Beyond R2P: A Proposed Test for Legalizing Unilateral Armed Humanitarian Intervention

Author:Major Jeremy A. Haugh
Pages:1-74
 
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MILITARY LAW REVIEW
Volume 221 Fall 2014
BEYOND R2P: A PROPOSED TEST FOR LEGALIZING
UNILATERAL ARMED HUMANITARIAN INTERVENTION
MAJOR JEREMY A. HAUGH*
I. Introduction
Between April and July 1994, approximately 800,000 Rwandan
children, women, and men were slaughtered because of their ethnic ties.1
Their suffering was extreme, and their enemies were persistent:
“Families were murdered in their home[s], people hunted down as they
fled by soldiers and militia, through farmland and woods as if they were
* Judge Advocate, U.S. Army. Presently assigned as Brigade Judge Advocate, 101st
Airborne Division Artillery, 101st Airborne Division (Air Assault), Fort Campbell,
Kentucky. LL.M., 2014, The Judge Advocate General’s School, U.S. Army,
Charlottesville, Virginia; J.D., 2001, University of Maryland; B.A., 1995, Millersville
University of Pennsylvania. Previous assignments include Legal Assistance Officer,
Special Troops Battalion, 3d Infantry Division, Hunter Army Airfield, Georgia, 2006–
2007; Trial Counsel and Chief of Client Services, Multi-National Division-Center,
Baghdad, Iraq, 2007–2008; Brigade Judge Advocate, 3d Combat Aviation Brigade,
Hunter Army Airfield, Georgia and Bagram Airfield, Afghanistan, 2008–2011;
Command Judge Advocate, The Judge Advocate General’s Legal Center and School,
United States Army, Charlottesville, Virginia, 2011–2013. Member of the bars of the
Supreme Court of the United States, the Supreme Court of Pennsylvania, the Middle
District of Pennsylvania, the United States Court of Appeals, for the Third Circuit, and
the United States Court of Appeals for the Armed Forces. This thesis was submitted in
partial completion of the Master of Laws requirements of the 62nd Judge Advocate
Officer Graduate Course. The author thanks his paper advisor, Dan Stigall, as well as
MAJ Keirsten Kennedy, MAJ Marc Zelnick and Mr. Chuck Strong for their help in
developing this article into a publishable work.
1 JOSHUA JAMES KASSNER, RWANDA AND THE MORAL OBLIGATION OF HUMANITARIAN
INTERVENTION 1 (2013).
2 MILITARY LAW REVIEW [Vol. 221
animals.”2 While the suffering continued, the United Nations (UN)
Security Council argued about whether the violence in Rwanda actually
was genocide.3 A decade later, many of the same acts were repeated—
widespread and systematic rape, murder, and destruction of villages4
this time in the Darfur region of Sudan.5 The UN engaged in the same
arguments over the scope of the violence, and whether it was genocide.6
In Rwanda and Sudan, the Security Council failed to approve adequate
armed interventions in time to alleviate the suffering. The UN
framework, in which the only legal armed humanitarian interventions are
those approved by the Security Council,7 has resulted in substandard
protection of vulnerable populations.8
In 2001, the International Commission on Intervention and State
Sovereignty (ICISS) sought to improve the current international system
but ended up changing very little. In a report9 entitled The Responsibility
to Protect (R2P),10 the ICISS set out a framework for legal armed
humanitarian interventions. But the ICISS maintained the status quo
regarding authority to intervene by expressing a preference for
multilateralism, requiring Security Council approval for interventions.11
The ICISS articulated the belief that it would be “impossible to find
consensus . . . around any set of proposals for military intervention which
2 President William Jefferson Clinton, Address to Genocide Survivors at the Airport in
Kigali, Rwanda (Mar. 25, 1998), available at http://www.cbsnews.com/news/text-of-
clintons-rwanda-speech/.
3 KASSNER, supra note 1, at 3.
4 Int’l Comm’n of Inquiry on Darfur, Report to the United Nations Secretary General, ¶¶
301–05, 320–321 (Jan. 25, 2005) [hereinafter Darfur Inquiry]; see also Samuel Vincent
Jones, Darfur, The Authority of Law, and Unilateral Humanitarian Intervention, 39 U.
TOL. L. REV. 97 (Fall 2007).
5 See Darfur Inquiry, supra note 4, ¶ II.
6 Id. The report found crimes against humanity, but not genocide, in Sudan. Id.
7 U.N. Charter art. 39.
8 U.N. Secretary-General, A More Secure World: Our Shared Responsibility, Report of
the High-Level Panel on Threats, Challenges, and Change, ¶ 202, U.N. Doc. A/59/565
(2004) [hereinafter High-level Panel Report], available at https://www.un.org/en/
peacebuilding/pdf/historical/hlp_more_secure_world.pdf.
9 INTL COMMN ON INTERVENTION AND STATE SOVEREIGNTY (ICISS), THE
RESPONSIBILITY TO PROTECT [hereinafter RESPONSIBILITY TO PROTECT], available at
http://responsibilitytoprotect.org/ICISS%20Report.pdf (last visited Oct. 2, 2014).
10 Responsibility to Protect (R2P) is a relatively new formulation for humanitarian
intervention proposed in the ICISS report in 2001. The Report is based on the meetings
of a commission, appointed by the Government of Canada and a group of major
foundations in response to Secretary-General Kofi Annan’s pleas to find a consensus on
humanitarian intervention.
11 RESPONSIBILITY TO PROTECT, supra note 9, ¶ 6.28.
2014] RESPONSIBILITY TO PROTECT 3
acknowledged the validity of any intervention not authorized by the
Security Council or General Assembly.”12 The Secretary-General’s
Report on Implementing R2P reaffirmed the principle of multilateral
action and ruled out Unilateral Armed Humanitarian Intervention
(UAHI) as a legal use of force.13 The UN thus currently holds the view
that unilateral interventions—no matter the extent of human suffering—
are viewed disfavorably by the majority of the international community.
This view ensures, in some cases, that action will not be taken in time to
alleviate suffering.14
As a result, R2P’s significant failing is that it did not create a
framework for UAHI when the Security Council fails to act. Instead, the
ICISS asked—but did not answer—the question, “where lies the most
harm: in the damage to international order if the Security Council is
bypassed or in the damage to that order if human beings are slaughtered
while the Security Council stands by[?]”15
Arthur Leff,16 a professor at Yale Law School, expressed the idea
that when human beings are suffering somewhere in the world, the
international community should act to end it, no matter the political or
international law restraints. The need to help suffering people, Leff
argued, trumps any legal objections that may arise. In 1968, he wrote to
the New York Times regarding children suffering in Biafra:17
I don’t know much about the relevant law [of
humanitarian interventions] . . . I don’t care much about
international law, Biafra or Nigeria. Babies are dying in
12 Id. ¶ 6.37.
13 See U.N. Secretary-General, Implementing the Responsibility to Protect: Report of the
Secretary-General, ¶ 3, U.N. Doc. A/63/677 (Jan. 12, 2009) [hereinafter Implementing
R2P], available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/63/677
(“[T]he responsibility to protect . . . reinforces the legal obligations of Member States to
refrain from the use of force except in conformity with the Charter.”).
14 RESPONSIBILITY TO PROTECT, supra note 9, ¶ 6.37.
15 Id.
16 Professor Leff was a professor at Yale Law School from 1969–1981. The Modern
Era, 1955-Present, YALE LAW SCHOOL, http://www.law.yale.edu/cbl/modernera.htm (last
visited Mar. 25, 2014).
17 Biafra was a secessionist western African state that declared its independence from
Nigeria in 1967. Nigerian government forces defeated Biafran forces in 1968. Biafra
lost its seaports and became landlocked. Supplies could only be brought in by air.
Starvation and disease followed, and estimates of mortality ranged from 500,000 to
several million. BIAFRA, ENCYCLOPEDIA BRITANNICA, http://www.britannica.com/EB
checked/topic/64289/Biafra (last visited Mar. 1, 2014).

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