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.

For almost the first half-century since its creation under the United Nations Charter in 1945, the United Nations Security Council spent relatively little of its time focusing on matters of international criminal justice. The Security Council is first and foremost the guardian of international peace and security under the Charter. It has attempted to fulfil that responsibility during a long and controversial history of mandating compliance with international law, imposing economic sanctions to coax recalcitrant nations towards acceptable behaviour, setting up peacekeeping operations to facilitate implementation of peace settlements or to defuse violent stand-offs between warring parties, and approving peace enforcement actions that might delegate to national military combat forces the task of intervening in an armed conflict or humanitarian calamity with the aim of ending it.

Original intent

One would be hard pressed to find anything, even inferentially, in the travaux préparatoires, or negotiating records, of the United Nations Charter – either at Dumbarton Oaks in 1944 or San Francisco one year later – that points to establishing the Security Council for the purpose of building international criminal tribunals or using judicial tools to compel compliance by individuals (of whatever allegiance). Rather, as with its predecessor, the Permanent Court of International Justice under the League of Nations, the International Court of Justice was conceived as the UN Charter's instrument of judicial remedies. But the jurisdiction of the International Court of Justice is directed towards the conduct of UN Member States and their governments and thus entails State responsibility. Absent is the typically domestic task of criminal justice that disciplines individuals for well-defined and actionable crimes. One may safely assume, based on any evidence to the contrary, that as the Second World War came to a close and the United Nations emerged from that global war's massive assault on humankind, the idea of using the Security Council to promote international criminal justice simply had not registered with the founders of the United Nations.

Soon, however, the United Nations International Law Commission, responding to a request by the General Assembly, adopted the Nuremberg principles in 1950, thus confirming that there was broad international endorsement of the illegality of atrocity crimes, namely, genocide, crimes against humanity, and serious war crimes following the Nuremberg military tribunal trials.

INTRODUCTION

The drafting of a comprehensive International Convention on Crimes Against Humanity (Convention) raises the fundamental question of whether and how the emerging principle of the responsibility to protect (R2P) will be integrated with the legal obligations set forth in a finalized Convention. It is entirely possible to draft the Convention without any reference to R2P and without even any inference of the relationship between the defined crimes against humanity set forth in the Convention and the State responsibility measures that frame the application of R2P. Indeed, the anticipated approach to such a drafting exercise might be to set forth a State responsibility to criminalize well-defined crimes against humanity in domestic law for purposes solely of individual criminal responsibility, but to remain silent with respect to the responsibility of the State itself, including its government and military, to protect civilian populations from the commission of crimes against humanity by the State and its institutional organs.

In this chapter, I propose a more ambitious methodology. The reason R2P arises as a challenge for State action and, in more extreme circumstances, Security Council action, is because of the commission of genocide, crimes against humanity, ethnic cleansing, or war crimes (hereinafter together referred to as “atrocity crimes”) of such gravity that a moral and arguably legal duty arises to end the criminal conduct.