51:3 Deciding to Intervene

Abstract

Decisions about intervention into today’s armed conflicts are difficult, dangerous, and politically complicated. There are no safe choices. Amid the climate of urgency and uncertainty in which intervention decision-making occurs, international law serves as a guide by providing rules about the legality of intervention. These rules assert that, except for in cases of self-defense, choices about when and how to intervene are to be made by the United Nations Security Council. What the rules do not provide, however, is effective guidance for the political choices the Council makes, such as how to prioritize among competing norms. When, for example, should the Council uphold the sovereignty-based norm of nonintervention and when should it authorize humanitarian intervention in alignment with the emerging norm of the Responsibility to Protect? Absent such guidance, some hold that international law becomes an after-the-fact justification for whatever decision is made or that it has no influence whatsoever.

Rejecting this view, this Article proposes that international law informs political choices about intervention through its purposive intent. The idea of law’s purposive intent—that rules and norms should be interpreted in light of their object and purpose—is rooted in legal process theory. The Article further posits that the purposive intent of international law is the promotion of peace. Under this approach, any decision to intervene must have as its overriding purpose the promotion of long-term, positive peace. This thesis offers a novel contribution to the literature on intervention by applying legal process theory to an area of inquiry dominated by substantive legal perspectives. More fundamentally, it presents a vision that reshapes the paradigm of intervention from one that mistakenly focuses on combating violence with force to one that takes seriously the daunting task of building peace.