INTRODUCTION

The international community has arrived at a crossroads in legitimizing the use of military force for humane purposes. Since 2005, a guiding principle for both national and international responses to certain kinds of assaults on civilian populations has been the much promoted “Responsibility to Protect” (R2P), which the United Nations General Assembly adopted unanimously as a procedural instrument for both non-military and military means of protecting civilians. In reality, however, the military dimensions of R2P have constituted a well-intentioned sideshow for what actually has transpired throughout modern history and to the present day, namely, that it is national governments and organizations that determine when, how, and under what legal justification to intervene militarily across sovereign borders to confront the enemies of humankind. In the result, there is little coherence to what justifies the use of military force in the twenty-first century. Conventional international law, including the law of war, has become a time-warped body of law, projecting rules of behavior that either relate to a world that no longer exists or a fantasy world that is far too perfect for those who must seek peace and security amidst global chaos.

In this Chapter, we take a few modest steps toward piercing the veil of both R2P and the doctrine of humanitarian intervention to propose three paradigms for the future lawful application of military force in the service of humanitarian objectives. Specifically, our objective is to strengthen the legal justifications and thus effective application of both doctrinal traditions – one (R2P) quite new and the other (humanitarian intervention) of considerable heritage – to confront a complex world of threats from state and non-state actors and the plight of civilians suffering in the midst of armed conflicts, international terrorism, and atrocity crimes. Our proposed paradigms challenge the intransigence and political resistance to effective and timely use of military force to protect civilian populations from large-scale assaults imperiling their survival.

The first paradigm examines four opportunities under U.N. Charter law that if utilized could provide stronger legal bases to respond to humanitarian crises. One of these would be to address the problems inherent with the use of veto power in the U.N. Security Council.

I have known well each of the prosecutors who wrote the chapters of this book. Some entered my professional life in the early 1990s. Others arrived many years later, after I had left government service for academia. Having negotiated the creation of each of the war crimes tribunals of The Founders, other than the one Robert Jackson steered, I have long been deeply invested in what these men toiled to accomplish during their tours of duty on the front lines of international criminal justice. Of course, it is notable that no women were among the founders, a fact my former boss, Dr. Madeleine Albright (former US permanent representative to the United Nations and former US secretary of state), recognized in the selection of Louise Arbour and Carla del Ponte as Richard Goldstone's successors for the International Criminal Tribunals for the former Yugoslav (ICTY) and Rwanda (ICTR). In later years, women served as the chief prosecutors of the International Criminal Court (ICC) and the Special Court for Sierra Leone (SCSL), and its successor the Residual Special Court for Sierra Leone. But in the beginning, for each tribunal, it was a male-led venture strongly supported by women in the prosecutorial ranks who skillfully helped guide a multitude of trials to their conclusion.

The stories related in this book shape the historical significance of how the improbable war against impunity for atrocity crimes (genocide, crimes against humanity, and war crimes) actually was waged in its earliest years. There were no advance scripts written for this endeavor. Robert Jackson, Richard Goldstone, Luis Moreno Ocampo, David Crane, and Robert Petit wrote their own strategies for the prosecution of war criminals who needed to be investigated, indicted, captured, tried, and either acquitted or convicted if history were to treat the founding prosecutors kindly. Each man confronted seemingly insurmountable challenges of law, bureaucracy, politics, finances, geography, or indicted fugitives evading capture. They have the right to complain about such obstacles; their frustrations fertilize these pages. It is an imperfect world, and they stepped into some of the greatest imperfections. But they had the courage to surmount these initial barricades to justice and bring the perpetrators of evil on Earth to a reckoning they never imagined.