Mohamed: Restructuring the Debate on Unauthorized Humanitarian Intervention

Saira Mohamed (Univ. of California, Berkeley - Law) has posted Restructuring the Debate on Unauthorized Humanitarian Intervention (North Carolina Law Review, forthcoming). Here's the abstract:

Scholars and practitioners addressing the problem of unauthorized humanitarian intervention often characterize the central difficulty of the issue as arising out of the fact that when the U.N. Security Council fails to authorize states to use military force to stop mass atrocities, the law requires a result - doing nothing - that is illegitimate and morally abhorrent. One scholarly solution to this predicament has been to subordinate considerations of legality to those of legitimacy or morality by arguing that in certain cases in which the Security Council does not authorize an intervention that should take place, the international community should tolerate the unlawful intervention as “excused” or “justified.”

This Article responds to this recent willingness to look beyond the law by illuminating the unaccounted costs of unauthorized humanitarian intervention and by proposing a more rigorous framework for assessing these uses of force. Specifically, this Article advocates a new emphasis on the systemic consequences of unauthorized intervention, focusing on the impact of unauthorized humanitarian intervention on two elements of the international system that preserve the primacy of law over power: first, the principle of sovereign equality of states, and second, the principle that military force should be used only in the common interest. This Article urges that the impact of unauthorized uses of nondefensive force on these principles, and therefore on the vitality of law in the international system, should be an essential consideration in any evaluation of unauthorized humanitarian intervention. By considering the deeper implications of looking the other way when states resort to war to protect human rights, this Article challenges the conventional account of unauthorized humanitarian intervention as raising a choice between protecting human rights and protecting sovereignty, and it contends that the roots and benefits of the prohibition against unauthorized military force should compel policy makers to consider alternatives to military force when responding to grave human rights abuses.