Religion and Religious Intervention

Oxford Handbooks Online

Religion and Religious Intervention

Antje von Ungern-Sternberg
The Oxford Handbook of the History of International Law
Edited by Bardo Fassbender and Anne Peters

Print Publication Date: Nov 2012 Subject: Law, History of Law, International Law
Online Publication Date: Dec DOI: 10.1093/law/9780199599752.003.0013
2012

Abstract and Keywords

This chapter discusses the secularization of international law; international relations between actors of different
faiths; religion and war; and international protection of religion. It notes that the history of religion and public
international law is a history of secularization and of a development from an internal towards a neutral perspective
which treats all religions on an equal footing. In the process of secularization, religion is abandoned as a source,
and as a foundation of law, it becomes irrelevant as a factor characterizing international actors who engage in
interreligious relations, and no longer serves as a reason for justifying war in the guise of the fight against heretics,
the defence of Christianity against Muslim attacks, or the enforceable right to mission. Moreover, the Christian bias
of international law is replaced by the equal attribution (or non-attribution) of these entitlements.

Keywords: war and religion, secularization, public international law, Christianity, Muslim, interreligious relations

1. Introduction

The role of religion in public international law is a complex one. First, religion may provide a source or a foundation
of law and it may also influence concepts and norms of international law even if the latter was exclusively based
on secular sources. Second, religion may characterize the relevant actors in international law such as rulers,
peoples, States but also legal scholars. Third, religion may constitute the object of international law inasmuch as it
settles issues raised by religion, for example the status of religious minorities. As a matter of course, these three
aspects are interrelated. If influential, religious law and religious actors can shape the concepts and contents of
international law. Conversely, the rules of international law determine the role religious concepts and religious
actors may play.

All across these diverse aspects, two general developments—towards a secular legal order and towards an equal
treatment of all religions in international law—can be discerned. The latter of these claims is easily explained:
norms favouring the dominant religion are replaced by norms respecting the equality of all religions and
denomination. International law, in this chapter, is meant to comprise the legal norms regulating the relations
between relatively independent political units which are not (p. 295) subject of a superior authority possessing
full legislative, executive, and judicative competences.1 Thus, international law—dealing with war and peace,
political and trade agreements, or diplomacy—is not confined to the relations between the modern States, but can
be found throughout history, even if this chapter concentrates on early modern and modern times.

The term secularization, in this context, is not meant to characterize a sociological and political phenomenon, that
is, the decline of religious beliefs or practices as a necessary corollary of modernization. This secularization theory
modelled on a particular Western European experience of a particular time has rightly been called into question by
today's sociology of religion.2 By the same token, contemporary scholars stress the importance of religion as a
factor influencing international relations and call for the integration of religion into the corresponding political
3 4

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theories.3 In our legal context, secularization signifies that a legal order gets detached from religion.4 Thereby,
religion as a source and as a foundation of law is replaced by secular sources and foundations. Furthermore,
religious elements of law making and law enforcement, for example legal functions for religious figures (priests as
judges), religious rites (oaths, prayers, services), and the enforcement of secular goals by religious sanctions and
vice versa, are abolished.5 Indeed, this development may also be put into perspective. Empirically, one can refer
to the influence of religious concepts on international law, not only from a Christian, but also from a Muslim or a
Jewish point of view.6 Normatively, the claim made by some that legal orders cannot accept religious arguments7
may be rightly contested. As the following examples show, however, the process of secularization itself cannot be
denied.

(p. 296) It goes without saying that historiography itself may be considerably influenced by religion. There is no
such thing as a neutral and omniscient observer, therefore the writings of international lawyers and historians are
likely to reflect their respective cultural, ideological or religious background.8 This might result in a particular
interest in religion and in attempts to reappraise the role of Catholic scholars of international law9 or to list the
merits of Protestantism or Judaism.10 The relationship between a scholar's background and his or her writings,
however, is a very complex one and deserves a close look in every single case. Without such a detailed
examination, it would be highly misleading to classify international lawyers or legal historians according to their
religious affiliations, let alone to characterize international law as a Protestant or a Jewish discipline, simply
because its leading scholars in the past had a Protestant or Jewish background (as, in fact, most of the intellectual
elite of the time). In this chapter, the author's perspective is a secular Western European one—other perspectives
can be found, for example in part three of this Handbook.

2. Secularization of International Law

One can distinguish three possible approaches for construing the relationships between a legal order and a
religious one: the first considers both normatively interrelated, the second demands them to be strictly separate,
and the third, while endorsing the separation in principle, empirically acknowledges their mutual influence and
normatively accepts certain spheres of interrelationship.

With regard to international law, the first approach was prevalent throughout history until the 18th century. As
opposed to our modern law, pre-modern legal orders are characterized in general by strong links between law and
religion as well as other normative orders such as custom and morals,11 which holds also true for international law.
In Antiquity, legal sources and the sanctions incurred by infractions (p. 297) were quite frequently seen as
divine.12 In medieval times, the scholastic concept of natural law was based on a hierarchical set of norms closely
interrelated with religion: according to the terminology of Thomas Aquinas (1224/25–1274), eternal law (lex
aeterna), the divine reason, constituted the highest source of law, followed by natural law (lex naturalis), that is, its
earthly reflection recognizable to all men by human reason or divine revelation, in turn followed by human made
law (lex humana), comprising ius gentium, ‘conclusions’ from natural law, and ius civile, positive law in the form of
‘determinations’ from natural law. Besides, divine law (lex divina) placed outside this hierarchy of norms could
nevertheless define certain ultimate limits of human law. Thus, law in general and international law in particular
(that is, treaties and customary law) was founded on and shaped by religion.13 The development towards a
secularized international law goes along two lines: in early modern times, scholars of international law start to
argue for an increasing role of positive (man-made) law to the detriment of (religiously shaped) natural law, and
they secularize natural law itself, that is, replace its links with religion by links to reason. With regard to the neo-
scholastic Spanish school, this can be shown by the different role of natural and positive law in the teachings of
Francisco de Vitoria (1483–1546) on the one hand, and Francisco Suárez (1548–1617) on the other.14 According
to the former, natural law is the first and highest source of international law. The rules derived from natural law are,
however, complemented by rules based on consent, that is, treaties and custom. For the latter, whose teachings
rest on the idea of voluntarism, this order is already reversed: international law is positive, human-made law, which
is however founded upon and derives its stability from natural law.15

The Protestant humanists Alberico Gentili (1552–1608) and Hugo Grotius (1583–1645) severed international law
from its Catholic scholastic foundations. Both remained devoted to the idea of natural law founded on divine law,
but effectively reduced its religious content. According to Gentili, it is the ‘agreement of all nations about a matter’,
a practice ‘which native reason has established among all human beings’ which constitutes natural law and the law
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of nations—a definition devoid of (p. 298) any religious reference.16 As to Grotius, he did not only spell out the
unthinkable, that is, that a theory of natural law does not presuppose the existence of God, which made him known
to be the secularizer of international law.17  He also essentially reduced the principles of ‘true religion’ to a belief in
one God, thereby severing his system of international law from the teachings of a specific confession.18  Due to the
great success of his work De jure belli ac pacis, Grotius was thus the first to make a system of international law
known to a wide public which was not based on a specific Christian creed and which could theoretically exist
without religious foundations. Nevertheless, Grotius himself was still firmly rooted in Christianity and relied, in his
treatment of international law, not only on citations from classical Greek and Roman authors, but also on numerous
evidence found in the Bible.19 If the doctrinal treatment of international law resembled, insofar, the scholastic
tradition, its setting had also changed: international law was no longer an object of theologians like de Vitoria and
Suárez, but of lawyers: both, Gentili and Grotius had studied law and worked in this profession, the former as a
professor of law in Oxford, the latter as a public servant of the Netherlands and of France.

It was Emer de Vattel (1714–67),20 the most widely read writer of international law in the 18th century, who, in his
famous treatise Le droits des gens, effectively separated international law and religion. In his era, legal scholarship
had already developed into a naturalist and a positivist strand, the former focusing on natural law, the latter on
treaties and custom.21 Thomas Hobbes (1588–1679), one of the most influential positivists, based his system of law
entirely on human consent and left only a marginal role (the final origin of all legal obligations) for natural law. He
was, however, a ‘denier’, not a secularizer of international law. A positivist approach towards (p. 299)
international law centring on State practice and treaties and thereby significantly diminishing religious influences
can be found, for example, in the works of Richard Zouche (1590–1661) or Cornelius van Bynkershoek (1673–
1743). Amongst the naturalists, Samuel Pufendorf (1632–94) established a system of secular natural law nominally
still anchored in divine law, but effectively built on the precepts of reason. But Pufendorf, like Hobbes, attributed
only a very limited role to international law. Instead, it was the naturalist de Vattel who construed international law
on the basis of natural and positive law without relying on religious foundations, but—ultimately—only on the
‘nature’ of things.22 If he nevertheless extensively treated ‘piety and religion’ in a chapter of its own, religion is
dealt with as an object of law and for its positive or negative potentials.23

Thus, religion was dismissed not only as a source, but also as a foundation of international law. This secularization
of international law has not seriously been challenged ever since neither by the increasingly dominant positivist
nor by the remaining naturalist scholars.24 However, the question of mutual influence and interrelationship of
religious and secular sources or foundations of law was and still is of interest. It was, for example, quite common
among Western scholars to identify international law as the product of civilized, that is, Christian nations.25 Up until
the 20th century, this could involve claims of Western superiority over, for example, the colonized nations.26 In
more recent times, scholars acknowledge the Christian influence on international law, while at the same time
showing an interest in possible contributions of other religions27 —a position which better reflects the principle of
equality of religions and cultures.

(p. 300) 3. International Relations between Actors of Different Faiths

If religiously motivated tendencies to distrust other religions influence international law, for example by outlawing
treaties with ‘infidels’, this can impede international encounters between actors of different faiths. However, as the
practice in the Christian and in the Muslim world shows, strict doctrine was modified by the need for pragmatic
forms of cooperation. The Islamic conception of international law, as developed from the early 7th century
onwards, proceeded from the assumption of a constant war (jihād) between the Muslim world (dar al-
islam—‘house of Islam’) and the infidel world (dar al-harb—‘house of war’), which runs counter the idea of treaties
or diplomatic relations with nations of the latter.28 Nevertheless, the necessity to cooperate with non-Muslims led to
modifications of this idea. In this regard, Islamic law distinguished relations with the ‘scriptuaries’, that is, the
peoples of the book like Christians and Jews, and the ‘polytheists’. The permanent war against polytheists could
technically be suspended by temporary peace treaties of up to a time limit of ten years (a period to be extended to
twenty or twenty-five years in the 17th century), which effectively rendered short-term treaties of all sorts possible.
War against the scriptuaries could be ended if they accepted Muslim protection and religious autonomy in
exchange for paying a poll tax. The agreements between Muslim rulers and Jewish or Christian groups within and
outside the Muslim world—provided they had an international character—constituted international treaties of
principally unlimited duration. Treaties with scriptuaries as well as with polytheists had already been concluded by

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Mohammed himself, a practice to be continued afterwards. By the same token, diplomacy evolved from a mere
auxiliary of warfare (delivery of the message of Islam before the fight, negotiations, exchange of prisoners of war)
to a system of temporary missions rendering political relations between the Muslim and the non-Muslim world
possible.29 The conditions of those relations reflected the political strength of the parties involved. Notably the
legal bonds between the Ottoman Empire and European States, which started with the treaty of 1535 between
Suleiman the Magnificent and Francis I of France and were followed by other ‘capitulations’, are mostly
characterized by unilateral concessions of the Sub (p. 301) lime Porte facilitating Western trade, that is, granting
freedom of commerce and navigation, tax privileges, as well as legal and religious autonomy.30

In the Christian world, treaty making with ‘infidels’, that is, with non-Christians, was also in dispute. One possible
objection, the fact that the pagan partner would swear by his ‘false’ gods in order to confirm the treaty, had
already been rebutted as irrelevant by Augustine of Hippo (354–430). But the medieval church principally
condemned treaties with Muslims as impia foedera (ungodly alliances). This attitude, founded on suitable biblical
references, was also motivated by the desire to unite the Christian world under papal authority.31 However, political
forces as well as scholarship emancipated themselves from this doctrine. Thus, in 1413, the King of (Christian)
Poland concluded an alliance with (partly non-Christian) Lithuania aimed against the missionary crusades of the
Teutonic order in Northern Europe. At the Council of Constance (1414–18), the Polish delegate Paulus Vladimiri
justified this: in a case of extreme necessity, a Christian prince could make use of the assistance of infidels in order
to defend his country. Even if the council did not subscribe to this view, the argument of necessity became
influential for later legal reasoning.32 The capitulation between Francis I and Suleiman the Magnificent in 1535,
directed against Habsburg and the Holy Roman Empire, was considered treacherous by the rest of Europe, but
effectively paved the way for other treaties with the Ottoman empire, for example by England and the Netherlands
(fuelled by trade interests) or by the emperor himself (aimed at preventing further Ottoman attacks by the
payments of tribute).33 Furthermore, the letter of apology which Francis I sent to the pope in order to justify the
capitulation, developed the modern idea that all humans belonged to human society regardless of their religion.34
The arguments of necessity and equality also played an important role in the scholarly treatment of the matter.
Writers like Gentili or Grotius,35 by an independent reading of the biblical references, reached the conclusion that
commercial treaties with infidels were lawful, whereas military alliances outside the Christian world could be
considered legal (if at all) provided they were not directed against a Christian power. Gentili, who seems to have
opposed all military alliances, warned that the involvement with ‘infidels’ could lead to the disrespect of the law of
wars on their part.36 Grotius, on the other hand, already proceeded from the assumption that ‘the Right of making
Alliances is common to all Men, and (p. 302) admits of no Exception on the Account of Religion’.37 At the same
time, however, he stressed that alliances should serve Christianity and should not augment the power of the
infidels.38 It was de Vattel who abandoned this Christian bias and acknowledged full equality of all nations with
regard to treaty making.39

Thus, the practice of interreligious international relations was also endorsed from a legal point of view. Other
questions arising out of the encounter of different religions were equally solved in a pragmatic way. Treaty making,
for example, used to involve the confirmation by oath up until the 17th century.40 This, however, did not pose a
problem since the parties of different faiths could swear separately by their respective gods—and the oath of an
‘infidel’ was still considered to be binding.41 For parties from different Christian confessions, it was even possible to
take a common oath, as, for example, the Peace of Münster (1648)42 shows. Treaty invocations, regularly calling
upon the Holy Trinity in agreements among Christian nations, were replaced by the formula ‘in the name of God’ in
treaties between Christian and Muslim parties.43 Furthermore, diplomatic law also accounted for religious
differences. Most importantly, diplomats, whether on a permanent or on a temporary mission, had the right to freely
exercise their religion in private.44

4. Religion and War

Throughout history, religion has been a reason or a pretext to go to war. At the same time it provided strong
arguments for limiting warfare. The doctrine of just war as developed by medieval theologians severely restricted
the reasons to go to war and constitutes one of the most important influences of Christian thought on international
ius ad bellum. Furthermore, today's ius in bello also evolved from religious precursors.45 (p. 303) If
concentrating on religion as a justification for going to war, again a process towards a secularized reasoning and
towards equality of religions can be depicted: in this context, secularization means that religious arguments have

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been eventually abolished from the legal discourse (in contrast to the political sphere where the term ‘crusade’, for
example, has been revitalized in the war against terror46 ), whereas the principle of equality of religion outlaws that
certain prerogatives—the right to fight heretics, to spread the faith, to intervene on behalf of religious minorities—
are only acknowledged in favour of Christians. However, a methodological caveat applies. The general observation
that the history of public international law has focused on theory while neglecting State practice,47 also holds true
for this subject. Little research has been done on the question of how wars were justified by the parties involved48
and, in particular, how this fits into a legal doctrine.49

4.1. Ius ad bellumDoctrine

The development of ius ad bellum can be divided into three phases: first, the just war doctrine prevalent in the
Middle Ages and in the early modern period, second, the era of a sovereign States’ right to resort to war in order to
pursue political aims culminating in the 19th century, and third,—beginning after the First World War—the
prohibition of war unless justified by self-defence or collective peace enforcement.

According to the medieval doctrine,50 (at least) three elements constituted the prerequisites of a just war: (1)
auctoritas principis, meaning that only a sovereign entrusted with public authority could wage war; (2) iusta
causa, that is, a valid legal claim of resorting to force; and (3) recta intentio, that is, the rightful intention as the
subjective (p. 304) element accompanying the objective just cause. In the early modern period, the doctrine was
elaborated in two strands: the scholastic one, represented by writers like de Vitoria and Suárez, and the humanist
one, embodied notably by Gentili and Grotius.51 Both saw war as an instrument of justice, of law enforcement, of
correcting a wrong.52 But the scholastic tradition was still primarily concerned with questions of individual sin and
the punishment of injuries whereas the humanist tradition already tried to define interests and rights of States which
were to be enforced by war. This secularization of the just war doctrine continued by subsequent writers like de
Vattel.53 In Christian Europe, it was particularly under the (not yet secularized) just war doctrine that religious
arguments—fight against heretics and infidels, mission, religious intervention—played a role, since they could
establish the necessary just cause.

Interestingly, Muslim teaching also developed some restrictions on the ius ad bellum despite the assumption of
permanent war against the infidels.54 In contrast to the Christian just war doctrine, Islamic jihād did not require a
religious or a secular wrong which was to be rectified by war. Instead, the religious purpose of spreading belief in
Allah and creating a universal Islamic rule justified and demanded war in principle. However, a closer look reveals
several limitations on the right to go to war: if ‘polytheists’ had to be fought until they converted, ‘scriptuaries’ had
the option of keeping their faith provided they submitted to Muslim rule and accepted to pay poll tax. Besides,
factual circumstances led Islamic jurists to qualify the notion of permanent war and to accept its temporary
suspension or even its dormant nature. Furthermore, jihād within the Muslim world, that is, against apostates
(renouncing Islam) or dissenters (renouncing orthodox teaching), was restricted by considerations of
proportionality.

4.2. Fight against Heretics and Infidels

The fight against heretics (Christians dissenting from the orthodox doctrine) and infidels (non-Christians) was a
common phenomenon in medieval and early modern Europe.

To the medieval scholars, heretics were of much greater concern than infidels55—probably because they
presented a bigger threat to the religious and (p. 305) political order based on Christian unity. According to
Augustine, the persecution of heretics was justified. He based his argument on the phrase compelle intrare (Luke
14: 16–24), which in the biblical context referred to reluctant invitees of the Great Supper and which in Augustine's
reading means that heretics shall be compelled to come into the orthodox church.56 This reasoning, which
Augustine himself did not put into the context of just war, was subsequently taken up by many writers in their
attempts to justify wars against heretics or infidels. However, with regard to infidels, most notably Muslims, it
eventually emerged in Christian doctrine, as spelled out by Pope Innocent IV (1195–1254), the canonist Hostensis
(c. 1200–71) and Aquinas, that non-adherence to the Christian faith in itself was not a wrong justifying war. Hence,
wars of conversion were prohibited and infidels could only be fought for the commission of a wrongful act. The fight
against heretics, however, was considered justified. One argument supporting this difference was provided by
Aquinas: the coercion of infidels was prohibited since belief must be voluntary, whereas heretics had given a

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promise to uphold the Christian faith and thus could be compelled to do so.

How did this theory square with the crusades, one of the outstanding examples of religiously motivated warfare in
the Middle Ages and the early modern period? Crusades were military expeditions—into the Holy Land, against the
Moors in Spain, against the Slavs in North-eastern Europe, or against heretics like the Albigensians in France—
which were authorized by the pope and in which any Christian, after taking a vow, could participate with the view
of enjoying indulgence.57 As indicated above, the war against heretics was held to be legitimate per se, but the
task of justifying the crusades against infidels according to the doctrine of just war remained.58 And indeed, this
was done with reference to the attacks of Muslims against the Byzantine Empire, to their occupation of the Holy
Land, which was seen to belong to Christianity, and to their conquest of Spain. However, a similar reasoning was
difficult with regard to the expansionist wars against the Slavs of North-western Europe who had not attacked, let
alone conquered Christian territory. The apologetics of these forms of war were still couched in terms of the
defence of Christianity, but it was also criticized by contemporaries that the idea of the crusade was extended far
beyond the original fight in the Holy Land.59 The prominent writings of Innocent IV, Hostensis, and Aquinas on just
war doctrine only fragmentarily dealt with the crusades and, in doing so, (p. 306) concentrated on the crusades
in the Holy Land or the fight against heretics. By the same token, many of the papal crusading bulls failed to be
included in the official decretal collections compiled by Dominicans and Franciscans. It seems that the leading
scholastics were not prepared to justify all forms of war and it was also plausibly suggested that they were hesitant
to involve the church directly in bloodshed.60

The scholars of the early modern period further developed the arguments concerning the fight against infidels.
Confronted with the colonization of Southern and Central America, de Vitoria stressed that it was not justified to
wage war against the Indians on the grounds that they refused to accept the Christian faith preached to them by
the Spaniards.61 This view was affirmed by Gentili and Grotius who wrote under the impression of the religious wars
and the wars against the Ottoman Empire.62 The scholars denied that not adhering to the Christian faith constituted
a wrong in itself. Furthermore, they stressed that unbelief which was caused by ignorance and which had not been
challenged by convincing proofs of the truth of the Christian faith did not amount to a sin (a point particularly dear
to de Vitoria) and referred to the more general argument that—in contrast to the earlier reading of the passage of
compelle intrare—Christian belief was a matter of free will and could not be enforced (a point made by Gentili).
However, the humanist writers—in contrast to de Vitoria63 —were also ready to accept a just cause which came
close to the fight against infidels as such. Both acknowledged that war could be waged in order to punish sins
against nature or god.64 It is unclear, however, whether the examples given by them and by other scholars of the
time—cannibalism, sexual misconduct, idolatry, blasphemy, atheism65—reflect contemporary imaginations about
the life of the Indian aborigines or whether they represent a rather abstract compilation of possible sins perceived
to be particularly dreadful. In any event, this line of argument, which frequently referred to those committing the
aforementioned sins as ‘beasts’ or ‘brutes’, can be seen as a precursor of the modern distinction between
‘civilized’ and ‘uncivilized’ nations.66 The argument that the fight (p. 307) against heretics or infidels constituted
a just cause for war, however, has no longer been put forward since the second half of the 16th century.

4.3. Mission

Another argument prevalent in the colonial context concerned the right to preach the Christian faith. The colonialist
enterprises by Catholic Spain and Portugal effectively displayed considerable missionary zeal, as opposed to the
Dutch colonial policy, for example, with its predominant focus on trade.67 According to the early modern writers,
however, mission in itself did not constitute a just cause for war since unbelief, as mentioned above, did not
amount to an injury. Thus, the writers had to base their argument on the (illegal) hostile reactions by the infidels
evoked by (legal) Christian missionary enterprises. De Vitoria, in particular, acknowledged a right to peaceful
evangelization which could, if the missionaries met resistance by the Indians, be enforced by war. He effectively
identified two related rights of the Spanish colonialists which could give rise to resort to war: first, a right to
peacefully travel the Indian lands, to carry on trade with them and to be treated on an equal footing with other
foreigners, which he found in the law of nations, and second, the aforementioned right to mission, which he based
on the Bible.68 However, these entitlements to free movement amounting to severe qualifications of State
sovereignty were not accepted in State practice. Other neo-scholastics followed de Vitoria. Suárez, for example,
argued at great length for the enforceable right of the pope and of the princes entrusted by him for preaching the
Catholic faith to unbelievers—a privilege ultimately based on the Christian claim to truth and denied to unbelievers.

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But he also stressed that the mission should employ peaceful means and could only resort to force after being
attacked or being repeatedly refused entrance into the realm of infidel princes. This was not only demanded by
Christian teaching and practice, but also prevented to create the impression among the infidels that Christians
claimed the right to violate international law.69 However, the idea of a right to enforce a principally peaceful
mission by military means was subsequently abandoned by humanist writers like Gentili and Grotius and not taken
up afterwards.70 Instead, mission on foreign territory was considered to require the permission of the territorial
sovereign.71

(p. 308) 4.4. Religious Intervention by Military Means

Religious intervention means the interference in the affairs of another State in favour of its subjects, motivated by
religious concerns. Unlike the fight against heretics and infidels or the enforcement of a right to preach the Gospel,
religious intervention may be construed without Christian bias, in a secularized and neutral manner, that is,
justifying measures in favour of any religious minority. The idea was primarily discussed with respect to colonialism,
the religious wars and the attempts to protect Christians within and against the Ottoman empire in the 19th century.
It can refer to peaceful means as well as to the use of force.72

It was first of all de Vitoria who counted religious intervention (without using the term) among the arguments able to
justify the use of force in America.73 In doing so, he put forward two different grounds entitling the Spaniards to
fight against oppressive rulers of the Indians: the first one, founded on Christian solidarity, allowing them to free
their fellow (converted Indian) Christians from harassment and from pressure to abandon their faith, and the
second one, founded on human solidarity as commanded by the Bible, calling them to rescue innocents from
tyranny, for instance in the form of human sacrifice or cannibalism.74 Both arguments were subsequently taken up
by other scholars, who needed to justify religious intervention not only with regard to war, but also with regard to
the emerging principles of State sovereignty and non-intervention.75

During the first period, the idea of an intervention in favour of subjects of a foreign State kept its Christian bias.
According to writers like Suárez, Gentili, and Grotius, it was justified to wage war in order to protect Christians or
would-be Christians if a ruler oppressed and persecuted them, in particular if he tried to prevent a conversion to
Christianity or if he tried to compel them to abandon the Christian faith.76 However, this was not accepted in the
reverse case of a Christian ruler preventing his subjects to abandon their Christian faith. The reasons given for this
difference essentially range from the argument of truth and entitlement by God (made by Suárez) or Christian
allegiance (this point of de Vitoria is taken up by Gentili) to the already more secular aspect put forward by Grotius
that the Christian religion it not destructive, but (p. 309) beneficial to human society.77 In addition to that, the
scholars also recognized a more general title to war on grounds of humanity, that is, for the purpose of terminating
the killing of innocents.78 In a similar way, the Huguenot writer of the influential pamphlet Vindiciae contra tyrannos
(1579) argued for the possibility and even the duty of a Christian prince to render assistance to subjects of
neighbouring princes who are being persecuted on account of religion on the one hand or oppressed by manifest
tyranny on the other hand.79 In the European religious wars up until the Peace of Westphalia (1648), the argument
of a military intervention motivated by religious solidarity among confessions seems to have played a certain
role.80 However, if confessional and military lines did not completely coincide, as in the Thirty Years’ War, this
reasoning had to be modified. Thus, the manifesto justifying the Swedish intervention in the Thirty Years’ War
(1630) referred to the aim of assisting the protestant estates of the Empire and of re-establishing their religious
liberty, while at the same time not overemphasizing the confessional aspect (but concentrating on the more
general argument of defence) so as to gain the approval of Sweden's Catholic ally France.81 And the French
intervention in 1635, directed against the Spanish Netherlands, very generally claimed to assist the oppressed
population there.82

After 1648, the idea and the practice of religious intervention did not disappear.83 It is true that the principles of
State sovereignty and non-intervention became increasingly important84 and that the peace treaties ending the
religious wars to some extent accommodated the need to protect religious minorities.85 Nevertheless, the
secularized version of the right to religious intervention—disputed in post-Grotian scholarship—remained of
theoretical and practical importance, especially with regard to the treatment of Christians within the Ottoman
Empire. Writers like Christian Wolff (1679–1754) rejected the right to intervene on behalf of the subjects of another
sovereign.86 Others like de Vattel accepted a very limited right to intervention in order to help (but not to induce) a

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 Religion and Religious Intervention

people to fight against tyranny and to defend its liberties in a civil war. The examples he listed show that he had
cases of religious civil war in mind. (p. 310) But in contrast to earlier conceptions the right to assistance was now
devoid of any Christian bias.87 The State practice of the 19th century, however, was clearly motivated by
concerns for Christian minorities as several military interventions in the Ottoman Empire show: during the 1820s,
Great Britain, France, and Russia jointly supported the (Christian) Greek insurgents’ claim for autonomy and, after
the Turkish refusal to concede, deployed military forces, which eventually led to Greek independence in 1830. In
1860, widespread massacres causing the death of thousands of Christians in Syria made all five European powers
and the Ottoman Empire agree upon the deployment of European forces, which withdrew in 1861 after the violence
had stopped. In 1876, when the Sultan refused to carry out the reforms in favour of the Christians in Bosnia,
Herzegovina and Bulgaria called for by the European powers, Russia declared war on the Ottoman Empire, a war
which resulted in local autonomy for Bulgaria and in the Austro-Hungarian occupation of Bosnia and
Herzegovina.88 The intervening powers regularly tried to justify their actions with regard to existing or newly
created treaty provisions referring to the rights of religious minorities (which was, at times, rather difficult, given
that the Treaty of Paris in 1856 expressly denied a right to intervene into the affairs of the Ottoman Empire). In the
scholarly assessment of military religious interventions of the time, a rather cautious approach stressed the danger
of abuse and accepted military action only in limited circumstances.89 Others endorsed a broader notion of
intervention90 and emphasized the necessity for multilateral action.91 In this context, at least the intervention in
Syria (multilaterally agreed upon, not dominated by further strategic or political objectives) was considered legal
according to contemporary international lawyers.92 Today, the notion of religious intervention has been replaced
by the more general, albeit controversial idea of humanitarian intervention which might comprise international
action in favour of a particular group defined by ethnicity, nationality and religion.93

(p. 311) 5. International Protection of Religion

Religious diversity can be judged in both a positive and in a negative way. Apart from the modern perception of
religious pluralism as a normative ideal, the enlightened rulers in the era of absolutism, for example, knew that
attracting foreign settlers by granting tolerance to religious minorities (persecuted elsewhere) would promote trade
and industry and would strengthen their own power since they could rely on the loyalty of the settlers.94 Similarly,
the treatment of the ‘scriptuaries’ by Muslim conquerors, that is, charging a poll tax instead of enforcing
conversion, did not only entail financial, but also political advantages. However, the opposite view favouring
religious homogeneity has dominated much of Western history—due to religious orthodoxy, the fear of instability
and violence provoked by religious disputes, the perceived need of a common religious bond shared by all
subjects, and the deep mistrust against other religions (as well as other nations or other ethnicities).95 The
treatment of religious minorities and of religion—an internal affair—becomes a matter of international law if it leads
to military or non-military forms of intervention, and in particular if it forms a matter of international treaties96 which
nowadays provide for a universally recognized human right of religious freedom.97

The term ‘religious intervention’ as it was used, in particular, from the 18th to the beginning of the 20th century, did
not only refer to military measures, but very broadly to all kinds of diplomatic and political efforts in favour of
religious groups—mostly Christians or Jews—located in another State. Mistreatment and persecution of minorities in
the Ottoman Empire gave rise to several protests by Western powers; for example, on behalf of the Christians in
Crete (1866), or Macedonia (1903), and on behalf of the Armenians at the beginning of the 20th century.98
Besides, the fate of the Jews in Central and Eastern Europe evoked sympathy and intercessions by the Western
powers including the United States: Western governments objected, for example, to the expulsion of the Jews of
Prague by Maria Theresa (1744/45) or against the discriminatory treatment of Jews and the failure to protect them
against pogroms in Romania and Russia in the 19th and at the beginning of the 20th century.99 This (p. 312)
protest, voiced either discreetly or publicly, was fuelled by general humanitarian concerns, but was also based on
the international effects of these events, notably large-scale Jewish emigration to the United States, and on human
rights. With regard to the latter, religious intervention very often involved either the attempt to create treaty rights
or referred to existing treaty obligations which had been infringed.

The treaty-based human rights safeguarding religious groups or religion in general have several origins.100 Some
were obtained by a protecting power in favour of its nationals or fellow Christians living abroad, for instance
merchants, pilgrims, or minorities in conquered territories. Notably the capitulations between European powers and
the Ottoman empire accorded religious freedom to the Christians residing there. In this respect, France was

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