Document Type

Article

Publication Date

2009

Abstract

The collective international failure to stop genocidal violence and resulting humanitarian catastrophe in Sudan prompts the familiar question of whether the United States or, more broadly, the international community has the political will and capabilities necessary to deter or stop mass atrocities. It is well understood that mobilizing domestic and international political support as well as leveraging diplomatic, economic, and maybe even military tools are necessary to stop mass atrocities, though they may not always be enough. Other studies have focused, therefore, on what steps the United States and its international partners could take to build capabilities of the sort needed to prevent, stop, and remedy these crimes. This report approaches the problem from a different angle and asks whether the current international legal regime with regard to the use of military force — that is, international law regulating the resort to armed intervention — is appropriate and effective in deterring and stopping mass atrocities.

This report concludes that the current international legal regime could be effective in stopping mass atrocities and that none of the often proposed radical reforms to international law will be more effective in the short term. To best combat the threat of mass atrocities consistent with other U.S. foreign policy interests and priorities, the United States should take independent steps and work with allies to improve the responsiveness of the existing UN Security Council system while preparing and signaling a willingness, if the UN Security Council fails to act in future mass atrocity crises, to take necessary action to address them. The major elements of a strategy should include strong but nuanced declarations of support for the “responsibility to protect,” a diplomatic effort to work with like-minded allies on common commitments to the responsibility to protect and redoubled engagement with other states to explain the U.S. position, and integration of this outreach with U.S. diplomacy on other international legal issues.

The report’s objectives are simultaneously ambitious and modest. They are ambitious in that they aim ultimately to address a problem that has confounded policymakers and pits traditional notions of state sovereignty and concern for protecting human rights against each other. The objectives are modest, however, insofar as this report reflects no pretense that these crises can all be solved militarily, or by reforming international law, or principally by the United States and its allies. In emphasizing international norms related to intervention in mass atrocity crises, this report does not intend to emphasize the primacy of military means or coercive approaches; rather, it aims to improve the use of intervention in a supporting role and when other means are likely to be ineffective.

Besides its specific recommendations, a broader goal of this report is to integrate the study of strategy and law or norms — in other words, collective expectation for the proper behavior of states. Too often, the policy community and the international law community speak past each other on these issues: policy studies focus on political will and capabilities, relegating legal issues to a distant secondary concern; legal analyses focus on legal principles and precedents without adequate attention to their impact on policy effectiveness. This report brings together the study of strategy and law by emphasizing how political will and capabilities are not independent of international law but are shaped by it, and how the normative terrain of intervention can affect operations on the ground.

Disciplines

International Humanitarian Law | International Law | Law

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