Aggression

Vol. 41, Nos. 2 & 3 (2009)

 

Terrorist Financing

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Security Detention

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The Genocide Convention

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Religion and Terror

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Lessons From the Saddam Trial

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The Fifth Plague

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International Justice and Shifting Paradigms

Vol. 38, No. 2 (2006-07)

 

Rebuilding Nation Building

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Torture and the War on Terror

Vol. 37, Nos. 2 & 3 (2006)

 

 

 

CRIMINALIZING HUMANITARIAN INTERVENTION

 

Sean D. Murphy

 

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 . . .

 

41 CASE W. RES. J. INT’L L. 341 (2009).

 

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