Criminalizing humanitarian intervention.

• Author: Murphy, Sean D.

The States Parties of the International Criminal Court (ICC) will likely vote in 2010 on whether to amend the Rome Statute to allow the ICC to prosecute the crime of aggression. If a robust amendment is widely ratified by states, and if the mechanism for triggering ICC jurisdiction in a particular situation is the ICC itself, then the ICC may emerge as an important voice in the debate over the legality of humanitarian intervention taken without Security Council authorization. Prosecutions, or at least indictments, of leaders of those interventions would considerably strengthen the hand of those who regard such intervention as illegal. Yet an unwillingness on the part of the ICC to indict and prosecute those leaders--an outcome that seems likely for incidents of true humanitarian intervention--may lend considerable credence to the view that such intervention is lawful, as well as define the conditions that characterize such intervention.

INTRODUCTION

The doctrine of "humanitarian intervention" essentially contemplates the use of military force by one state (or a group of states) against another state not in self-defense but, rather, to prevent the widespread deprivation of human rights. While such use of force might occur pursuant to authorization of the Security Council, the doctrine's principal relevance is to serve as a potential legal justification for a state or states to act without Security Council authorization, conduct sometimes referred to as "unilateral" humanitarian intervention.

As discussed in Part I below, the dominant belief among states and scholars of international law is that unilateral humanitarian intervention is not a valid legal justification for using force. Security Council authorization must be obtained for any such intervention; where such consent is not forthcoming, the values served by maintaining a strong normative system against transnational uses of force must prevail over values advanced in attempting to thwart human rights abuses. Some states and scholars, however, see international law as permitting such intervention, and some incidents of state practice--such as NATO's 1999 intervention in Serbia to protect Kosovar Albanians from the anticipated infliction of atrocities by their own government--lend credence to that position. On this account, since human rights are now an integral component of international law, the failure of a sovereign to uphold its obligations to protect its nationals concomitantly diminishes that sovereign's right to rely on the principle of non-intervention to protect it from other states. Further, even some observers who reject the notion that unilateral humanitarian intervention is presently lawful nevertheless recognize that the law may be changing, or that the international community will tolerate deviations from the law when unilateral humanitarian intervention occurs.

Scholars attempting to resolve this debate have looked to various sources as a means of supporting one position or the other. When assessing incidents of state practice that arguably constitute unilateral humanitarian intervention, one approach has been to scrutinize the formal and informal reactions to those incidents by important organs, such as the Security Council, the General Assembly, or the International Court of Justice, since these entities might be seen as serving as a "jury" for the global community about the legality of the conduct. This jurying function might be performed before the intervention takes place (ex ante jurying) or, more likely, after the intervention takes place (ex post jurying). To date, the above-mentioned organs have been unable or unwilling to consistently assess incidents of alleged humanitarian intervention, thus undermining their ability to forcefully condemn, support, or support with caveats the legality of unilateral humanitarian intervention.

One jury, however, "remains out" in the sense that it has not yet weighed in on the issue of humanitarian intervention. As discussed in Part II, the Assembly of States Parties to the Rome Statute, which created the International Criminal Court (ICC), will likely vote in 2010 on whether to amend the Rome Statute so as to allow the ICC to investigate and prosecute the crime of aggression. The language to be adopted is not yet settled, but it seems unlikely that unilateral humanitarian intervention will be expressly included or excluded from the Rome Statute's definition of aggression, or from the associated "elements of the crime" that will likely be crafted before entry into force of the amendment. While the amendment (and associated elements) may provide some openings for the argument that unilateral humanitarian intervention implicitly does not fall within the scope of such a crime, it seems more likely that the acts that typically underlie such intervention (large-scale deployment of troops or delivery of bombs across a border against a non-consenting government) will implicitly fall within the scope of the crime of aggression for purposes of the ICC. If that is the case, this article argues that there is an ironic chance (but not certainty) that the ICC, over time, will serve as a "jury" that results in the crystallization of a norm permitting unilateral humanitarian intervention.

Numerous hurdles must be overcome before the ICC could serve such a function, hurdles that should not be minimized. An amendment to the Rome Statute does need to be adopted by the Assembly, most of the states parties must then ratify the amendment to bring it into force, the amendment must be crafted so as not to allow states parties to opt out of its reach in any significant ways, and the amendment must be applied in a manner that reaches the conduct of states generally, including non-parties that use force against the territory of states parties.

Even if those hurdles are overcome, the mere fact that the ICC mandate is broad enough to potentially encompass prosecutions of leaders who engage in unilateral humanitarian intervention will likely not affect the debate about the legality of humanitarian intervention; such an effect would occur only if the Rome Statute expressly included (or excluded) such intervention as part of the crime of aggression. Further, if the mechanism for triggering ICC investigation of a crime of aggression is solely the Security Council, or perhaps the General Assembly or the International Court of Justice, then the ICC's adoption of this jurisdiction likely will not affect the debate over the legality of unilateral humanitarian intervention, since it is unlikely that those institutions will consistently, impartially, and apolitically "pull the trigger" for ICC jurisdiction over a given situation, conditions necessary for clarifying the law in this area.

However, if a relatively robust amendment is widely ratified by states, and if the mechanism for triggering an ICC investigation is the ICC itself (the prosecutor acting alone or in conjunction with the Pre-Trial Chamber), then this article maintains that there may well be a significant effect on the debate over the legality of humanitarian intervention, driven by how the ICC responds when incidents of unilateral humanitarian intervention arise over which it has jurisdiction. Prosecutions, or at least indictments, of leaders of those interventions would considerably strengthen the hand of those who oppose unilateral humanitarian intervention. Yet an unwillingness on the part of the ICC to indict and prosecute those leaders--an outcome that seems quite likely for incidents of true humanitarian intervention--may lend considerable credence to the view that unilateral humanitarian intervention is lawful, as well as define the conditions that characterize such intervention.

To demonstrate that likelihood, this article revisits NATO's 1999 intervention to protect Kosovar Albanians. Having reached that incident's tenth anniversary, it is worth asking whether such action, had it arisen at a time when there existed an ICC with jurisdiction over the crime of aggression, would have resulted in the indictment of NATO leaders by the ICC. If not, then it may unfold that true humanitarian interventions--interventions generally recognized as largely altruistic acts to protect those facing extreme peril--will be viewed as lawful even in the absence of Security Council authorization. If so, then the ICC will have assumed a very significant role in altering the perceptions of the international community concerning the use of force, potentially in a manner that significantly diminishes the role of the U.N. Security Council. Assumption of such a role may propel the ICC to significant heights as the "go-to" arbiter on the legality of the use of force, or may result in extraordinary criticism of its work and concerns about its fidelity to strict construction of the law.

Part I of this article briefly explains the conflicting views among states and in the academy about the legality of the doctrine of humanitarian intervention, and why several possible avenues for "jurying" legality to date have proven unhelpful. Part II then considers the likely approach of granting the ICC jurisdiction over the crime of aggression, with a focus on the ratification process for the amendment, and on the substance and procedure of that jurisdiction as it relates to humanitarian intervention. If various important hurdles can be overcome (which may well not be the case), this part tentatively concludes that such jurisdiction most likely will result, over time, in the crystallization of a norm that permits unilateral humanitarian intervention. Part III tests that conclusion by revisiting the Kosovo incident, which is probably the strongest precedent to date in favor of the legality of humanitarian intervention, to assess whether it would have provoked ICC indictments had there existed, at that time, an ICC with jurisdiction over a crime of aggression. Part IV concludes with some...