finally, might, war. in for leaders who areinterested averting expandbargaining space socialsciIn war Thepolitics ofjustification. the studyof interstate and crisismanagement, boomerentistshaveidentified phenomenonalternatively a called"blowback,"96 "propaganda and or "strategic culture."98 These termsreferto situationsin which the imagery jusang,"97 tifications leaders to buildsupportfortheirpoliciesat one stageof hostilitiesconstrain that use theiractionsat laterstages.To be clear,a verydifferentset of studiesaddress cognitiveframein disworksthat distorthow actorsperceiveoptions,outcomes,and probabilities interstate inherein individual Those constraints rational on behavior By psychology. putes.99 generally In effects"inherein politicaland sociologicalprocesses.100 some cases, contrast,"blowback9394

adversarialrelations 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 promise or defuse issues ... even when one side faces strong international constraints against doing so") (citing

Hensel, supranote 78, at 4 (citationomitted). to note 87, at 183 ("Domestic See,e.g.,HUTH, supra politicswouldoften leadforeignpolicyleaders maintain

studiesthatshow "themainreason thoseincentivesto actforcefully."); note 74, at 389 (describing Vasquez, supra comwill reasons, not let decisionmakers disputesrecuris thatdomestichard-liners, usuallyforethnicnationalist95 Simmons, supra note 38. 96JACKSNYDER,MYTHS OF EMPIRE: AMBITION41 (1991); AND INTERNATIONAL DOMESTICPOLITICS Stephen Van Evera, Causes of War, at 400 (1984) (Ph.D. Dissertation, University of California, Berkeley) (on file

A. BikashRoy, Intervention RES.303 (1997)); Huth, supranote 92, at 100. Across 34 Borders, J. PEACE Bisecting

Winter with author);cf. StephenVan Evera,PrimedforPeace: SECURITY, Europe Afterthe ColdWar, 15 INT'L 1990-1991, at 7, 22. 97 Politicsof Rules theDomestic and or Intervention: International GregJ. Rasmussen, Aggression Humanitarian MinneStudiesAssociation, Threat at (1998) (paperpresented the annualmeetingof the International Perceptionapolis, MN), at . 98CHARLES A. KUPCHAN,THE VULNERABILITY EMPIRE (1994). OF 87

IN AND MISPERCEPTION INTERPERCEPTION JERVIS, Conflict, 17 INT'L POL. SCI. REV. 179 (1996); ROBERT NATIONAL POLITICS & (1976); cf GELLER SINGER,supra note 66, at 33-40. 100Cf SNYDER, frombeliefs"boundup with note 96, at 31 (distinguishing supra cognition-based explanations the social order, the political balance of power within it, its legitimation, and the justification of policies favored by particular social groups").

99 M. 4 Relations and J. Goldgeier& P. E. Tetlock,Psychology International Theory, ANN. REV.POL.SCI.67 International and The Aversion, (2001);JackS. Levy,Loss Theoryfor ofProspect Framing, Bargaining: Implications

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these effects can result from deliberate efforts by political opponents to use leaders'own policy justifications and factual representations against them. In other cases, these effects can result from processes of socialization in which individuals internalize images and form collective beliefs about the situation based on the way the dispute is framed. Analysis of blowback effects can illuminate important interactions between international and national levels of political organization. The invocation of international legal norms by leaders-as well as factual representationsthat legal categoriesencourage leadersto make- can For shape the content of political discourse.101 example, in order to pursue a bellicose military agenda, legal norms limiting the use of force to self-defense may encourage leadersto represent the rivalstate as incorrigiblyhostile and to representunfolding events as an impending security threat. Popular or elite views that form on the basis of these images and associatedjustifications can restrictleaders'freedom of action in later phases of the conflict (for example, the ability to make conciliatory gestures toward a rival). Empiricalstudies have identified these effects acrossdifferent domestic political systems. For instance, Andrew Cortell and James Davis posit that "domestic actors-state or societal- can appropriate international norms and rules to further their interests in the domestic political arena," and that through such appeals those norms and rules may "under some conditions As influenc[e] the type of policy a country pursues."102 one of their case studies, Cortell and Davis examine the U.S. domestic political processes following Iraq'sinvasion of Kuwait. Specifically, the authors analyze President George H. W. Bush's assertion of the international norm of collective security to justify a U.S. military response to Iraq.103"Through these repeated invocations, the president enhanced the salience of the collective security norm At domestically, and in doing so, framed the terms of the subsequent domestic debate."104 two the presimportant junctures, Congress later employed the collective security norm to compel ident to abandon a unilateralstrategyand to seek, instead, a UN mandate:first,to enforce trade Cortell sanctions through a militaryblockade, and second, to drive Iraqiforces from Kuwait.105 and Davis conclude: "Principally, President Bush's appropriation of the collective security norm to justify a U.S. response to the Iraqi response ultimately enabled the Congress to constrain his range of responses to the Iraqi invasion."106

In Mythsof Empire: Domestic Politicsand International Ambition,JackSnyderidentifiesdeeper forms of socialization that may result from leaders' efforts to justify the escalation of hostilities with another state. He hypothesizes and ultimately concludes that logrolling among domestic political coalitions explains incidents of self-defeating expansionism by powerful states. The empirical evidence compels Snyder to conclude that blowback effects have significant explanatorypower.107 In severalcasesthat Snyder studies, government officials and opinion leaders promulgated "strategicmyths" to justify expansionist policies, and these imagesthat states'employingjustifications conformto interCf LEBOW, supranote 42, at 29, 34-35 (discussing notes 39-45. nationallyacceptedstandards); supratext accompanying 102 Matter? Domestic The Institutions AndrewP. Cortell&JamesW. Davis,HowDo International oflnterImpact nationalRules Norms,40 INT'L and STUD.Q. 451, 471 (1996). 103 Id. at 464-71.104 Id. at 466. 105 Id. at

101

465.

106 Id. at 469.

that to so note96, at314 ("Insomecasesideologywas integral thepolitical SeeSNYDER, supra process it played what the individual'interestgroups'wanted.... Sometimesideologicaldynamics a centralrole in determining to But the merelyexaggerated outcomeof interestgrouplogrollingand madeit harder reverse. in otherinstances that blowback outlivedthe politicalcircumstances gaveriseto thestrategic ideologies.In thiscase,withideological at to out reference ideologythereis no explanation all.");seealsoid. at 63.

107

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were internalized by members of the public, elites, and, at times, proponents of the rationalFor izations themselves.108 example, in the Crimean War, members of the British ruling party promoted conceptions of Russianhostility and other security-basedrationalesto justify foreign military ventures.109The same leaders later found themselves unable to rescind bellicose policies due to hardened public and elite opinions formed around the original myths.110In a comparable effort to justify military ambitions, leaders of Wilhelmine Germany supported strategic myths about the aggressiveintentions of potential adversaries(Britain and Russia), the definition of a favorablebalance ofpower, the German nation's relativestrengths, and the prospects of success."1 The German leadership was subsequently unable to change course once powerful domestic actors internalized those conceptions. The domestic groups came to expect and demand aggressivebehavior abroad and became increasingly unable to recognize flaws in contemporary policies."2 Notably, other scholars' examinations of the historical cases largely support Snyder's conclusions.113 In addition, Charles Kupchan extends these theoretical foreign policy agendas explanations to strategicmyths used to justify self-defeating cooperative (not only self-defeating competitive agendas)."14 As these historical cases suggest, blowback effects may occur (with some variation) across different regime types-that is, across a range of domestic political systems. This point may appear surprising. One might suppose that illiberal states would be relatively unresponsive to public opinion and thus not susceptible to blowback effects. On this view, such regimes lack internal mechanisms of accountability to exert pressure on governmental leaders. Recent researchon state behavior and military conflict, however, provides a more nuanced account. That research suggests the importance of disaggregating illiberal states and understanding internal constraints on political coalitions in nondemocracies.115Specifically, Snyder finds that two types of regimes are highly prone to experiencing blowback: nondemocratic regimesId. at 310; seealsoid. at 41-42 (discussing fromjustifications associated a moralmission). with blowback effects 109 at 154, 165-74. Id. 110 and betweenrhetoric reality, himselfcoulddistinguish See,e.g., id. at 179-80 ("Butif Palmerston manyof lettersto Britain's his supporters could not, and sometimeshe felt constrained act on his rhetoric.Palmerston's to remindthemthat'theeyesandthoughtsof all Englandarefixedon this negotiation' continually peacenegotiators and constantlytryingto stiffenthem againstconcessions."). 11Id. at 75-80, 84-91. 112 See, the in had participants the logrolling fullyinternalized mythsof empireandcone.g.,id. at 102 ("[M]any true unableto recognize the bigstickpolicieswerefailing.Thiswasespecially of the Protestant, that sequentlywere reasons... andwereappalled what mobileprofessionals, votedforthe fleetforideological who urban,upwardly by weakstanceof the Germangovernment they sawas the criminally duringthe Moroccancrisis.")(citingROGER108

WE MEN WHO FEELMOST GERMAN: CULTURAL STUDY OF THE PAN-GERMAN A LEAGUE, CHICKERING, AND NATIONALISM RESHAPING THEGERMANRIGHT:RADICAL 1886-1914, at 261-66 (1984); GEOFFELEY,

POLITICAL AFTER CHANGE BISMARCK (1990)), 104 ("Thoughthe elites helpedshapemasspreferences, they elite whennewlyemerging groupsfound foundtheycouldnot limitthemasspassions theyhadunleashed, especially to they could use nationalist arguments flog the more cautiousold elites."). 113 note 98, at 9, 23 ("Torallydomesticsupportfor extraordinary See,e.g.,KUPCHAN, supra policies,decision makers specificstrategic imagesto the polity-molding conceptions.But by sellingpowerfulstrategic propagate the community--elites unwitdecision-making publicopinion and reshaping rolesand missionsof the broader and in themfromreorienting culturethatlaterprevents grandstrategy avoiding tinglyentrapthemselves a strategic POL.80, Failedin 1914, 38 WORLD 87-102; StephenVan Evera,WhyCooperation behavior."), self-defeating 83-99 (1985); Van Evera,supranote 96, at 18-20. 114 in Britishand Frenchcooperative KUPCHAN, supranote 98, at 130-84, 213-67 (discussing strategies the theaterpreceding WorldWarII). European115DAN REITER& ALLANC. STAM, DEMOCRACIES WAR 23-25 (2002); H. E. GOEMANS,WAR AND AT THE CAUSESOF WAR TERMINATION PUNISHMENT: AND THE FIRSTWORLD WAR (2000); H. E. Goemans,

RESOL. (2000). Notably, Survival: Fateof eaders theDurationofWar,44 J. CONFLICT The and 555 Fightingfor the researchers borrowfrom Snyder's framework. REITER STAM, & supra,at 24; Goemans,supra,at 559.

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He governed by cartelsand democratic regimes with significant cartelization.116 identifies two featuresthat accentuate blowback effects in such cases. First, logrolling among cartels encourages the maintenance of strategic myths."17Second, a free press and open political space-institutions that illiberal states lack-provide important checks on strategic mythmaking.118 Members of the cartelizedgroups internalize (or fail to distinguish strategicfrom genuine) discourse justifying military expansion; they can also become entrapped by justificatorydiscourse used to mobilize mass support for the military effort."19 To help explain internalization, Snyder'sfindings can be usefully supplemented with studies of"bureaucratic politics." Lebow contends that once governmental leaders have propounded a guiding rationale and beliefs with respect to a crisis situation, subordinate organs and individuals within the governmental bureaucracyare often loath to contest, and eager to substan21 tiate, those commitments. 20 Lebow calls this dynamic "cognitive closure." Another scholar has appropriatelyredescribedthe dynamic as sociological in nature, however, and has thus conceptualized the effect as "socialclosure."'22In a similar vein, Kupchan identifies institutional effects that produce bureaucraticconformity: "Evenif strategicimages arecraftedprimarilyfor public consumption, they graduallyspreadthrough the top-level elite community, the bureaucracy, and the military services.They become, as it were, organizing principles for the broader decision-making community."'23As a result, members of the bureaucracybecome less directed by "inference-based strategic pragmatism" or by "strategic conceptions informed by logic alone."124The originating rationales, along with associated beliefs about the conflict, shape their subsequent actions. The politics of justification contain three lessons for regulating humanitarian intervention. First, the institution of war is often founded upon a process of justification, with audiences potentially including the public, elites, or members of the governing coalition.125Second, the rationalesthat leaderscontrive to justify hostilities can meaningfully shape the content of social and political discourse. Accordingly, there are strong reasons to believe that justifying hostilities on the basisof humanitarianpurposes can shift the terms of the conflict by disrupting competing rationales or, more affirmatively,by establishing humanitarian issues as the dominant framework for the dispute. The articulation of a humanitarian justification can producetheoretical note 96, at 308-11; cf Cortell& Davis,supra note 102, at455 (organizing SNYDER, supra expecalso to tationsaccording regimetypes).Snyderconcludesthatdemocracies with weakercartelization succumbto and that blowback effects.Snyder, note 96, at 309 -10. AlthoughSnyder supra suggests mediafreedom openpublic debateshouldhelp to diminishthoseeffects,id. at 310, a recentcasestudyof the presentIraqconflictcastsdoubt and on the strength suchdemocratic of Threat checks,seeChaimKaufmann, oftheMarketplace Inflation theFailure that individual SECURITY(2004). Snyderpostulates 5 dictatorships ofIdeas:TheSellingoftheIraqWar,29 INT'L will succumbto blowback effectswhen the top leadership internalizes myths.SNYDER,supranote 96, at strategic18, 309.116

& cf. REITER STAM, supranote 115, at 24-25 ("Thereasonthat mixed to makesthem especially aremost vulnerable thattheiroligarchic is of governance susceptible logsystem regimes that mythmaking makesexpansion rollingcoalitions.... Suchsystemsarealsomorelikelyto fallpreyto imperial seem falselyappealing."). 118 SNYDER, supranote 96, at 17, 31, 312-14. 119 at 17, 41-42. Id.117 SNYDER, note 96, at 35-37; supra120

LEBOW,supra note 42, at 153-54, 293. Id. at 154. 122 Rasmussen, supra note 97; SNYDER,supra note 96. 123 KUPCHAN,supra note 98, at 92. 124 Id. at 492-93.121

125 This intervention. rule is in relevant considering effectsof a permissive forhumanitarian the process especially warsIndeed,the pretextobjection- concernthatstateswill use a humanitarian exceptionto justifyaggressive of implicitlyrelieson this understanding the politicsof persuasion.

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(through various causal pathways such as strategic manipulation by political actors, internalization by relevant members of society, and bureaucraticconformity) a new normative equilibrium and shared beliefs about the conflict, its aims, the interests at stake, and the attributes and inclinations of the opposing state. Third, an important consequence of new beliefs and normative commitments taking root is the constraint placed on subsequent action. Though slightly dramatic, one scholar describesblowback effects as "the Procrusteanbed that decisionmakerscreate for themselves when, afterpersuading the public of a theory which justifies [military] expansion, they can no longer diverge from it.""26In short, these effects suggest the potential strength and durability of humanitarian justifications for escalating hostilities. These insights can help addressviews that skeptical readersmight hold about the process of war: that the fundamental cause of a war-the underlying conflict of interest between two states-is real and cannot be suppressed simply by promulgating different justifications. To sharpen this point, a skeptic might argue that the proper implication to draw from studies showing that territorialMIDs escalate into war is that those states have an outstanding territorial problem driving them toward war-a situation that is left unaltered by a new, or newly characterized,dispute. Of course, there is some truth to this perspective, and many wars will That said, this view relies on a narrow conceptual understanding of the orinot be affected.127 ofwar. As one example, much scholarlyattention has been given to "diversionarytheories gins of war"as a path to interstate conflict. Various studies suggest that leaderswho pursue aggressive foreign policies to deal with domestic political turmoil will create or accentuate international disputes.128 Foreign ambitions may also derive from less calculative, more prosaic efforts of political actors to gain or maintain popularity. The question is whether international institutions can direct those political ambitions toward more peaceful outcomes by opening avenues for other types of interstate claims to be raised. Additionally, the skeptic's view erroneously relies on a sense that wars result from a unitary cause or motivation. Instead, the initiation of a war frequently serves multiple foreign policy objectives and interests (for example, preserving a regional balance of power, global prestige, open sea lanes, alliance relations).'29Which objectives are emphasized by officials and which interestseventually define the principalframeworkofthe dispute can be relativelyflexible. Similarly, leading blowback studies show how foreign policy behaviors can result from the harmonization of diverse domestic interests (for example, logrolled coalitions among parochial groups), though not openly expressed as such; instead, public rationales are offered to legitimize policy, and numerous options exist for how these public representations might be strategically framed.'30Once again, a goal for international institutions is to encourage representations that avoid explosive, uncontrollable consequences. Finally, it is incorrect to interpret the empirical studies of MIDs as inconsistent with the insights presented here concerning the politics of justification. Indeed, some of the principal researchersspeculate that highly plausible explanations of their findings include politicalin Problem" International The "Goldilocks and RichardRosecrance, Overextension, Vulnerability, Conflict: SECURITY 149 (1995) (reviewessay). 19 INT'L 145, Strategy,126 127 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 JackS. Levy, The CausesofWarandthe ConditionsofPeace, 1 ANN. REV.POL. SCI. 139, 151-57 (1998) (discussing the literature on "societal-level"explanations, especially including diversionary (such as scapegoating) the-

oriesof war).129 130

In thanmerebeliefsor perceptions. manycases for ideologyrather justifications policyand elementsof a strategic the conceptsunderlying policy of securitythroughexpansioncameclose to self-contradiction."). the

See, e.g., HOLSTI,supra note 87, at 271-84. See, e.g., SNYDER, supranote 96, at 76, 306 ("The very structure of these ideas suggests they were ex post facto

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effects.PaulHuth blowback in opportunism the initialframingof a disputeand subsequent to statesthat"[c]ompared ... conflictsof politicalideologyandregimechange,I wouldargue and of and drawon popular elitesentiments patriotism nationthatleaders moreeffectively can effectsof this Huth also suggestsblowback claims."131 alismto justifysupportfor territorial strategy: can While nationalism be used to mobilizedomesticsupportand undercutpolitical .... Havinginvoked it alsoconstrains diplomatic the optionsof stateleaders opponents, territorial to legitimize nationalist claims,leaders up openthemselves to charges principals concessionsto settlea termakesubstantial of hypocrisy deceitif they subsequently and once reliedon to build supportcan also be ritorialdispute.Thus nationalist arguments the Put and usedto discredita government its leadership. differently, domesticpolitical to in territorial shouldbe highercompared most other costsof accommodation disputes to issuesgiventhatrulingelitesaremorelikelyto drawon nationalism justify policy foreign theirpolicyposition.'32 in nationalism theirthebut makea similar SeneseandVasquez argument do not emphasize issues-territorialclaims-are vulnerIn theirview,the mostincendiary oretical explanation. of and due ableto exploitation to an assortment cultural politicalfactorsthatimbueterritory effectsfromleadto with special salience. Similar Huth, SeneseandVasquez identifyblowback ers'effortsto justifyforeignambitionson groundsthat fosterbellicosedomesticattitudes: issuesto rideto power,but theseissuesarehighlysusceptible [L]eaders useterritorial may find so theirown domestichard-line to creating constituencies, leaders themselves pushed in hard-line actionsuntilthe issuewasresolved favorof the state.Such to takeincreasingly MIDs aremoreproneto fatalities evidencethatterritorial a logicis consistent with existing and to warthan othertypesof MIDs. Given thesefindings,it is plausibleto expectthat and MID aregoingto be lesshesitant lessableto resist who do engagein a territorial leaders MID andwho will be who initiatea nonterritorial to to escalation war,compared leaders morewillingand ableto "bailout" if pursuingthe disputeseemstoo costly.133 of At this point, it is importantto note how the plausibility a humanitarian justification to its We determine effectiveness. shouldexpecta humanitarian justification gainpolitmight a If credible. a government icaltractiononly if it is sufficiently promulgates highlyimplausible rationale wouldnot increase forusingforce,the proffered reason politicalsupportforthe milwould effect(sincethejustification a nor itaryinitiative, wouldthe rationale produce blowback and of not havetakenhold). What factorsaffectthe plausibility a humanitarian justification follow? what implications will of rationale dependon the factualconditionsin First,the plausibility a humanitarian will be perceivedas plausible-and accordingly state D. A humanitarian gain justification traction-if gravehumanrightsviolationsarebeing committedin stateD. Imporpolitical The has the narrows casesin whichthejustification practical significance. tantly,thisconstraint the conditionsin stateD fit (orapproximate) reason casesarethosein whichthefactual relevant of to effectsareunlikely resultfromthepromulgation a humancitedforusingforce.Blowback but in rationale casesthatfalloutsidethoseparameters, the pretextobjectionis negated itarian existwith any legalexceptionto the prohiin those cases,too. Indeed,the sameconstraints a bition on usingforce.That is, stateR would not receivea politicalbenefitfromproffering that fails basisfor intervention clearly to accordwith actualeventson the ground. permissible131

132133

Huth, supra note 92, at 100. Id. at 101 (citations omitted). Senese& Vasquez,supranote 72, at 277-78 (citationsomitted).

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StateR, for instance, would not obtaina politicalbenefitin claimingthe rightto self-defense when stateD exhibitszerothreatof a military attack.In short,the politicsof justification may be effectivein garnering politicalsupportfor the use of force-and in producingblowback limit Thesefactors effects- but onlyin casesin whichthe factual is predicate atleastplausible. the rangeof casesin which the humanitarian pretextis usable,and they can explainwhy the in invocationof humanitarianism certaincaseswill not producemeaningful politicaleffects. of Second,the plausibility a humanitarian maydependon how it is expressed justification versionof thepreto in conjunction with otherrationales usingforce.According a standard for conceal ulteriormotives.On its text model, stateR will employa humanitarian exceptionto the wouldsuppress articthisview,the availability an authorized of humanitarian justification Rwouldhavedifficulty proin state for ulationof otherreasons escalating hostilities. Similarly, is as claiminghumanitarianism the reasonfor using force if the proclamation superficially whilemilitary A to attached existingobjectives. meager, to reference humanitarianism formal of for effortsareobviously shouldnot obtainthepoliticalbenefits a pubpursued otherreasons use of force.The importantpoint is that stateR will need to investconsidlicly legitimated less exclusionof other (generally erablyin a humanitarian rationale-possibly to the relative rationale usesof a humanitarian reasons. This factormaypartially why past justifiable) explain was failedto gainmeaningful traction,even thoughthe factualpredicate potentially political of meritorious issuethatI explore withrespect the UnitedStates' later to 2003 invasion Iraq). (an can rationale Someof the pointsjustdiscussed mightcastdoubton whethera humanitarian that alterthe courseof eventsif leadershavealready on embarked differentjustifications; is, a fromreframing disputealonghumanitarleaders may publicrationales preclude preexisting analthe ianlines.Thisobservation a raises legitimate concernbutdoesnot undermine present alterof the foreclose promulgation rationales ysisof UHI. First,to the extentthatpreexisting about nativerationales, pretextobjectionto legalizing the UHI losesits force;thatis, concerns if leaders unableto are states'abuseof a humanitarian or exceptionaremisplaced exaggerated succeedwith a justification afterhavingespousedan earlierone.134 Second,such considerif anything,add supportto the ationsregarding impactof preexisting the rationaleshould, The of of fashioninginstitutionsto takeaccountof empirical patterns statepractice. project Accordof earlylock-inssimplyhelpsto establish tasksfor institutional the design. prospect the in partIII, I proposesome institutionalreformsto encourage earlyand emphatic ingly, of in articulation humanitarian disputes.Third, recallthat the studieson purposes interstate MIDs recognize multipleissuesmightbe atstakein a dispute.The questionis:whichissue that claimneednot combecomestheprincipal claimraised therevisionist state.A humanitarian by or claim;in such cases,it is morea matterof emphasis.135 pletelyreplace retirean earlier if the assertion humanitarian of claimsonly supplements-ratherthandisplacesFinally, otherissues,a roadto warmayyet be averted.One meansfor defusinga crisisinvolvesissue conflictresolution of issuescanfacilitate the linkage. Accordingly, introduction humanitarian Moreissuesin a dispute.'36 with other for by expanding opportunities trade-offs bargaining whenthe crises over,studiesof international suggestthatissuelinkageis morelikelyto succeednote 127. 134 Indeed,the samemay be said for the skeptic'sargument above.See supratext accompanying Also recallthat evenif an interstate is rivalry dominatedby otherissues,whethera lone incidentconcernsa of affectthe maintenance peacebetweenthe rivals.See territorial, foreignpolicy,or regimeissuemaysignificantly notes 84-85. supratext accompanying 136 and Diehl, supranote 60, at 338; MichaelD. McGinnis,Issue Linkage theEvolution CoopofInternational 141 RESOL. (1986); cf. MANSBACH VASQUEZ, & eration,30 J. CONFLICT supranote 60, at 200-01.135

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salienceascribedto an issue is differentfor the disputingparties'37-a situationwe should expectto occurwhen the issue involveshumanrightsconditionsin one of the countries. As Anothermeansfor defusinga crisisis to facilitate face-saving compromises. Seneseand otherdisputedissuescan propelleadersunwittinglyto a point at which they Vasquezposit, issuesmightreduce havetrouble"bail[ing] out."In thiscontext,the additionof humanitarian accordto related crisis An thepoliticalcostsof sucha reversal. "important bargaining," finding issues by ing to a leadingreviewof the literature PaulHuth, is thatthe inclusionof secondary can allowleadersto takepoliticallysensitive,pacifyingstepsthat avertwar: and and [D]iplomaticpoliciesthat includeflexibility a willingnessto compromise negoto tiateon secondary combinedwith a refusal concedeon vital securityissues... issues, the canhelpleaders attacker of fromtheirthreats reducing domesticor statesto retreat by can Leaders international costs of backingawayfrom a militaryconfrontation. political a majorgain, or that a defender's claimthat defenderconcessions certainissueswere on In to willingness negotiatewas a promisingdiplomaticdevelopment. eithercase,foreign to can policyleaders use evenlimitedaccommodative diplomaticactionsof the defender of who fend off domesticor foreignpoliticaladversaries claim that the government the would-beattacker statehas retreated underpressure.38 issuescan provide In Huth'sown workon territorial disputes,he notes that humanitarian for thesetypesof opportunities deescalation: to [T]o inducethe challenger makeconcessions,the termsof a settlementneed to be and so can of formulated thatleaders countercharges appeasement capitulation. Thus, if on claimsto territory to bewithdrawn, have someformof concessions the target policies by to withinthe disputedterritory of maybe critical pack(e.g.,treatment ethnicminorities) a politically viableagreement.39 aging needto be perceived Forsucha tacticto work,however, secondary the issuewouldpresumably as a genuinepartof the dispute. Two conflicts-the Kosovointerventionand the recentIraqwar-will help to illustrate that theseclaims.The abovediscussionanalyzes consequences mayensuewhen a revisionist each humanrights belli.The KosovoandIraqconflicts stateproffers violations a casus as foreign illuminate involvedsuchframingeffortsby revisionist states.Both casestherefore potentially some of the consequences that could ensue were states (legally)encouragedto set forth a for humanitarian justification usingforcein otherdisputes. the Consider the Kosovointervention. first fit, Althoughnot a perfect the conflictillustrates the case in for settlements a multi-issuedispute.More specifically, opportunities face-saving an rationale preventall-outwaror deescalate existingconcan indicateshow a humanitarian for initiatingforce, flict. As I discussshortly,havingproffereda humanitarian justification the NATO leaders wereableto makepoliticallydifficultconcessionsand deescalate conflict some of beforeit turnedinto full-scale, warfare. Kosovoconflictthus showcases The ground of the mechanisms couldservethe interests peaceat these humanitarian justifications whereby and otherstagesin a dispute.137

T. Clifton Morgan, IssueLinkagesin International CrisisBargaining, 34 AM. J. POL. SCI. 311, 322-33, 329 Paul K. Huth, DeterrenceandInternational Conflict:EmpiricalFindings and TheoreticalDebates,2 ANN. REV. supra note 87, at 190-91.

(1990).138

POL.SCI.25, 38 (1999).139 HUTH,

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The use of force by NATO led "only to a limited military intervention,"140 and the conflict deescalatedonce NATO (and Milosevic) found political space to make significant concessions. The intervention served multiple interests: securing regional stability, maintaining the credibility of NATO, and protecting human rights.141Notably, some commentators doubt whether the last of these rationales genuinely motivated NATO's actions.142We need not resolve that particularquestion here. It is worth noting, however, that if the official humanitarianjustificationswere disingenuous, the Kosovo intervention would serveour analytic purposes even better. Regardlessof which motivations actually inspired them to act, when government leaders made the commitment to use force, they expected that Milosevic would quickly capitulate.143Once the conflict was under way, however, member states became increasinglyconcerned that NATO would have to escalateto ground warfarein order to obtain the concessions initially demanded ofMilosevic.144 Indeed, President Clinton and other leaders- especially in Germany and Italy-were reportedly searching for an opportunity to claim success and bring the conflict to an end. 145 NATO ultimately obtained guaranteesfrom Milosevic for the protection of Kosovo Albanians but compromised on other significant demands. Political leaderssecured an imperfect peace and claimed victory. Notably, some close observers of the conflict argued that NATO had abandoned some of the main objectives of the intervention.146 Champions of the intervention pointed to the achievements gained and the relatively low number of battle-related deaths.147In short, the availability of a humanitarian rationaleallowed NATO leaders,in Huth's terms, "to packag[e]a politically viable agreement" and "counter chargesof appeasement and capitulation"while retreatingfrom a major military140Jean-Marc Coicaud,

OF ture, in KOSOVOAND THE CHALLENGE HUMANITARIAN INTERVENTION, supra note 5, at 463, 469. 141NICHOLAS IN HUMANITARIAN INTERVENTION INTERNATIONAL J. WHEELER,SAVINGSTRANGERS: SOCIETY 265 (2000). 142 1 Law See,e.g.,Ian Brownlie,"International and theUseofForcebyStates"Revisited,CHINESEJ. INT'LL. 1, 11 (2002); Abdullahi A. An-Na'im, NATO on KosovoIs Badfor Human Rights, 17 NETH. Q. HUM. RTS. 229, 229-30 (1999); NOAM CHOMSKY,THE NEW MILITARY HUMANISM:LESSONSFROMKOSOVO (1999); cf Coicaud, supra note 140, at 470-74. 143 See,e.g.,Adam Roberts, NATO's"Humanitarian War" over Kosovo,41 SURVIVAL 102, 111 (1999). 144 & E. IVO H. DAALDER MICHAEL O'HANLON, WINNING UGLY:NATO'S WAR TO SAVEKOSOVO138WASH. POST., May 21, 1999, 39, 155-61 (2000); Steven Mufson, NA TO BattlesFrayingAlliance, Refugees'Needs, at A28; cf WESLEY CLARK, K. WAGINGMODERN WAR: BOSNIA,KOSOVO,AND THE FUTUREOF COMBAT 346-47 (2001). 145 CLARK, supranote 144, at 356-57; Jane Perlez, Clinton'sQuandary:NoApproach to EndWarIsFastorCertain ofSuccess,N.Y. TIMES,Apr. 29, 1999, at A16; Mufson, supra note 144, at A28; cf David P. Auerswald, Explaining Warsof Choice:An IntegratedDecision Model ofNATO Policy in Kosovo,48 INT'L STUD. Q. 631, 651-53 (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 ofveto. 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 ofYugoslavia, including Serbia, theJune 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. Michael Mandelbaum, A PerfectFailure: NA TO's War against Yugoslavia,FOREIGN AFF., Sept/.Oct. 1999, at 2, G. 4-5; cf WILLIAM O'NEILL, KOSOVO:AN UNFINISHEDPEACE28-31 (2002). 147 & See, e.g., DAALDER O'HANLON, supra note 144, at 192-94.

Democratic CulVersus Kosovo theDilemmas nternational and Solidarity Geostrategy: of

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that could"claim commitment terminating conflict.148In otherwords,NATO leaders and the off domestic concessions certain on issueswerea majorgain," [Milosevic's] thereby "fend[ing] of or foreignpoliticaladversaries claim[ed]that the government the would-beattacker whoAs state[s] ... retreated under pressure."'49 a more general lesson, these events indicate how a humanitarian justification in a multi-issue dispute can facilitate opportunities for leaders to bail out of militarized disputes that they do not want to escalate. Leaderswill not always seek opportunities to avert escalation, as the UK and U.S. actions in the recent Iraqwar demonstrate. The question is, then, whether the Iraq conflict is a counterexample to the preceding analysis.In that case the U.S. government included humanitarian intervention as one of the potential grounds for invading Iraq, and the conflict nonetheless ended in war. A single contradictory (or consistent) case would not, of course, either repudiate or confirm an analysis of aggregatetendencies of state behavior.'50Nevertheless, it is helpful to examine the Iraq conflict as a salient case of a humanitarian justification used to promote war. As the following discussion demonstrates, the Iraq conflict does not serve as a counterexample; the case is, instead, consistent with points made above. The Iraq conflict illustrates, in particular,the importance of the politics ofjustification and the ineffectiveness of an implausible humanitarian rationale. The political process leading up to the Iraq war shows the importance of justificatory strategies. Borrowing from Snyder's analysis of strategic myths, Chaim Kaufmann's case study of the war examines the theoretical significance of various rationalesthat the Bush administration promulgated for invading Iraq.15 Most importantly, the administration framed the conflict away from the previously dominant justification (Saddam Hussein's threat to the region) to a new justification (Saddam Hussein's direct threat to the U.S. homeland and citizenry). The

a latterrequired concertedstrategy depictinga threatthatlinkedHusseinto transnational of created framework terrorism weaponsof massdestruction and While the earlier (WMDs).152 mobilized framework a politicalconsensus the containment, subsequent supmilitary favoring A to portforan attack.153 usefulsupplement Kaufmann's analysis mightbe thatthe post-9/11 contextuniquelyamplified politicaleffectof the morerecentframework.154 the Independent on of 9/11, however,it was this generaljustificatory campaign- concentrating Hussein's directthreatto U.S. security-that ultimatelyled to the war. The Iraq mayillustrate significance security-oriented MIDs thatdatedbackto the war the of 1990s. Had the United Statesspent the previousyearsframingthose hostilitiesprincipally aroundhumanitarian than aroundIraq'smilitarythreatto the conditionsinsideIraqrather to region,it mayhaveprovenmoredifficultforthe U.S. government go to warin 2003. At the for as concerns a justification the 2003 Iraqwar least,the lateinvocationof humanitarian very havebeenlessof a causeforthe escalation hostilitiesthanwerethe MIDs in years of prior. may Moresignificantly, likelihoodof warmighthavebeenlowerhad the legalregimeencourthe forceforinterstate as humanitarian agedtheUnitedStatesto promulgate objectives thedriving hostilitiesduringthat earlier period.HUTH supra note 87, at 190-91. 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?TheMarketplaceofldeas and the Iraq War, 29 INT'L. SECURITY 196, 200-01 (2005).149148

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The Iraq conflict also demonstrates how a humanitarianpretext will fail- either to ratioThatis, a humanitarian orto constrain leaders-if it is considered implausible. empower nale can produce constraining(blowback)effects only if it createsthe initial impression must be both believedand acceptedif it is to assumedby the pretextmodel:the justification The this socialeffects. explained As above,155 pointis straightforward. any produce meaningful will dependon thatstateR canachievein employinga humanitarian pretext politicalsupport the plausibility the justification. of turns,in significant part,on whetherthe facts Plausibility of the casematchthe justificatory rationale. justification Half-heartedly usinga humanitarian humanof the for to asa supplement otherreasons waralsoundercuts plausibility the asserted we is itarianrationale. And if the rationale unpersuasive, shouldnot expectits promotionto behavior influencein buildingpublicsupportor, as a result,in constraining exertsignificant on a blowbackmechanism. The roadto warwill be determined othergrounds. through not The humanitarian rationale invadingIraqwas generally believedor accepted.The for unlikepreviouscasesin which humanhumanrightsconditionsin Iraqwereconspicuously itarian interventionwas consideredappropriate.156 Indeed, former Deputy Secretaryof on "settled the one issuethateveryDefensePaulWolfowitzadmittedthatthe administration as one could agreeon whichwasweaponsof massdestruction the corereason"-ratherthan of "thecriminaltreatment the Iraqipeople,"which he believedwas by itself"nota reasonto ... As put Americankids'lives at risk."'57 SeanMurphyexplains,the agreed"justification a of for reflected publicrejection the argument a U.S. invasionbasedsolelyon humanitarian that the '58 Analyzing rhetorical the efforts Payneexplains the preceding war,Rodger grounds." relied butinstead didnot sellthewaron thebasisofa humanitarian administration justification for rationale the conflict humanitarian The on nationalsecuritythreats.159 administration's that cameto the foreonly afterthe militarydefeatof the Husseinregimeand the realization had no WMDs. Iraq the of that One mightassume evenif onlya smallfraction the publicbacked warforhumanitarianreasons,that supportmight havehelpedbuild a politicalbasefor militaryescalation. was thatthe humanitarian Thereis no evidenceto conclude,however, justification important eschewedpromoting if for any politicallysignificant group;160 anything,the administration such a rationalepreciselybecausethe public did not acceptit. The public overwhelmingly155 See

156 the and TomJ. Farer,TheProspectforInternationalLaw Orderin Wake oflraq,97AJIL621,626 (2003) ("[I]n to Kosovo... one couldplausibly emergency. arguethatNATO's attackwas responsive a genuinehumanitarian othermoments thanatvarious less In Iraqhumanrights violations werechronicandatthetimeof theinvasion severe as beenwidelyperceived humanitarian in recentIraqihistory.In no instancein recenthistoryhasan intervention wherethe supposedly violationswerechronic."). triggering 157 U.S. Vanwith SamTannenhaus, WolfowitzInterview Dep'tof DefenseNewsTranscript, DeputySecretary ity Fair(May9, 2003), at . 158 the SeanD. Murphy,Assessing Legality ofInvadingIraq,92 GEO.L.J. 173, 240 (2004). 159 NuclearThreat A. Payne, Deliberating Preventative War:The StrangeCaseof Iraq'sDisappearing Rodger and Intervention, at Center,WorkingGroupon Preventive Preemptive (2005) (paper Military presented Ridgway ("The Universityof Pittsburgh),at primary chemicalandbiological for rationale the U.S. attackon IraqwasSaddam Hussein'sallegednuclear, weaponsstockalso terrorism playedan importantrole in juspiles and programs. Iraq'ssuspectedconnectionsto international the or was mission,however; warwasnot tifyingU.S. action.The attack not sold as a humanitarian democratizing sold becauseHusseinwas a horribletyrant."). notes thata smallfractionof the publicfavoredinvadingIraqto 160Analyzing publicopinion data,Kaufmann the also does not indicatewhethertheseindividuals supported war protector liberatethe Iraqipeople.Kaufman wouldhavebeen use on independent to (forexample, preempt Iraq's of WMDs). If theydid,theirnumbers grounds whetherthey even less consequential. Kaufmann, supranote 116, at 31 ("Thefew polls that askedrespondents or would favorinvadingIraqfor objectives such as savingthe Iraqipeoplefrom Hussein,promotingdemocracy, oil showedonly smallminoritiesin favor."). safeguarding

supra pp. 128-29.

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favoredgoing to war-and overwhelmingly for national security reasons.In late 2002, "70 -90 percent of the American public believed that Hussein would sooner or later attack the United States with weapons of mass destruction."'16Matching the evolution of the administration's public positions concerning WMDs and terrorism,public support for the war "rosegradually and more or less steadily to 66 percent in March 2003,"162 and exceeded 70 percent around the time of the invasion.163Without the overriding belief in the evidence of Hussein's threat and U.S. security interests, Kaufmann concludes, "the administration probably could not have made a persuasivecase for war."'64He notes that the war "wasmade possible partly by support from 'liberalhawks' who would not have supported a foreign military adventure proposed by a Republican president unless it appearedessential to national security."'65The humanitarian pretext, in short, did not make a meaningful difference in the escalation of hostilities and should accordingly not be expected to have prevented the war. Nevertheless, public or elite support for the war along humanitarian lines may have exerted some associated blowback effects. The modicum of acceptance of the humanitarian rationale may have stimulated limited institutional effects (such as bureaucraticclosure or the empowerment of particularexpert groups). In the Iraq context, those effects, however, overwhelmingly lost to war-promoting frameworks employed to prove that Iraq violated the relevant Security Council armscontrol resolutions. A lesson from Iraqmay thereforebe that had greater incentives been provided to revisionist states to frame their military pursuit with emphasis on a humanitarian rationale, the blowback effects might have been amplified. Important allies also could not be convinced of a humanitarian basis for invasion. The British public, for example, was not moved by humanitarian justifications for invading Iraq.166 And in a secret memorandum to Prime Minister Tony Blair, the British attorney general concluded that the application of a humanitarian rationale to the case of Iraq was unconvincing: "Iknow of no reasonwhy [the doctrine of humanitarianintervention] would be an appropriate basis for action in present circumstances."167 Here, too, it appearsthat the humanitarian justification did not alter the outcome, because it did not gain sufficient traction as a ground for escalating hostilities. More generally, the Iraq conflict suggests broader lessons for the structure of the international legal regime. The availablegrounds for lawful use of force encouraged the UK and U.S. governments to emphasize both the gravity of Iraq'spurported breaches of the cease-fire resolution and the imminence of Iraq'sthreat to their homelands. The analysisof MIDs suggests that these justificatory strategies can escalate interstate violence. A broader question, not explored here, is whether the international legal regime has the effect of propelling states to take161

162

Id. at 30. Id. at 31.

INT'L. SECURITY 202, 206 (2005).

163 Centerfor the People & the Press See, for example,the surveyconductedon behalfof the Pew Research (March2