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Goodman - Humanitarian Intervention and Pretexts For War PDF
Goodman - Humanitarian Intervention and Pretexts For War PDF
*
ByRyanGoodman
I. THE MODELOFPRETEXT
WARS
TheLawAgainstUnilateralHumanitarianIntervention
19See,
e.g., Adam Roberts, The So-Called "Right"ofHumanitarian Intervention, 2001 Y.B. INT'LHUMANITAR-
IANL. 3; DANISHINST. INT'LAFF., HUMANITARIAN INTERVENTION:LEGALAND POLITICAL ASPECTS77-95
(1999), at <www.dupi.dk/www.dupi.dk/htdocs/enl 1240.ssi>; Tom J. Farer,An Inquiryinto theLegitimacyof
ORDER185 (LoriFislerDam-
in LAWANDFORCEINTHENEWINTERNATIONAL
HumanitarianIntervention,
rosch & David J. Scheffer eds., 1991).
20 For one of the most
persuasive arguments that UHI is lawful, see Christopher Greenwood, Humanitarian
Intervention:TheCaseofKosovo,1999 FINNISHY.B. INT'LL. 141.
21
THE CHARTEROF THE UNITED NATIONS:A COMMENTARY(Bruno Simma ed., 2d ed. 2002).
22
See Definition of Aggression, GA Res. 3314 (XXIX) (Dec. 14, 1974); Declaration on Principles of Interna-
tional 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 jus-
tification for the conduct of the United States ....").
24
See, e.g., ANTONIO CASSESE,INTERNATIONAL LAW373-74 (2d ed. 2005) (summarizing the legal author-
ity); IAN BROWNLIE,PRINCIPLES OF PUBLICINTERNATIONAL LAW710-12 (6th ed. 2003) (summarizing the
legal authority); MALCOLMN. SHAW,INTERNATIONAL LAW1046 (5th ed. 2003) (summarizing the legal author-
ity); PETERMALANCZUK,AKEHURST'SMODERNINTRODUCTIONTO INTERNATIONAL LAW221 (7th rev. ed.
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).
112 THE AMERICANJOURNALOF INTERNATIONALLAW [Vol. 100:107
ThePretextObjectiontoLegalization
of legal authority. As noted earlier,the concern that stateswould initiate wars by using human-
itarianism as a pretext constitutes perhaps "the most compelling"31 and certainly the "most
common"32 objection to legalization.33
In order to sharpen the argument, it is worth considering that similar prudential concerns
animated the framers of the UN Charter. States designed the use of force regime partly in
response to the perceived lessons of World War II. One of the haunting memories was Hitler's
use of humanitarianjustifications for military expansion. It is well known that Hitler invoked
the "rightof self-determination"of German nationals as a pretextfor his incursions into Austria
and Czechoslovakia.34Perhaps less well known is the striking resemblance between Hitler's
rhetoricand contemporaryhumanitarian initiatives. In a letter to Chamberlain, Hitler justified
his military objectives in the Sudetenland on the grounds that "Germans as well as the other
various nationalities in Czechoslovakia have been maltreated in the unworthiest manner, tor-
tured, . . . [and denied] the right of nations to self-determination," that "[i]n a few weeks the
number of refugeeswho have been driven out has risen to over 120,000," that "the security of
more than 3,000,000 human beings" was in jeopardy, and that the German government was
"determinedby one means or another to terminate these attempts... to deny by dilatorymeth-
ods the legal claims of oppressed peoples."35Hitler's rhetorical efforts reveal-perhaps in the
starkest terms possible-what is at stake with regard to UHI. Such concerns, however, help
only to focus, not to answer, the central empirical inquiry. Whether international legal norms
that are consistent with such diplomatic representationswould (or did) increasethe likelihood
of military invasion is a fundamentally different question. Whether a permissive legal regime
would increaseor decreasethe aggregatenumber of aggressivewars is also part of that empirical
quandary.36
It is helpful and important to identify the structureand empirical assumptions of the pretext
argument-the case against legalizing UHI. The argument relies on particularconceptions of
the relationship between state conduct and international legal norms. It assumes that interna-
tional law affects how states-particularly duplicitous, aggressivestates- orient themselves to
the international order. More specifically, the argument proceeds from the premise that legal-
izing UHI will affect, even if only on the margins, the use of force by such states. Otherwise,
the argument is a nonstarter. Though scholarshave advanced slightly different versions of the
31
Bartram S. Brown, Humanitarian Intervention ata Crossroads,41 WM. & MARY L. REV. 1683, 1727 (2000)
("Perhapsthe most compellingargumentagainstrecognizinga rightof humanitarianinterventionis thatit might
be usedas a pretextfor militaryinterventionactuallymotivatedby other,less noble, objectives.").
32
Dino Kritsiotis,ReappraisingPolicy
Objections toHumanitarianIntervention, 19 MICH.J. INT'LL. 1005, 1020
(1998) ("Themostcommoncriticismleveledat the rightof humanitarian interventionis thatitsincorporationinto
the systemof the lawof nationswouldenhancethe opportunitiesfor the abusiveuse of force,the long-termeffect
of which would be to bringthe internationalnormativesysteminto disrepute.").
33 Process:TheSpe-
SeeW. MichaelReisman,UnilateralAction andthe Transformations ofthe WorldConstitutive
cialProblemofHumanitarianIntervention,11 EUR.J. INT'LL. 3, 16 (2000) (describingpretextconcernsas "the
primaryjuridicalobjection"to legalizingUHI).
34
See,e.g.,AMOS YODER,WORLD POLITICSAND THECAUSES OFWARSINCE1914, at 58 (1986).
35 LetterfromReichChancellorHitlerto PrimeMinisterChamberlain
(Sept.23, 1938), in TheCrisisin Czecho-
slovakia,April24-October13, 1938, 19 INT'LCONCILIATION 433, 433-35 (1938). Hitleralso rallieda baseof
domesticsupportforhis initialmilitaryexpansionsby assertingthatforeigngovernmentswereflagrantlyviolating
the right of self-determinationof Germannationals.Extractsfrom Speechby ChancellorAdolf Hitler at the
NationalSocialistPartyCongressat Nuremberg,Germany(September12, 1938), in id. at 411, 412.
36
Using the Third Reichas an examplealso raisesquestionsaboutwhetherthe empiricalpatternswill varyby
regimetype. For a descriptionof those aspectsof the relevantstudies,see infratext accompanyingnotes 115-18
(discussingexpectationsof constrainingeffectson nondemocracies,democracieswith significantpoliticalcartel-
ization,and democracieswith weakpoliticalcartelization).
114 THEAMERICAN LAW
OFINTERNATIONAL
JOURNAL [Vol. 100:107
pretextargument,theiranalysesgenerallycontainsimilarelements,which constitutewhat I
call the "modelof pretextwars":
1. Staticcondition:The leadershipof a revisioniststate(stateR)37is motivatedby self-
regardingand aggressivepurposesto wagewaragainsta defendingstate (stateD)
2. Dynamic interactions:Expandingthe internationallegal exceptionincreasesthe
likelihoodthat stateR will wagewaragainststateD
Element A. State R undertakeseffortsto justifyescalatinghostilitiesin termsof
purposesthat conformto the new legalexception
Element B. The effortto justifyescalatinghostilitiesis undertakenin orderto con-
vinceactorsor institutionsto relaxpressurethattheywouldotherwise
applywerestateR to attackstateD
Element C. The actualor expectedreductionof pressurereducesthe costsof state
R to wagewaragainststateD
Other studies support aspects of the first and second elements: states undertake efforts to
justify the resortto force in accordancewith international legal principles, and these efforts are
intended to satisfy particular audiences. In a leading analysis of the origins of war, Richard
Lebow identifies a class of international crises in which leadersuse pretextualjustifications for
initiatingwar.42He explainsthat, acrossnumerous historicalcases, leaders"employedstrikingly
similarmeans,"if not a "formula,"43 in articulatingjustificationsfor war. One of the principal
step[s] in [this] formula for justifying hostility consists of legitimizing one's demands in
terms of generallyaccepted international principles. By claiming to act in defense of a rec-
ognized interest or right, leaders may succeed in masking aggression or at least in main-
taining the fiction of innocence. This may be very important to third parties or domestic
public opinion.44
Other scholars have made similar observations about the tendency of states to employ inter-
national legal justifications to persuade domestic and international audiences.45
In the balance of this article, I analyze the pretext model and some broader issues that it
raises. I do not contest all of the premises of the model. Instead, I offer an affirmativetheory
that shares some of the same empirical foundations. But my argument also diverges from the
pretext model in significant respects. First, exponents of the pretext model fail to articulate a
baseline of interstate hostilities for measuring the effect of legalizing UHI. It must be remem-
bered in this context that the level of militarized conflicts is alreadyhigh; one vital question is
whether legalizing UHI might substantially discourage some of those conflicts from erupting
into war.
Second, the pretext model does not adequatelyconsider relationshipsbetween international
and domestic political process. Analyzing structuralrelationships between these two domains
should help in determining the consequences of legalizing UHI. Indeed, the model seemingly
accepts what some scholarshave called "the felt need for justification"46-the desire of leaders
to show that their actions conform to international legal norms. Such justificatory appeals,
however, have ramifications on the domestic political sphere that are not envisaged by the
model. In the discussion below, I consider such ramifications.47I also consider how affected
domestic political processes can, in turn, influence the escalation of hostilities between states.
Stepsto War
Warsaregenerallythe productof an extended,dynamicprocess.WilliamDixon describes
interstateconflictasa "dynamicprocessthatunfoldsthrougha seriesof stages."49 Muchto the
sameeffect,JohnVasqueznotesthat "warsgrowout of a long-termpoliticalrelationshipthat
has becomeincreasinglyintractable,conflictive,and hostile."50Notably, even in the periods
in which internationallaw permittedstateswide latitudeto wage war as an instrumentof
nationalpolicy-indeed, asa sovereignright-the generalexpectationwasthatrecourse towarwas
an actof lastresort.51 effortsof justification
Historyis repletewithexamplesof statesundertaking
48
JOHNA. VASQUEZ, THEWARPUZZLE199 (1993).
49 Dixon, note 38, at 656.
supra
50 note 48, at 42.
VASQUEZ, supra
51
See,e.g.,BROWNLIE, supranote 24, at 21-22.
2006] HUMANITARIANINTERVENTIONAND PRETEXTSFOR WAR 117
andemployingpeacefulandcoercivemeasures beforeinitiatinganarmedattack.52Evenatthepoint
thatstatesbegindeveloping warplans,theprocesscanstillbeprotracted.Accordingly, it isnecessary
to considerfeaturesof the generalprocessandassociatedpatternsof statebehavior.We needto
understand theconditionsunderwhichstatesprogress fromaninitialstageof adiplomaticdispute
to a militarized interstatedispute(MID)53andthento the onsetof war.
In detailingthis process,Vasquezcoined an expression-the "stepsto war"-to denote
practicesthat statesadoptin responseto a disputethat can, regardlessof intentions,increase
the likelihoodof war.54ForVasquez,thesestepsinclude:elevatingindividualswho adhereto
a "powerpolitics"paradigm(realpolitik)to positions of greatergovernmentalauthority;
engagingin armsbuildups;and forgingmilitaryalliances.55 He contendsthat thesepractices
have the perverseeffect of generatingdangerouslevels of insecurity,distrust,and hostility
betweenadversaries. WhetherVasquezis correctabouttheseparticularpracticesis not relevant
for the moment. Here, the key points arethat the roadto wargenerallyinvolvesa long-term
process,andthatchangesin domesticpoliticalconfigurations andinterstaterelationscanunin-
tentionally accelerate the speed with which the process unfolds-and increasethe likelihood
that it will, in the end, lead to war.
Understandingwarin thesetermshasthreeimplicationsfor legalizingUHI. First,consid-
eringwar as the outcomeof a processfocusesattentionon politicalinteractionsduringthat
processand on the sequenceof events.56Depending on when it occurs,the invocationof
humanitarianjustificationscanshapeboth how actorsrespondto the conflictandsubsequent
stepsto war. For example,actionstakenin the name of humanitarianism may affectwhich
are
expertgroups empowered within governmental circlesand which collective beliefsabout
the situationdevelopin the courseof the conflict.
Second,examiningthe onsetof warasa processhelpsto illuminatenot only the theoretical
significanceof relativelydiscretestagesin the process,but potentialtransitionsbetweenthose
stages.57Most importantin this respectareMIDs- conditionsof tensionbetweenstatesthat
involvea threatto use force, a show of force, or the limited use of force.58In considering
humanitarianintervention,it is importantto recognizethat in some casesan aggressivestate
intendsto actonly or initiallywithin the realmof an MID. Nevertheless,asVasquezsuggests,
stepstakenduringor in reactionto that MID can escalateinto war.As discussedbelow, the
issuesaroundwhichMIDs areframedcandeterminethe likelihoodof suchescalation.In other
cases,of course,leadersof aggressivestateswill,fromthe outset,intendto wagewar.Eventhen,
52
JackS. Levy,OntheEvolutionofMilitarizedlnterstateConflicts,in THE PROCESSOFWAR:ADVANCINGTHE
SCIENTIFICSTUDYOFWAR219, 221-22 (StuartA. Bremer& ThomasR. Cusackeds., 1995) (discussinggeneral
patternsof statepracticein the periodafter1816); LEBOW,supranote 42, at 26.
53The term"MID"is usedin the of war.An MID involvesa conflictshortof war
commonly empiricalstudy
thatincludesa threat,overtdisplay,or useof force.Joneset al.,supranote 37, at 168 ("Theterm'militarizedinter-
statedispute'refersto unitedhistoricalcasesin whichthe threat,displayor useof militaryforceshortof warby one
memberstateis explicitlydirectedtowardsthe government,officialrepresentatives, officialforces,property,or ter-
ritory of another state.").
54
VASQUEZ,supranote 48, at 155.
55Id. at 153-97.
56 StuartA. Bremer, OFWAR,supranote 52, at 1, 12
AdvancingtheScientificStudyof War,in THEPROCESS
("[T]hegenesisandevolutionof militarizedinterstateconflictcanbe betterrepresentedby a processmodelbecause
the transitionfrompeaceto war... is a multistageprocedurein which the sequenceof eventsand choicesplaysa
criticalrole.").
57 Dixon,
supranote 38, at 656 ("Thinkingof conflictasa dynamicprocessthatunfoldsthrougha seriesof stages
directsattentionto transitionsbetweenstagesand,in particular,to thequestionofwhy onlysomeinterstatedisputes
escalateto the point of militaryresolution.").
58 See
supra note 53.
118 THEAMERICAN LAW
OFINTERNATIONAL
JOURNAL [Vol. 100:107
TheFoundationforUsingForce
75 Senese&
Vasquez,supranote 72, at 292-93. The regimeand foreignpolicy MIDs areclusteredso closely
togetherthatthe rangeof the former(measuredby a 90 percentconfidenceinterval)completelyoverlapsthe latter.
Seeid. at 293.
76 Id.at
285;seealsoid. ("Thisindicatesthata researchdesignthatlooksonlyatwhetherthecurrentMID escalates
intowaris a misspecifiedtest.It cannotbeoveremphasized thata properlyspecifiedtestrequiresawindowofoppor-
tunity;otherwiseimportantpatternsmight be suppressed."); cf PaulD. Senese& JohnA. Vasquez,Assessing the
Stepsto War,35 BRIT.J. POL.SCI.607, 616 (2005) (explainingthat"useof five-yearwindow(orsometimeslonger)
hasa longhistoryin thefield").The authorsalsoconductananalysisto determinewhetherindividualMIDs escalate
into warwith no five-yearwindow.While the resultsareconsistentwith the authors'theoreticalconclusionthat
territorialMIDs aresignificantlymorewarpronethan regimeor foreignpolicy MIDs, the resultsdemonstratea
widergap betweenregimeand foreignpolicyMIDs. Specifically,with no five-yearwindow, 19.6 percentof ter-
ritorial,.025 percentof regime,and .004 percentof foreignpolicyMIDs escalateinto war.The differencebetween
regimeandforeignpolicyMIDs, however,is arguablylessimportantwhenone considersthatthe lowerconfidence
bound of regimeMIDs (.009) is the sameas the higherconfidencebound of foreignpolicyMIDs (.009).
77Vasquez& Henehan,supranote 71, at 123.
78 Id. at 1 andInterstate
31; cf PaulR. Hensel,ChartingaCourseto Conflict:TerritorialIssues Conflict,1816-1992,
in A ROADMAPTO WAR,supranote 62, at 115, availableat <http://garnet.acns.fsu.edu/lphensel/Research/
chart98.pdf>(usingaggregateddisputeratherthandyadicmodel,but findingthat"theoddsof escalationinto war
overthreetimeshigherfor disputesinvolvingterritorialissuesthan for disputesoverothertypesof disputes")(in
subsequentcitationsto article,pagenumbersreferto onlineversion);seealsoPaulD. Senese,Territory, Contiguity,
andInternational Conflict:Assessinga
NewJointExplanation, 49 AM.J. POL.SCI.769 (2005) (tbls.1b, 2, & 3) (find-
ing thatterritorialMIDs, betweenboth contiguousstatesand noncontiguousstates,weresignificantlymorelikely
to escalateinto warthan nonterritorialMIDs).
79 In
disputesbetweentwo majorstates,territorialdisputesshowa muchhigherprobabilityof escalatingintowar
(.42), which is well abovethe baseprobabilityof war(.246). Foreignpolicydisputes(.177) arenontriviallyhigher
than regimedisputes(.056). Vasquez& Henehan,supranote 71, at 135. All variablesarestatisticallysignificant.
80
In disputesbetweenmajorandminorstates,territorialdisputesagainshowa muchhigherprobabilityof esca-
latingintowar(.478), whichis stillwell abovethe baseprobabilityofwar (.206). Regimedisputes(.122) arehigher
than foreignpolicydisputes(.091)-but only marginallyso. Id. at 135. All variablesarestatisticallysignificant.
81
In disputesbetweentwo minorstates,territorialdisputesretainthe highestprobabilityof escalatinginto war
(.235)-again, wellabovethe baseprobability(.147). Here,regimedisputes(.133) arenontriviallyhigherthanfor-
eign policy disputes(.05). Id. However,the regimevariablelacksstatisticalsignificance.
82
SeeHensel,supranote 78, at 25. Hensel findsthat theseresultspersistwhen differenttypesof resolutionsto
the initialMID-stalemate, decisivevictory,or compromise-are takeninto account.Id. at 26-27. Compromise
outcomes,however,arenot statisticallysignificant.Id. at 27.
83 Id. at 26.
122 THE AMERICANJOURNALOF INTERNATIONALLAW [Vol. 100:107
One might speculate that the issues that dominate disputes between two states-for exam-
ple, 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 explana-
tions. 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
security risks in claiming materially unimportant territory.88Among the most escalatorycat-
egories of territorialdisputes are irredentist claims involving geographic areasof historical or
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 behav-
ior. Other scholars attribute the disproportional importance of territory to the symbolic and
emotive power of nationalism, cultural heritage, and, on occasion, ethnic affiliation.92As Paul
84 This
partof thestudyexamines a particularpattern-thatis,whenanissue-specificMIDis followedbyan
allianceandthenanother MID,regardless of type.Vasquez explains thepattern
that"[p]osing thiswayassuresthat
alliancemaking[oneofthecommonstepstowar]isconnected withinvolvementinMIDs."SeeVasquez, supranote
64, at 21.
85 Id.Allthree variables
arestatistically
significantin thisanalysis. betweenthe
Thesamepatternof disparities
differentMIDsholdswhenindependent forarmsracesandenduring
variables areadded.Whentheseaddi-
rivalries
tionalvariablesareincluded,regimeMIDsarestilllesslikelyto escalateintowar(.686)thanforeignpolicy(1.127)
orterritorialMIDs(1.533).Id.Withthevariables forarmsracesandenduring rivalries
included,however,thevari-
ableforregimeMIDsis no longerstatistically significant.
86 See, e.g., GARYGOERTZ & PAUL F. DIEHL, TERRITORIALCHANGESAND INTERNATIONALPOLITICS
(1992)(discussing schoolsofthought);
competing Charles & Russell
S.Gochman andtheRoad
J.Leng,Realpolitik
to War:AnAnalysis andBehavior,27 INT'LSTUD.Q. 97, 100 (1983) (makingrealistassumptionwith
ofAttributes
within,andcontiguous
respectto territory of a state).
to, nationalborders
87 See, e.g., PAULK. HUTH, STANDINGYOUR GROUND: TERRITORIAL
DISPUTESAND INTERNATIONAL
CONFLICT(1996). Moreover,retainingexpansiveterritorial mayimposecostsondeveloping
possessions countries,
manyofwhichfindit difficultto maintain andadministrative
security areas.Cf.K.J.
controlovervastgeographic
HOLSTI, PEACEAND WAR: ARMED CONFLICTSAND INTERNATIONAL
ORDER, 1648-1989, at 309 (1991);
GOERTZ& DIEHL,supranote 86, at 20.
88
See,e.g., HUTH,supranote 87, at 94, 188.
89
See,e.g.,id.at 82-84, 110-11; cf ErrolA. Henderson, orContiguity:
Culture theSimilarity
EthnicConflict,
ofStates,and the Onsetof War,1820-1989, 41 J. CONFLICT RESOL.649 (1997).
90See,e.g.,HUTH,supranote87, at 182-83.
91 Senese& Vasquez,supranote 72, at 277; VASQUEZ,supranote 48, at 151-52.
92
DisputesBetweenStatesa CentralCauseof nter-
Hensel,supranote78, at 4; PaulK. Huth, WhyAreTerritorial
in WHATDO WEKNOWABOUTWAR?supranote 59, at 85, 100;DavidNewman,RealSpaces,
nationalConflict?
Symbolic Interrelated
Spaces: in theArab-Israeli
Notionsof Territory Conflict, MAPTOWAR,supranote
inA ROAD
62, at 3, 16.
2006] HUMANITARIANINTERVENTIONAND PRETEXTSFOR WAR 123
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
shape the content of political discourse.101For 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
influenc[e] the type of policy a country pursues."102As one of their case studies, Cortell and
Davis examine the U.S. domestic political processes following Iraq'sinvasion of Kuwait. Spe-
cifically, 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
domestically, and in doing so, framed the terms of the subsequent domestic debate."104At two
important junctures, Congress later employed the collective security norm to compel the pres-
ident to abandon a unilateralstrategyand to seek, instead, a UN mandate:first,to enforce trade
sanctions through a militaryblockade, and second, to drive Iraqiforces from Kuwait.105Cortell
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 con-
strain his range of responses to the Iraqi invasion."106
In Mythsof Empire:DomesticPoliticsand InternationalAmbition,JackSnyderidentifies
deeper 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 signif-
icant explanatorypower.107 In severalcasesthat Snyder studies, government officials and opin-
ion leaders promulgated "strategicmyths" to justify expansionist policies, and these images
101
Cf LEBOW, supranote 42, at 29, 34-35 (discussingstates'employingjustificationsthat conformto inter-
nationallyacceptedstandards);supratext accompanyingnotes 39-45.
102AndrewP. Cortell&JamesW. Davis,HowDo International Matter?TheDomesticImpactoflnter-
Institutions
nationalRulesand Norms,40 INT'LSTUD.Q. 451, 471 (1996).
103
Id. at 464-71.
104 Id. at 466.
105 Id. at
465.
106 Id. at 469.
107
SeeSNYDER, supranote96, at314 ("Insomecasesideologywasso integralto thepoliticalprocessthatit played
a centralrole in determiningwhat the individual'interestgroups'wanted.... Sometimesideologicaldynamics
merelyexaggeratedthe outcomeof interestgrouplogrollingand madeit harderto reverse.But in otherinstances
ideologicalblowbackoutlivedthe politicalcircumstances thatgaveriseto thestrategicideologies.In thiscase,with-
out referenceto ideologythereis no explanationat all.");seealsoid. at 63.
20061 HUMANITARIANINTERVENTIONAND PRETEXTSFOR WAR 125
were internalized by members of the public, elites, and, at times, proponents of the rational-
izations themselves.108For 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 pol-
icies due to hardened public and elite opinions formed around the original myths.110In a com-
parable effort to justify military ambitions, leaders of Wilhelmine Germany supported stra-
tegic myths about the aggressiveintentions of potential adversaries(Britain and Russia), the
definition of a favorablebalance ofpower, the German nation's relativestrengths, and the pros-
pects 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
explanations to strategicmyths used to justify self-defeating cooperativeforeign policy agendas
(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 regimes
116
SNYDER, supranote 96, at 308-11; cf Cortell& Davis,supranote 102, at 455 (organizing theoreticalexpec-
tationsaccordingto regimetypes).Snyderconcludesthatdemocracieswith weakercartelizationalsosuccumbto
blowbackeffects.Snyder,supranote 96, at 309 -10. AlthoughSnydersuggeststhatmediafreedomandopenpublic
debateshouldhelp to diminishthoseeffects,id. at 310, a recentcasestudyof the presentIraqconflictcastsdoubt
on the strengthof suchdemocraticchecks,seeChaimKaufmann,ThreatInflationand theFailureoftheMarketplace
ofIdeas:TheSellingoftheIraqWar,29 INT'LSECURITY 5 (2004). Snyderpostulatesthat individualdictatorships
will succumbto blowbackeffectswhen the top leadershipinternalizesstrategicmyths.SNYDER,supranote 96, at
18, 309.
supranote 96, at 35-37;
117 SNYDER, cf. REITER & STAM,supranote 115, at 24-25 ("Thereasonthat mixed
regimes are most vulnerableis that theiroligarchicsystemof governancemakesthem especiallysusceptibleto log-
rollingcoalitions.... Suchsystemsarealsomorelikelyto fallpreyto imperialmythmakingthatmakesexpansion
seem falselyappealing.").
118
SNYDER, supranote 96, at 17, 31, 312-14.
119Id. at 17, 41-42.
120
LEBOW,supra note 42, at 153-54, 293.
121
Id. at 154.
122
Rasmussen, supra note 97; SNYDER,supra note 96.
123
KUPCHAN,supra note 98, at 92.
124
Id. at 492-93.
125 This
processis especiallyrelevantin consideringtheeffectsof a permissiveruleforhumanitarianintervention.
Indeed,the pretextobjection- concernthatstateswill use a humanitarianexceptionto justifyaggressivewars-
implicitlyrelieson this understandingof the politicsof persuasion.
2006] HUMANITARIANINTERVENTIONAND PRETEXTSFOR WAR 127
(through various causal pathways such as strategic manipulation by political actors, internal-
ization by relevant members of society, and bureaucraticconformity) a new normative equi-
librium 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 decision-
makerscreate for themselves when, afterpersuading the public of a theory which justifies [mil-
itary] 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 terri-
torial 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
not be affected.127That said, this view relies on a narrow conceptual understanding of the ori-
gins ofwar. As one example, much scholarlyattention has been given to "diversionarytheories
of war"as a path to interstate conflict. Various studies suggest that leaderswho pursue aggres-
sive foreign policies to deal with domestic political turmoil will create or accentuate interna-
tional disputes.128Foreign ambitions may also derive from less calculative, more prosaic efforts
of political actors to gain or maintain popularity. The question is whether international insti-
tutions can direct those political ambitions toward more peaceful outcomes by opening ave-
nues 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. Sim-
ilarly, leading blowback studies show how foreign policy behaviors can result from the harmo-
nization of diverse domestic interests (for example, logrolled coalitions among parochial
groups), though not openly expressed as such; instead, public rationales are offered to legiti-
mize policy, and numerous options exist for how these public representations might be stra-
tegically framed.'30Once again, a goal for international institutions is to encourage represen-
tations 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 political
126
RichardRosecrance,Overextension, Problem"in International
and Conflict:The "Goldilocks
Vulnerability,
19
Strategy, INT'LSECURITY145, 149 (1995) (reviewessay).
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) (dis-
cussing the literature on "societal-level"explanations, especially including diversionary (such as scapegoating) the-
oriesof war).
129
See, e.g., HOLSTI,supra note 87, at 271-84.
130
See, e.g., SNYDER,supranote 96, at 76, 306 ("The very structure of these ideas suggests they were ex post facto
justificationsfor policyand elementsof a strategicideologyratherthanmerebeliefsor perceptions.In manycases
the conceptsunderlyingthe policy of securitythroughexpansioncameclose to self-contradiction.").
128 THEAMERICAN
JOURNAL LAW
OFINTERNATIONAL [Vol. 100:107
134 Indeed,the samemay be said for the skeptic'sargumentabove.See supratext accompanyingnote 127.
135
Also recallthat evenif an interstaterivalryis dominatedby otherissues,whethera lone incidentconcernsa
territorial,foreignpolicy,or regimeissuemaysignificantlyaffectthe maintenanceof peacebetweenthe rivals.See
supratext accompanyingnotes 84-85.
136
Diehl, supranote 60, at 338; MichaelD. McGinnis,IssueLinkageand theEvolutionofInternationalCoop-
eration,30 J. CONFLICT RESOL.141 (1986); cf. MANSBACH & VASQUEZ, supranote 60, at 200-01.
130 THE AMERICANJOURNALOF INTERNATIONALLAW [Vol. 100:107
137 T. Clifton Morgan, IssueLinkagesin International CrisisBargaining, 34 AM. J. POL. SCI. 311, 322-33, 329
(1990).
138
Paul K. Huth, DeterrenceandInternational Conflict:EmpiricalFindings and TheoreticalDebates,2 ANN. REV.
POL.SCI.25, 38 (1999).
139 HUTH,
supra note 87, at 190-91.
2006] HUMANITARIANINTERVENTIONAND PRETEXTSFOR WAR 131
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 cred-
ibility 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 human-
itarianjustificationswere disingenuous, the Kosovo intervention would serveour analytic pur-
poses even better. Regardlessof which motivations actually inspired them to act, when gov-
ernment 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 lead-
ers- 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 Milos-
evic 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 military
. . [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,FOREIGNAFF., Sept/.Oct. 1999, at 2,
4-5; cf WILLIAMG. O'NEILL, KOSOVO:AN UNFINISHEDPEACE28-31 (2002).
147
See, e.g., DAALDER& O'HANLON, supra note 144, at 192-94.
132 THE AMERICANJOURNALOF INTERNATIONALLAW [Vol. 100:107
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 empow-
erment of particularexpert groups). In the Iraq context, those effects, however, overwhelm-
ingly 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 Brit-
ish 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 con-
cluded 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."167Here, too, it appearsthat the humanitarian jus-
tification 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 interna-
tional 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 res-
olution 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 take
161
Id. at 30.
162
Id. at 31.
163
See, for example,the surveyconductedon behalfof the Pew ResearchCenterfor the People & the Press
(March20-22, 2003), at <http://www.pollingreport.com/iraq2.htm>.
164
Kaufmann,supranote 116, at 31.
165 ChaimKaufmann,
SellingtheMarketShort?TheMarketplace
Correspondence: of deasand theIraq War,29
INT'L. SECURITY202, 206 (2005).
166
DavidChandler,RhetoricWithoutResponsibility: TheAttraction Policy,5 BRIT.J. POL. &
of "Ethical"Foreign
INT'LREL.295,300 (2003) (describingdifficultyforgovernmentsin creating"an'ethical'interventionistagenda"
in the caseof Iraq,since"[t]heBritishandUS publicshaveneverbeenas enthusiasticas theirgovernmentsin pur-
suingconflictwith SaddamHussein.... Forexample,inJuly2002 whenGeorgeW. BushandTony Blairprepared
the publicfora possiblemilitaryconquestof Iraq,pollsshowedthatonly a small,anddeclining,majorityofAmer-
ican peoplewerein favour.").
167
MemorandumfromLordGoldsmithto PrimeMinisterTony Blair,Iraq:Resolution1441, para.4 (Mar.7,
2003), at <http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/28_04_05_attorney_general.pdf>.
2006] HUMANITARIANINTERVENTIONAND PRETEXTSFOR WAR 135
SummaryandAssessment
The model of pretextwars recognizesthe importanceof institutionalpressureon state
behaviorandthepotentialof internationallawto influencethatpressure.The modelattributes
specialsignificanceto lawin encouragingstatesto espouseparticularjustificationsforescalat-
ing hostilities.The modelfailsto takeinto account,however,eitherthe potentialsociological
effectsof justificatorypracticesor how, in turn,thoseeffectsinfluencethe processesthatlead
to war.
Blowbackeffectsexplainthe processby which a humanitarianjustificationcan shapepop-
ularand elite beliefs-and, ultimately,the decisionto wagewar.Threemechanismsaremost
significant:strategicpoliticalmanipulation,socialinternalization,and bureaucraticpolitics.
Notably, a standardversion of the pretextmodel assumesthat leaderswill conceal other
motives.In that event,the formalpromulgationof a humanitarianjustificationshouldexert
an even strongerinfluenceacrossthe threemechanisms.
It is not essential,however,for other motives or contestedissuesto be completelysub-
merged.The argumentthat I have presentedrecognizesthat states often act from mixed
motivesandthatmultipleissuesmightremainin contention.Indeed,pacifyingeffectsshould
occurunderavarietyof conditions-for example,whenhumanitarian concernsreceivethepri-
maryemphasisin a justificationfor war,when they disruptthe salienceof alternativeframe-
works,andwhen they constitutea secondaryissuein crisisbargaining.
The resultsofframing-- or reframing-the escalationof hostilitiesasanexerciseof human-
itarianinterventionshouldconfoundthe standardobjectionto legalizingUHI. MIDs thatare
framedarounda humanitarianobjectivearesystematically lesslikelyto resultin war,whereas
otherMIDs aresystematically morelikelyto spiralinto sucha militaryconfrontation.Studies
suggestthatthesedivergenttendenciesresultfromdifferentpopularoreliteattitudesaboutthe
issuesatstake.Particular issuesmayevokedifferentdegreesof psychicandemotiveinvestment.
Additionally,elevatingparticularissuesto serveofficiallyasa casusbellishouldinfluencebeliefs
abouttheconflict,suchastheperceived andthreatsposedbytheprospective
characteristics enemy.
Accordingly,significantsupportexistsfor both the strongand modestpositionsdiscussed
earlier.The pretextobjectionholds that aggressivestateswill use the bannerof humanitari-
anismto undertakemilitaryinterventionspursuedfor ulteriormotives.The strongposition
holdsthat legalizingUHI should,on balance,discourageaggressivewarsbetweenthose revi-
sioniststatesandtheirprospectivetargets.Existingstudieshelpprovidethefoundationforthat
claim.That is, the researchsuggeststhatrationalizingthe useof forceasa humanitarianinter-
ventionshouldreduce-relative to the existingbaseline-the projectedlevelof warsbetween
those states.
The modestpositionis easierto substantiatebut hassimilarimplications.The modestposi-
tion holds thatsomewarsof aggressionthatwould be foughtunderthe existinglegalsystem
would not be foughtin a systemthatpermitsUHI. It remainspossible,however,thaton bal-
ance,morewarsof aggressionwould be inspiredthanthe numberthwarted.Takentogether,
thesedualpossibilitiesundercutthe pretextmodel,which assumesthat the riskof aggressive
waris unidirectional; thatis, the modelassumesthatlegalizingUHI risksonly moreaggressive
wars.The evidencesuggests,moreover,thatthe oppositewill be truein manycircumstances.
Indeed,the numberof aggressivewarsmightbe greaterin the statusquo thanin a legalregime
136 THE AMERICANJOURNALOF INTERNATIONALLAW [Vol. 100:107
permitting UHI. Accordingly, even on the modest view, the pretext model cannot, by itself,
provide a sufficient reason to oppose legalizing UHI.
Part I presented the conceptual model of pretext wars. Part II evaluated the plausibility of
the model by analyzing the institutional processesthat lead states to war. In this part, I consider
potential criticisms and refinements of the preceding analysis.
Before addressing these additional considerations, I should clarify a couple of issues. First,
it deservesemphasis that this articleis intended to serveneither as a comprehensive analysisnor
as an affirmativeargument for legalizing UHI. Instead, the article considers and refutes a lead-
ing objection to legalization. As a consequence, I take no position on broader debates about
how the transformation of existing international rules might be effectuated. That is, I do not
advocate a particularmeans for legalizing UHI. Of course, some forms of legalization-such
as unilateralviolations of customary international law as a process for generating new rules-
may have destabilizing effects on the broader use-of-force regime.168Additionally, even if
generally accepted by states, a gradual evolution of customary international law might also
conceivably undermine that same regime. That is, state practice and opiniojuris that substan-
tially diverge from the UN Charter could perhaps breed disrespect for the overall system. To
avoid those kinds ofproblems, regime architectsmight choose, instead, an approachthat works
within or closer to Charter norms. For example, the Security Council could, under Chapter
VII, adopt a resolution that essentially preauthorizes UHI (and perhaps also delineates
normative criteria and reporting requirements), or governments could consent to regional
arrangementsthat permit intervention by other states in the event of a humanitarian catastro-
phe.l69 It is important to recognize that such alternativeforms of legal reform exist,170though
a comparative evaluation of them is beyond the scope of this project.17
InducingHumanitarianJustifications
One issueraisedaboveis that humanitarianjustificationsmight not appearearlyor emphatically
enough in a dispute to change the course of hostilities. As discussed previously, this concern
168
ThomasM. Franck,WhatHappensNow?The UnitedNationsAfterIraq,97 AJIL607, 614-17 (2003).
169
ProtocolRelatingto the MechanismforConflictPrevention,Management,Resolution,Peace-Keepingand
Security,Dec. 10, 1999,Art.25; ConstitutiveAct of theAfricanUnion, July11,2000, Art.4(h), OAU Doc. CAB/
LEG/23.15,availableat<www.au2002.gov.za/docs/key_oau/au_act.pdf>; cf Franck,supranote 168, at614-15
(suggestingthatdevelopmentssuchas the ConstitutiveAct of theAfricanUnion andinterpretivepracticesof prin-
cipalUN Charterorganscan potentiallyrevisecustomaryuse-of-forceruleswhile maintainingintegrityof overall
system);Farer,supranote 156, at 621, 625-26 (suggestingthat deviancythat is morecloselytetheredto existing
multilateralinstitutionsis less disruptive).
170See,
e.g., DANISHINST.INT'LAFF.,supranote 19, at 111-20 (discussingvarious"legal-political strategies
on humanitarianintervention").
171 A full evaluationwould also have to comparesuch second-order effectsof legalchangeagainstthe existing
baseline:theimpactof ongoingpracticeson use-of-forceprohibitions.The IndependentInternationalCommission
on Kosovoreport,supranote24, at 186, suggestedthatUHI is, at leastin somecircles,currentlyconsidered"illegal,
yet legitimate."One wouldhaveto weighthe extentto which thatcontinuingdiscrepancyerodesthe use-of-force
regime.Seeid. ("Allowingthis gap betweenlegalityand legitimacyto persist... seriouslyerodesthe prohibition
on the use of forcethat the World Court and otherauthoritieshavedeemedvalid. Closelyrelatedto this effect,
recourseto forcewithoutproperUN authorizationtendsto weakenthe authorityof, and respectfor, the United
Nations, especiallythe [SecurityCouncil], in the domainof internationalpeaceand security.").Additionally,if
statesarediscouragedfromrescuingvictimsof massatrocitiesdue to the existinglegalrules,the use-of-forceregime
may suffergreaterdisrespectthan a systempermittingUHI. Cf. id. ("Itneedsto be observed... that a failureto
acton behalfof the Kosovars,or a repetitionof the Bosnianor Rwandanexperienceof an insufficientUN mandate
and capabilities,would havealsoweakenedthe United Nations, probablyto a greaterdegree.").
2006] HUMANITARIANINTERVENTIONAND PRETEXTSFOR WAR 137
RationalLearningbyGovernmental
Leaders
ArbitratingBetweentheStrongandModestPositions
175 SeeHensel,
supranote 61, at 64-65 (providingdatasetasof 1992);FatenGhosn& ScottBennett,Codebook
for theDyadicMilitarizedInterstateDisputeData, Version 3.0, at 1 (Oct. 10, 2003), at <http://cow2.1a.psu.edu>
(providingdatasetas of 2001 and noting thatapproximatelythreehundredMIDs occurredfrom 1993 to 2001).
176 As Martha Finnemore
explains,"[e]veryinterventionleaves a long trail of justificationin its wake."
FINNEMORE, supranote 41, at 15. And as OscarSchachternoted, "invirtuallyeverycasethe useof forceis sought
to bejustifiedby referenceto the acceptedCharterrules."SCHACHTER, supranote 12, at 110. SeealsoGRAY, supra
note 25, at 27 ("withonly a tiny numberof exceptions[states]takecareto offera legalargumentfor theiruse of
force");supratext accompanyingnotes 39-45.
140 THE AMERICANJOURNALOF INTERNATIONALLAW [Vol. 100:107
177
PaulR. Hensel,Contentious IssuesandWorldPolitics, 45 INT'LSTUD.Q. 81 (2001);Senese& Vasquez,supra
note 72, at 289-90; Vasquez,supranote 74, at 389-90.
178
Senese& Vasquez,supranote72, at 289 -90 (discussingfindingsacrossthreeissueareasanddisprovingselec-
tion bias);seealsoSenese,supranote 78, tbls. la, 2, & 3 (findingthatterritorialdisputes,betweenboth contiguous
statesandnoncontiguousstates,weresignificantlymorelikelythannonterritorial disputesto culminatein MIDs).
179 See
Vasquez,supranote 74, at 389-90 (discussingMICHAEL BRECHER & JONATHAN WILKENFELD, A
STUDYOFCRISIS(1997)).
180 See Hensel,
supra note 78, at 25.
181Id. at 26.
182
See,e.g.,Senese,supranote78, at9 (studying1919-1995); Senese& Vasquez,supranote72, at289 (studying
1919-1992); Vasquez& Henehan,supranote 71, at 128 (studying1816-1992); Hensel, supranote 78, at 13
(studying1816-1992); Senese& Vasquez,supranote 76, at 615 (studying1816-1992); Vasquez,supranote 64,
at 14-22 (studying1816-1992); seealsoHensel,supranote 61, at 64-66 (studying1816-1992).
2006] HUMANITARIANINTERVENTIONAND PRETEXTSFOR WAR 141
CONCLUSION