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Concerning Violence: A Post-Colonial Reading of the Debate on the Use of Force

  • ANNE-CHARLOTTE MARTINEAU
Abstract

This article examines the debate on the use of force ‘from the periphery’, both in the geographical sense and outside the mainstream discourse. It offers an alternative reading of the evolution of the law on the use of force, starting not with the end of the Cold War, but with the process of decolonization. My argument is that this reading is missing from the debate framed as an opposition between a restrictivist and an expansionist camp. Yet it is crucial if one wants to understand the normative pull that is left of legal concepts such as non-intervention, aggression, and self-determination.

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1 Extract from F. Fanon, The Wretched of the Earth (1963), 35.

2 Koskenniemi, M., ‘Letter to the Editor of the Symposium’, (1999) 93 AJIL 351. Charlesworth, H., ‘Feminist Methods in International Law’, (1999) 93 AJIL 379.

3 For the suggestion that we should unmoor the notion of the Third World from pre-determined geographical categories, see, Rajagopal, B., ‘Locating the Third World in Cultural Geography’, (1999) 15 Third World Legal Studies 1.

4 Among the abundant literature, see, Nesiah, V., ‘From Berlin to Bonn to Baghdad: A Space for Infinite Justice’, (2004) 17 Harv. Hum. Rts J. 75. For a recent bibliographic essay outlining TWAIL's sources, see, Gathii, J., ‘TWAIL: A Brief History of its Origins, its Decentralizing Network, and a Tentative Bibliography’, (2011) 3 Trade L. & Rev. 26.

5 This question is raised by Anghie, A. and Chimni, B.S., ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’, (2003) 2 Chinese J.I.L. 77, at 86.

6 O. Corten, Le droit contre la guerre : l’interdiction du recours à la force en droit international contemporain (2014); Kammerhofer, J., ‘The Armed Activities Case and Non-State Actors in Self-Defence Law’, (2007) 20 LJIL 89.

7 Q. Skinner, Visions of Politics. Volume I: Regarding Method (2002) 177.

8 Waxman, M., ‘Regulating Resort to Force: Form and Substance of the UN Charter Regime’, (2013) 24 EJIL 151.

9 Corten, O., ‘Regulating Resort to Force: A Response to Matthew Waxman from a “Bright-Liner”’, (2013) 24 EJIL 191. The exchange between Corten and Waxman leaves the impression that they speak totally different languages. However, I agree with Arnulf Becker Lorca that both reflect the standpoint of lawyers situated at the world's centers of power. See Lorca, A. Becker, ‘Rules for the “Global War on Terror”: Implying Consent and Presuming Conditions for Interventions’, (2012) 45 (1)NYU J. Int’l L. & Pol. 1.

10 Mutua, M., ‘Critical Race Theory and International Law: The View of an Insider-Outsider’, (2000) 45 Vill. L. Rev. 841.

11 ‘Anticipatory’ attack is usually used to describe military action against an imminent threat, while ‘preemptive’ attack is employed to describe the response to a threat that is more remote in time. For a plea in favor of the former, see for instance Van de Hole, L., ‘Anticipatory Self-Defence under International Law’, (2003), 19 (1)Am. Uni. Int’l L. Rev. 69. For an examination of anticipatory self-defence, see van Steenberghe, at 8.

12 Orford, A., ‘Moral Internationalism and the Responsibility to Protect’, (2013) 24 EJIL 83.

13 A group of critical legal scholars published a letter in the Guardian on 7 March 2003 qualifying the war against Iraq as illegal. See Craven, M., et al., ‘We Are Teachers of International Law’, (2004) 17 LJIL 363. See also Koskenniemi, M., ‘Global Governance and Public International Law’, (2004) 37 Kritische Justiz 241.

14 Anghie, A., ‘The War on Terror and Iraq in Historical Perspective’, (2005) 43 Osgoode Hall L. J. 64.

15 Gathii, J., ‘Failing Failed States: A Response to John Yoo’, (2011) 2 Calif. L. Rev. 47.

16 M. Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument (2005).

17 Martti Koskenniemi uses the terms ‘ascending’ and ‘descending’ to describe the two ways of justifying international obligations. Descending arguments trace down the sources of obligation from something superior to states, such as justice and concept of common interests; ascending arguments attempt to construct the normative order on the basis of states’ behavior, will and interests. The former stresses normativity over concreteness, while the latter concreteness over normativity. For the one making the descending argument, the opposite ascending argument is an ‘apology’ for states. For the one making the ascending argument, the opposite descending argument is ‘utopian’ and detached from reality. See also De Hoogh, at 6.

18 Corten, O., ‘The Controversies Over the Customary Prohibition on the Use of Force: A Methodological Debate’, (2005) 16 EJIL 803, at 812.

19 This conception confines self-defence to a riposte to an effective armed attack by a state or by a private group whose acts can be attributed to the state. Byers, M., ‘The Shifting Foundations of International Law: A Decade of Forceful Measures against Iraq’, (2002) 13 EJIL 21, at 25. See also Bothe, M., ‘Terrorism and the Legality of Pre-emptive Force’, (2003) 14 EJIL 227, at 299.

20 Taken to its extreme, the descending argument presents the prohibition to use force as the archetype of a peremptory norm of international law. Charney, J., ‘Anticipatory Humanitarian Intervention in Kosovo’, (1999) 32 Vand. J. Transnat’l L. 1231, at 1240. Dubuisson, F., ‘La problématique de la légalité de l’opération “Force alliée” contre la Yougoslavie : enjeux et questionnements’, in Corten, O. and Delcourt, B. (eds.), Droit, légitimation et politique extérieure : l’Europe et la guerre du Kosovo (2001), 149 at 176. Kohen, M., ‘The Use of Force by the United States after the End of the Cold War, and its Impact on International Law’, in Byers, M. (ed.), United States Hegemony and the Foundations of International Law (2003), 197 at 228. Tams, C., ‘The Use of Force against Terrorists’, (2009) 20 EJIL 359, at 359.

21 2005 World Summit Outcome, UN Doc. A/Res/60/1, (2005), paras. 77–80. The document adds no additional support for a right to attack in self-defence in situations other than an armed attack.

22 Franck, T., ‘What Happens Now? The United Nations After Iraq’, (2003) 97 AJIL 607, at 616.

23 Byers, M. and Chesterman, S., ‘Changing the Rule about Rules? Unilateral Intervention and the Future of International Law’, in Holzgrefe, J. and Keohane, R. (eds.), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (2003), 177 at 180.

24 For an early statement, see T. Ehrlich and M. O’Connell (eds.), International Law and the Use of Force (1993), 216–39. Taft, W. and Buchwald, T., ‘Preemption, Iraq, and International Law’, (2005) 97 EJIL 557. For a presentation of the different liberal trends in international law, see Simpson, G., ‘Two Liberalisms’, (2001) 12 EJIL 537.

25 Weiler, J. and Blum, G., ‘Preface’, (2013) 24 EJIL 13, at 13.

26 For the view that 9/11 was a ‘transformative event’ in global history, see R. Falk, The Great Terror War (2003). See also Banks and Criddle, at 21.

27 After all, so goes the argument, this is in line with the purpose Art. 51 is intended to serve. ‘To deprive the international community of a reasoned basis for using force threatens Charter interests and values, rather than supporting and advancing them’. Sofaer, A., ‘On the Necessity of Pre-emption’, (2003) 14 EJIL 209, at 225.

28 Krisch, N., ‘Legitimacy and Legality in International Law: An Interactional Account. By Brunnée, Jutta and Toope, Stephen J.. Cambridge, New York: CUP, 2010’, (2012) 106 AJIL 203.

29 The legality of a military action taken in self-defence should be evaluated ‘not simply in terms of certain rules, . . . but in terms of the acceptability of those responses in different contexts, to the contemporary international decision process’. Reisman, M., ‘International Legal Responses to Terrorism’, (1999) 22 Houston J. Int’l L 3, at 5.

30 T. Franck, ‘Iraq and the Bush Doctrine of Pre-emptive Self-Defence’, (20 August 2002), Crimes of War Project, Expert Analysis.

31 Bothe, M., ‘Terrorism and the Legality of Pre-emptive Force’, (2003), 14 EJIL 227, at 239–40.

32 See Corten, supra note 9, at 191.

33 Hence the observation according to which today's debate ‘has shifted towards issues of necessity and proportionality (i.e., the scope of self-defence measures)’. Tams, C., ‘The Use of Force against Terrorists’, (2009), 20 EJIL 359, at 381. See also Banks and Criddle, at 13.

34 How could it be otherwise? A state will always be ‘expansive’ in respect of one's own right to use force and ‘restrictive’ in respect of others’ use of it. It would be irresponsible for a diplomat or a drafter to be ‘absolutist’ in either direction -because such absolutism might come back later to haunt oneself and one's state.

35 For a powerful critique of both formalism and pragmatism, see Kennedy, D., ‘The International Human Rights Regime: Still Part of the Problem’ in Dickinson, R.et al. (eds.), Examining Critical Perspectives on Human Rights (2012).

36 See Corten, supra note 9, at 192.

37 See for instance Murphy, S., ‘The Doctrine of Preemptive Self-Defense’, (2005), 50 Vill. L. Rev. 699.

38 Natarajan, U., ‘A Third World Approach to Debating the Legality of the Iraq War’, (2007) 9 Int’l Comm. L. Rev. 405.

39 The dichotomy is typical of the ‘self-aggrandizing narrative of mainstream liberal international legal theory’, which suggests that international law is a bulwark against power and represents the best aspirations of a global community. Taylor, O., ‘Reclaiming Revolution’, (2011), 22 FYBIL 259, at 277.

40 The pervasiveness of ‘imperialism’ is visible in the way TWAILers reorient the focus of the debate on the use of force to broader, underlying legal issues. In the case of the 2003 Iraq war, for instance, Usha Natarajan has argued that we should assess the legality to use force not only in terms of the actual intervention but also in terms of the aftermath occupation. Natarajan, supra note 38. See also, more generally, Chimni, B.S., ‘International Institutions Today: An Imperial Global State in the Making’, (2004), 15 EJIL 1.

41 Marks, S., ‘Theme III: Global Governance: Institutions. Three Concepts of Empire’, (2003) 16 LJIL 901.

42 See for example P. Sands, Lawless World: American and the Making and Breaking of Global Rules (2006). Dupuy, P.-M., ‘The Place and Role of Unilateralism in Contemporary International Law’, (2000), 11 EJIL 19. Gray, C., ‘From Unity to Polarization: International Law and the Use of Force against Iraq’, (2002) 13 EJIL 1.

43 M. Hardt and A. Negri, Empire (2000).

44 See Marks, supra note 41, at 903. Emphasis is in the original text.

45 Alvarez, J., ‘Contemporary International Law: An “Empire of Law” or the “Law of Empire”?’, (2009) 24 (5)Am. Uni. Int’l L. Rev. 811, at 815.

46 Miéville, C., ‘Multilateralism as Terror’, (2008) 19 FYBIL 63.

47 In a similar vein, Nathaniel Berman has argued that the discussion over the imperial character of an intervention cannot be limited to the securing of a Security Council resolution. Berman, N., ‘Discussion’ in Jouannet, E. and Fabri, H. Ruiz (eds.), Impérialisme et droit international en Europe et aux Etats-Unis (2007), 125.

48 Kennedy, D., ‘Reassessing International Humanitarianism: The Dark Sides’, in Orford, A. (ed.), International Law and its Others (2008) at 147–8.

49 Following Jürgen Habermas's late writings, many have portrayed Europe as the driving force of global constitutionalism. See for instance de Frouville, O., ‘Une conception démocratique du droit international’, (2001), 120 RESS 101.

50 Alejandro Lorite Escorihuela has made the point that there may be differences in styles and in techniques between American imperialism (hard, aggressive) and European imperialism (soft, discrete). But there is one constant – imperialism. A. Lorite Escorihuela, ‘Discussion’, in Jouannet and Ruiz Fabri (eds.), supra note 47, at 314–15. For an illuminating depiction of European integration in imperialist terms, see I. Porras, ‘Les ambivalences impériales – discussion’ ibid., at 218.

51 Rasulov, A., ‘Writing about Empire: Remarks on the Logic of a Discourse’, (2010) 23 LJIL 449, at 466.

52 Gathii, supra note 15. He criticizes J. Yoo, ‘Fixing Failed States’, (2011) 99 Cal. L. Rev. 95.

53 Okafor, O., ‘Newness, Imperialism, and International Legal Reform in Our Time: a Twail Perspective’, (2005), 43 Osgoode Hall J.L. 171. See also Gathii, J., ‘Neoliberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy’, (2000), 98 Mich. L. Rev. 1996.

54 Baxi, U., ‘The “War on Terror” and the “War of Terror”: Nomadic Multitudes, Aggressive Incumbents, and the “New” International Law: Prefatory Remarks on Two Wars’, (2005), 43 (1)Osgoode Hall L.J. 7, at 24.

55 The claim of newness also occludes the fact that the non-European world was subject to paramilitary violence throughout the Cold War, often under the lead of the US and its allies. Okafor, supra note 53, at 186.

56 Anghie, A., ‘The War on Terror and Iraq in Historical Perspective’, (2005), 43 (1)Osgoode Hall L.J. 45.

57 For the argument that foreign intervention is acceptable in the state that is either unwilling or unable to prevent terrorist threats, see Sofaer, supra note 27.

58 Colonial international law relied on a distinction between civilized and uncivilized states. Even though the particular basis of civilisation varied at different historical periods (religion, culture, political or economic organisation), what remained constant was the fact that it largely excluded the non-European world. A. Anghie, Imperialism, Sovereignty and the Making of International Law (2004), 327. See also Anghie, A., ‘On Critique and the Other’, in Orford, A. (ed.), International Law and its Others (2008), 389.

59 Knox, R., ‘Civilizing Interventions? Race, War and International Law’, (2913), 26 (1)Cambridge Rev. Int’l Aff. 111, at 115.

60 Anghie, Imperialism, Sovereignty and the Making of International Law, supra note 58, at 309. Makau Mutua makes a similar argument with regard to the spread of human rights and more particularly humanitarian intervention: it ‘fits a historical pattern in which all high morality comes from the West as a civilizing agent against lower forms of civilization’. Mutua, M., ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’, (2001), 42 Harv. Int’l L. J. 201, at 210.

61 One can obviously go further back in time. For a study of self-determination prior to decolonisation, see Lorca, A. Becker, ‘Petitioning the International: A “Pre-history” of Self-determination’, (2014), 25 (2)EJIL 497.

62 Tams, C., ‘The Use of Force against Terrorists’, (2009), 20 EJIL 359, at 362. According to the author, 1989 was the ‘heyday’ of the restrictivist camp.

63 A. Cherki, Franz Fanon: Portrait (2000), 246–7.

64 J.-M. Vivaldi, Fanon: Collective Ethics and Humanism (2007), 17.

65 M. Berger (ed.), After the Third World? (2009), 2.

66 The Asian Legal Consultative Committee (which later became the Asian-African Legal Consultative Committee, then Organization) was constituted in the aftermath of the 1955 Bandung Conference.

67 The Cairo Conference, which was attended by 47 heads of state or government of nonaligned countries, adopted a Programme for Peace and International Co-operation. The text can be found in E. Osmanczky (ed.), Encyclopedia of the United Nations and International Agreements (2002), 1578.

68 See the Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in UN General Assembly Resolution 1514 (XI) of 14 December 1960, Resolution 1654 (XVI) of 27 November 1961, Resolution 1810 (XVII) of 17 December 1962 and Resolution 1956 (XVIII) of 11 December 1963. For the appraisal of the General Assembly as the best forum to ensure the ‘democratisation of international relations’, see Bedjaoui, M., ‘Non-alignement et droit international’, (1976-III) 151 RCADI 349, at 408–14.

69 The Resolution was adopted only after numerous stumbling stones. Resolution 2625 (XXV), ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’, UN Doc. A/RES/25/2625, (1970).

70 The convolute paragraph enabled ex-colonial states of Asia and Africa to assert that there were occasions warranting external participation in support of liberation movements. The legitimation of foreign military assistance was framed within ‘anti-colonialist’ struggles. See Abi-Saab, G., ‘Wars of National Liberation in the Geneva Conventions and Protocols’, (1979-IV), 165 RCADI 353, at 371. G. Tunkin, Theory of International Law (1974), 55.

71 Arangio-Ruiz, G., ‘The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations’, (1972-III) 137 RCADI 419, at 603.

72 Ibid., at 566.

73 Interestingly, Arangio-Ruiz contrasts it with the conception that Dag Hammarskjöld developed of the UN, according to which the UN is ‘primarily as dynamic instrument of government through [member states] seek to develop forms of executive action to resolve and forestall conflicts’. Ibid., at 618. For a critical analysis of the managerial role of the UN in the decolonized world, see A. Orford, International Authority and the Responsibility to Protect (2011).

74 Ibid., at 521. The UN Special Committee on Friendly Relations was established pursuant to General Assembly Resolution 1966 (XVIII) of 16 December 1963. See McWhinney, E., ‘The “New” Countries and the “New” International Law: The United Nations’ Special Conference on Friendly Relations and Co-operation among States’, (1966) 60 AJIL 1.

75 Lee, L., ‘The Mexico City Conference of the United Nations Special Committee on the Principles of International Law Concerning Friendly Relations and Co-operation Among States’, (1965) 14 (4)Int’l & Comp. L. Quarterly 1296, at 1297. For the ‘new’ countries and the Soviet bloc, the ILC appeared to be preoccupied ‘with the petit point needlework of international law rather than to be concerned with the imaginative reshaping and rewriting of international law to meet new conditions in international society’. See McWhinney, supra note 74, at 3.

76 Greenwood, C., ‘A Critique of the Additional Protocols to the Geneva Convention of 1949’, in Durham, H. and McCormack, D. (eds), The Changing Face of Conflict and the Efficacy of International Humanitarian Law (1999) at 7.

77 Abi-Saab, supra note 70.

78 Arts. 43 and 44 of the First Additional Protocol.

79 The UN General Assembly had tried to give legal substance to the notions of aggression and self-defence. One famous formulation is Resolution 3314 (XXIX), U.N. Doc. A/RES/3314 (14 December 1974).

80 International Status of South-West Africa, Advisory Opinion, 11 July 1950, [1950] ICJ Rep. 128, at 174 (Judge Alvarez).

81 On the previous mistrust manifested by newly independent states towards the Court, see Anand, R.P., ‘Attitude of the “New” Asian-African Countries towards the International Court of Justice’, (1962) 4 Int’l Studies 119. Abi-Saab, G., ‘The International Court of Justice as a World Court’, in Lowe, V. and Fitzmaurice, M. (eds.), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (1996).

82 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 1986, at 14.

83 Anand, R.P., ‘Enhancing the Acceptability of Compulsory Procedures’, (2001) 5 Max Planck UN YB 1, at 11. At the time, however, it was also feared that the Court had decided the Nicaragua case at a very high cost. See Anand, R.P., ‘The World Court on Trial’, in Pathak, R.S. and Dhokalia, R.P. (eds.), International Law in Transition: Essays in Memory of Judge Nagendra Singh (1996), at 253.

84 Richard Falk edited four books on the question, which were sponsored by the American Society of International Law. See R. Falk (ed.), The Vietnam War and International Law, vol. 1 (1968), vol. 2 (1969), vol. 3 (1972) and vol. 4 (1976).

85 Falk, R., ‘International Law and the United States Role in the Viet Nam War’, (1966) 75 Yale L.J. 1122, at 1127.

86 Murphy, C., ‘Vietnam: A Study of Law and Politics’, (1968) 36 (3)Fordham L. Rev. 453, at 453.

87 Ibid., at 457 and 460.

88 Moralism was supposed to oppose legalism. An influential dismissal of legal formalism is found in Kissinger, H., ‘The Viet Nam Negotiations’, (1969) 47 Foreign Aff. 211.

89 Falk, R., ‘Law, Lawyers, and the Conduct of American Foreign Relations’, (1969) 78 Yale L.J. 919, at 926. As we know, the Vietnam War came to a humiliating end for the US – a humiliation it would not allow itself to experience again. In 2007, seeking marshal support for his war policy, George Bush defended his military commitment in Iraq by linking the conflict there to the Vietnam War, arguing that the withdrawal of U.S. troops would lead to widespread death and suffering as it did in Southeast Asia three decades ago. M. Fletcher, ‘Bush Compares Iraq to Vietnam’, Washington Post, 23 August 2007.

90 Ibid., at 927–98.

91 Chaumont, C., ‘Analyse critique de l’intervention américaine au Vietnam’, (1968) 1 RBDI 61, at 84.

92 ‘Humanitarian intervention was still at that time very much perceived as an anachronistic doctrine that was closely tied to imperialism’. See Orford, supra note 12, at 93–4. This included both the Brezhnev doctrine and the Reagan doctrine.

93 Chaumont, supra note 91, at 93.

94 Vargas, J., ‘NAFTA, the Chiapas Rebellion, and the Emergence of Mexican Ethnic Law’, (1994), 25 (1)Cal. West. Int’l L. 1, at 13.

95 Salmon, J., ‘La proclamation de l’Etat palestinien’, (1988) 34 AFDI 37.

96 There are, of course, notable exceptions. See Scobbie, I., ‘Unchart(er)ed Waters?: Consequences of the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory for the Responsibility of the UN for Palestine’, (2006) 16 (5)EJIL 941. Miller, Z., ‘Perils of Parity: Palestine's Permanent Transition’, (2014) 47 Cornell Int’l L. J. 331 (2014).

97 D. Kennedy, Of War and Law (2006), 3.

98 D. Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (2004), 1. See also V. Nesiah, L. Eslava, and M. Fakhri (eds.), Bandung, Global History and International Law: Critical Pasts and Pending Futures (2015).

99 Anghie and Chimni, supra note 5, at 81.

100 Ibid., at 82.

101 Gathii, supra note 4, at 39.

102 To be exhaustive, any post-colonial story would need to include the attempts that Third World lawyers together with leftist international lawyers (such as René-Jean Dupuy) made in the 1960–1980s to complete the political dimension of the self-determination of Third World states with the conquest over their national resources. See for instance M. Virally, ‘Vers un droit international du développement’, (1965) AFDI 3.

103 The two vocabularies may well work together. As one of my reviewers pointed out, ‘humanitarian intervention’ appears in some cases to have been undertaken to transform ‘rogue’ states into ‘democratic’ (i.e., civilized) states that would pose no threat and provide no support for terrorists.

104 For an examination of the ways in which the end of the Cold War and the collapse of Socialism contributed to greater differentiation among Third World states and greater prospects for Third World instability, see Berger, M., ‘The End of the ‘Third World’?’, (1994) 15 (2)Third World Quarterly 257.

105 This had already started in the 1980s as a strategy of the concerted West to undermine the power of the General Assembly by qualifying its resolutions as ‘soft law’ and taking away the General Assembly's mandate over economic affairs through the increasing power of the Bretton Woods organisations.

106 Franck, T., ‘The “Power of Appreciation”: Who is the Ultimate Guardian of UN Legality?’ (1992) 86 AJIL 519. M. Bedjaoui, The New World Order and the Security Council. Testing the Legality of its Acts (1994).

107 Fassbender, B., ‘Pressure for Security Council Reform’ in Malone, D. (ed.), The UN Security Council: From the Cold War to the 1st Century (2004), at 341. In a 2002 Report, the UN Secretary-General Kofi Annan spoke of the ‘stalled process of Security Council reform’. Strengthening of the United Nations: An Agenda for Further Change, UN Doc. A/75/387, (9 September 2002), para. 20.

108 Orford, supra note 12, at 98.

109 United Nations Security Council, Resolution 1973 (17 March 2011) and Resolution 1975 (30 March 2011).

110 See the remarks by representatives of the BRICS group in the Security Council. United Nations Security Council, 6531st Meeting, UN Doc. S/PV.6531 (10 May 2011).

111 A. Bellamy, ‘The Responsibility to Protect and the Problem of Regime Change’, E-International Relations, 27 September 2011, available at: www.e-ir.info/2011/09/27/the-responsibility-to-protect-and-the-problem-of-regime-change/.

112 A. Orford, ‘The Politics of Anti-Legalism in the Intervention Debate’, Global Policy Journal, 30 May 2014, available at www.globalpolicyjournal.com/blog/30/05/2014/politics-anti-legalism-intervention-debate.

113 Dillon, M. and Lobo-Guerrero, L., ‘Biopolitics of Security in the 21st Century: An Introduction’, (2008) 34 Rev. Int’l Stu. 265, at 265. Amongst the vast literature on the subject, see Dauphinee, E. and Masters, C. (eds.), The Logics of Biopower and the War on Terror. Living, Dying, Surviving (2007).

114 Porras, I., ‘On Terrorism: Reflections on Violence and the Outlaw’, (1994), 1 Uni. Utah College L. 119, at 120.

115 She explained how ‘the rhetorical transformation of terrorists into frightening, alien outlaws leads inexorably towards a justification of repression by the state, and to excuse authoritarian regimes’. Ibid., at 144. See also Mieckli, D., ‘The Emergence of Terrorism as a Distinct Category of International Law’, (2008) 44 Texas Int’l L. J. 157, at 178.

116 Ibid., at 141.

117 Here again, the connection between ‘protection’ and targeted killings renders the concept of non-intervention almost unsuitable. For the argument that targeted killings emerged as a means for the protection of the political body, see M. Gunneflo, Targeted Killings. A Legal and Political History (forthcoming).

118 Klabbers, J., ‘Rebel with a Cause? Terrorists and Humanitarian Law’, (2003) 14 (2)EJIL 299.

119 Nesiah, V., ‘Resistance in the Age of Empire: Occupied Discourse Pending Investigation’, (2006) 27 (5)Third World Quarterly 903, at 917.

120 Ibid., at 916.

121 Mégret, F., ‘Grandeur et déclin de l’idée de résistance à l’occupation : Réflexions à propos de la légitimité des “insurgés”’, (2008) 41 RBDI 382.

122 Arnulf Becker Lorca has shown that both restrictive and expansive positions are problematic as they both reflect the standpoint of lawyers situated at the world's centers of power. From a Third World perspective, it is important to strengthen the legal position of ‘semi-peripheral’ states, that is, states that are vulnerable to hostile non-state actor presences in their territories and, therefore, more likely subject to interventions. See Becker Lorca, supra note 9.

* Senior Research Fellow, Max Planck Institute – Luxembourg []. I would like to thank Martti Koskenniemi, Usha Natarajan, Frédéric Mégret, Rose Parfitt, Immi Tallgren, and Randall Lesaffer for their comments, as well as members of my writing group in Doha (2015 IGLP workshop). All errors remain mine.

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