Humanity & National Security: The Law of Mass Atrocity Response Operations

Abstract

As the world watches civilian slaughter in Syria, the United States is refining a whole of government approach to prevent and respond to genocide and other atrocity crimes. Military intervention under the recently developed concept of Mass Atrocity Response Operations (MARO) will certainly be included as part of any planning contingency, following diplomatic, economic, and multilateral actions. The current state of international law, however, only permits the use of force, to prevent atrocity crimes or for any other reason, if authorized by the UN Security Council (UNSC) or in self-defense. When the UNSC fails to act — as it has so often in the past — any MARO action taken by a State or group of States without a self-defense justification will be highly contentious and likely unlawful. As a result, political paralysis ensues and mass atrocities continue apace. Witness Assad’s massacre. This article argues that individual States or groups of States must have the authority to intervene to halt atrocity crimes, even without UNSC approval. Initially, the historical State-centric legal regime, including the UN framework, has proven incapable of effectively dealing with widespread human rights violations. As a result, the international community is embarking on a civilian centric approach, including the concept of Responsibility to Protect (R2P), which has contributed to the erosion of State sovereignty and fostered the legitimacy — if not legality — of unilateral action. In order to overcome legal obstacles to protecting civilians from slaughter, U.S. decision-makers must take the lead in developing norms that will effectively halt ongoing atrocities through a discursive process at the international and domestic level, and, if necessary, through transgression of existing law. Besides outlining steps to develop a positive or customary legal norm, this article prescribes a principled threshold for MARO application, which will lead to greater international acceptance of this strategy and, ultimately, the effective arrest of ongoing atrocities.