Stopping genocide through international agreement when the Security Council fails to act.

I. INTRODUCTION

Despite the development of positive, explicit and clearly applicable international law, including the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), (1) the United Nations (UN) has been unable or unwilling to prevent or stop the most extreme and widely publicized cases of human fights abuses. These include genocide in Rwanda, ethnic cleansing in Kosovo, politically motivated exterminations in Cambodia, and the ongoing systematic slaughter of men, women, and children in Darfur. Other mass atrocities have occurred throughout the world in the last fifty years in Angola, Burma, Somalia, Indonesia, Chile, Sierra Leone, Bosnia, and Iraq, among other places. (2)

There is tension between two core international law values: "respect for state sovereignty and a commitment to peaceful relations among states, on the one hand, and the protection of basic human fights, on the other." (3) While the UN has recently adopted a new norm--the Responsibility to Protect (4)--regarding the positive meaning of sovereignty and the obligation of states to prevent genocide, the veto power of the Security Council's permanent members continues to block effective international coercive action. The UN is not likely to reform itself any time soon with respect to this issue. (5) The tension inherent in UN values combined with the UN's inability to reform itself suggests that international law reform needs to take place outside the framework of the UN. The political philosopher and professor, Allen Buchanan, succinctly sets forth this argument:

 
   If reform through treaty within the U.N system is unworkable, 
   proponents of reform should consider the possibility of a 
   treaty-based approach that simply bypasses the UN system. The 
   most likely and morally defensible version of this alternative 
   would be a coalition of liberal-democratic states, bound together 
   by a treaty that would specify some well-crafted criteria 
   that must be satisfied for intervention to be permissible in the 
   absence of Security Council authorization. The constraining 
   criteria would presumably include familiar elements of just war 
   theory, such as proportional force and protection of noncombatants, 
   but might also make a limited concession towards the UN 
   system by requiring General Assembly or Security Council 
   resolutions condemning the human fights violations that provoke 
   the need for intervention. (6) 

This article argues two propositions: (1) that emerging customary law norms permit, and in some cases compel, humanitarian armed intervention to stop genocide when the Security Council has failed to do so; (7) and (2) that the international community should adopt a treaty that allows for enforcement of the Genocide Convention by permitting action independent of the UN in accordance with specific criteria tailored to ensure that armed force is necessary, proportional, limited in duration, and has reasonable prospects for success. (8)

The first proposition is based on several post-World War II developments. These include the repeated failure of the UN to prevent large-scale atrocities and the inclination of some states to engage in humanitarian intervention not authorized by the UN. This intervention has been largely accepted by the international community and is sometimes justified by liberal interpretation of the UN Charter and other treaty provisions. Other important developments include the judgment of the International Court of Justice (ICJ) that the Genocide Convention requires states to employ all means reasonably available to prevent genocide. This judgment is reinforced by the recent emergence of the principle referred to as the Responsibility to Protect: the notion that countries have an affirmative obligation--not just a right--to protect citizens of other countries from genocide. Finally, there have been developments in moral and natural law theory and changing conceptions of sovereignty that have contributed to new perspectives on humanitarian intervention.

The second proposition flows from the fact that international humanitarian law is not exclusively dependent upon the UN. The UN's failure to act quickly and effectively to prevent genocide has accelerated the development of international law to the point that the international community has accepted unauthorized ad hoc efforts by states and regional organizations to prevent or stop atrocities. This unregulated and unauthorized use of force invites abuse. It also creates uncertainty as to which intervention is and is not legitimate. The international community should prevent abuse and uncertainty by committing to a treaty that sets forth clear standards and limitations regarding the rights and duties of states to prevent genocide.