For recognition of a peoples' right to U.N. authorized armed intervention to stop mass atrocities.

• Published date: 22 March 2017
• Author: Bitensky, Susan H.
• Date: 22 March 2017

This Article calls for recognition under international law of a conditional peoples ' right to United Nations (U.N.) authorized armed intervention to stop mass atrocities. The condition is that non-violent strategies must have failed or must reasonably be expected to fail in achieving this goal.

If recognized, the new right will for the first time place power to obtain armed intervention in the people who are most at risk and impose a correlative duty on the U.N. to provide that intervention in qualifying cases. The right will concomitantly lift people out of the passivity of victimhood and make them active agents of their own deliverance--an amelioration consistent with and furthering human dignity.

Juridically, the new right stands on remarkably strong ground. This Article relies on standard legal reasoning to discern compelling bases for the right within no less than three different categories of international law, i.e., human rights law, jus in bello, and jus ad bellum.

To give the new right optimal leverage, this Article also urges certain structural reforms in the U.N. system. These include the addition of thematic mandates dedicated to stopping mass atrocities and the creation of another U.N. court, this one limited exclusively to reviewing and countermanding, where appropriate, Security Council deadlocks over or rejections of armed interventions thwarting mass atrocities.

 TABLE OF CONTENTS
                I. INTRODUCTION 246
                II. INTERPRETATION OF CURRENT INTERNATIONAL LAW PERMITTING
                 BUT NOT REQUIRING U.N. AUTHORIZED ARMED
                 INTERVENTIONS TO STOP MASS ATROCITIES: A JURISTIC
                 SILENCE OF THE GRAVE 252
                III. JURIDICAL BASES FOR RECOGNITION OF A CONDITIONAL
                 PEOPLES' RIGHT TO REQUIRE U.N. AUTHORIZED ARMED
                 INTERVENTION TO STOP MASS ATROCITIES 264
                 A. Bases in International Human Rights Law
                 1. The Easy Case: Deriving the Peoples' Right From
                 Existing International Human Rights Laws Against
                 Violence 265
                 2. Interconnection Between the Peoples' Right and
                 Solidarity Human Rights 272
                 a. Intermezzo: Nature and Legal Status of Solidarity
                 Rights 272
                 b. Correspondence Between the Peoples' Right and
                 the Solidarity Rights Category 277
                 c. The Peoples ' Right Is Implicit in the Solidarity
                 Right to Peace 279
                 B. Bases in Jus In Bello, i.e., in International
                 Humanitarian Law 280
                 C. Bases in Jus Ad Bellum 281
                 D. Reprise 285
                IV. PROPOSED REFORMS AT THE UNITED NATIONS TO MAXIMIZE
                 EFFECTIVENESS OF A PEOPLES' RIGHT TO U.N. AUTHORIZED
                 ARMED INTERVENTION TO STOP MASS ATROCITIES 285
                V. CONCLUSION 293
                

I. INTRODUCTION

It is the victims who obviously stand to benefit the most from a U.N. authorized armed intervention to stop mass atrocities. Yet, in the scholarly literature there is barely a whisper about empowering those in harm's way to demand and obtain such deliverance. (1)

History has repeatedly shown that international law has been, in the main, inadequate in assuring deliverance when military clout is needed. (2) The time is long past due, and unconscionably so, for international lawmakers to rectify the governing legal regime. The thesis of this Article is that a major step in the right direction would be recognition of a conditional peoples' right to armed intervention conducted or authorized by the United Nations (both types called "U.N. armed intervention") for the purpose of halting ongoing or imminent mass atrocities.

It bears emphasizing that the focus here is confined to armed interventions. Though there is no single accepted definition of "armed humanitarian intervention," this is not the problem it might seem. (3) The many definitions on offer yield essential common features which, taken together, yield a workable formulation in this context, as follows: military action by or approved by the U.N., in the territory of a state and without that state's consent, which is significantly justified by a humanitarian concern for the citizens undergoing or imminently facing mass atrocities in the state. (4)

A denouement involving combat should, of course, never be a first choice. (5) But, when peaceful conflict-resolution fails, the persuasiveness of coaxing or coercive words tends to evaporate. It is a terrible reality that sometimes there is no alternative to armed force if humanity, as noun and adjective, is to prevail. (6) The proposed right thus is conceived solely to effectuate relief in such a situation. That is why the right is framed as conditional, i.e., dependent on a showing that non-violent strategies have failed or may reasonably be expected to fail.

From what has been said above, it is self-evident that the proposed intervention right is not applicable to or useful for long-term prevention or post-conflict nation-building. This economy of scope is not meant to deride the critical importance of these sorts of intercessions. It is merely a case of author's preference; I prefer to focus on the most urgent situation for the people under attack and where, as it happens, the current law is nearly impotent in saving them. (7)

The new right's objectives are also limited to humanitarian interventions against those mass atrocities caused by or which are a part of genocide, war crimes, crimes against humanity, or ethnic cleansing. (8) The fact is that most mass atrocities are engendered by or constitutive of one of the foregoing malefactions, and that the limitation has become a received norm.

Nevertheless, the proposed right is not envisioned, despite its relative audacity, as a failsafe way of guaranteeing suppression of all mass atrocities. This Article sees the right as serving the much humbler and, hopefully, more realistic mission of making international law substantially more instrumental in causing legitimate U.N. armed interventions to happen and happen successfully when the aim is halting mass atrocities.

It should not be lost sight of either, that although the right would be available to all victims, their successful assertion of it would require fulfillment only under the condition mentioned above and would be advanced most advantageously with the help of procedures detailed later in these pages. (9) For now, it should be noted that the recommended procedures would entail at least four reforms in the U.N. system; and, it may as well be confessed at the outset that one of those would affect Security Council veto powers, though exclusively with respect to the subject of whether to authorize armed interventions against mass atrocities. (10)

I suspect that the mere mention of tampering with the veto is enough to induce many readers to heave a sigh of weariness. It is common knowledge that the Council's permanent members are extremely jealous of the veto and resistant to any weakening of it. (11) Thus, a mere eight paragraphs in, some readers may conclude that advocacy of the new right, in tandem with circumscribing this aspect of big-power dominance, is dead on arrival. Let me suggest that, like Mark Twain's first obituary, a pronouncement of death at this juncture is premature. (12) Though the idea of the peoples' right, supported by this sort of profound structural reform, is admittedly iconoclastic, the idea still deserves a full hearing. After all, the life and limb of many people are at stake; nothing has yet solved the problem of rescuing them from atrocity when peaceful means are unavailing, and the proposed remedial scheme of a peoples' right has rarely been considered and, even then, only in a cursory or ambivalent way. (13)

Indeed, one era's iconoclasm may well become a later era's conventional wisdom. The accuracy of this observation can be corroborated by just a few miscellaneous historical illustrations, e.g., before the adoption of the Nineteenth Amendment in 1920, American women had no right to vote, and, to many at the time, female suffrage was unthinkable. (14) The U.N. Convention on the Rights of the Child, as of 1989, invested the child who is mature enough to form his or her own views, with "the right to express those views freely in all matters affecting the child;" (15) before then, popular sentiment was that children should be seen and not heard. (16) And, during the Spanish Inquisition, could anyone have contemplated promulgation of a legal right to be free of torture? (17)

A new idea may seem strange when initially articulated and also turn out to be a bad idea. I am confident that a peoples' right to U.N. armed intervention to stop mass atrocities is far from being a bad idea for two reasons. From a juridical perspective, the new right conceptually fits within or arises from other rights and principles of international law, and that is so without the least belaboring or distortion. (18)

A second reason for recognizing a peoples' right to U.N. armed intervention stems from urgent policy considerations; again, that business of protecting life and limb. Since the fall of the Soviet Union, most armed conflicts have occurred intrastate as have war crimes, genocide, crimes against humanity, and ethnic cleansing. (19) In response, the world has usually stood on the sidelines or intervened without sufficient peacekeepers and materiel to provide full-scale relief. (20) The bloody specters of Rwanda and Sierra Leone during the 1990s manifest the persistence of this pattern, (21) and, as of this writing, the trend continues particularly in Africa and the Middle East. (22) Elsewhere, and because no community is immune, people may be haunted by an underlying fear that they too could someday suffer such a fate. And, are we not all slowly and imperceptibly brutalized by the frequent spectacle of indiscriminate carnage allowed to proceed to the last bloody drop? These are no small psychological burdens, whether they operate consciously or subconsciously. (23)

In any event, surely the victims of mass atrocity should be the primary rights-holders empowered to demand protection against it. They are the ones who die or are maimed, they are the ones who watch the rape and killing of family and friends, and...