Lee: The Law of War and the Responsibility to Protect Civilians: A Reinterpretation

Thomas H. Lee (Fordham Univ. - Law) has posted The Law of War and the Responsibility to Protect Civilians: A Reinterpretation (Harvard International Law Journal, forthcoming). Here's the abstract:

Professor Lee argues in this Article that customary international law permits a sovereign state to use armed force to protect civilians facing imminent risk of group extermination in another unconsenting sovereign state without United Nations (UN) Security Council authorization or a self-defence justification as codified in the UN Charter. The legal right to use such force was traditionally limited to protecting the lives of the intervening state’s own civilians or those of its allies for two reasons. First, the bedrock principle of exclusive sovereignty shielded a target state’s treatment of its own civilians; second there was consensus that international law did not permit the use of armed force to enforce the right against death of civilians in another country without its consent absent the nexus of nationality or a treaty authorizing such assistance. But, in the past dozen years, both principles have been fatally undermined by the norm of “the responsibility to protect” civilians, which pierces the veil of sovereignty for states that harm or fail to protect their peoples. Consequently, the present customary international law of war can reasonably be construed as extending the ancient civilian-protection use-of-force easement to all civilians facing state-sponsored mass killings, regardless of nationality. The life-saving easement on sovereign territory logically covers only cases where civilians are facing state-initiated group death -- genocide, massacre killings, or lethal use of atomic, biological, or chemical weapons; and also has strict proportionality and exhaustion-of-other means requirements. UN Security Council authorization or a self-defence justification is still required for military interventions in response to other mass atrocities such as ethnic cleansing, war crimes, non-lethal crimes against humanity (e.g., systemic torture), or the possession (or non-lethal use) of weapons of mass destruction, and to humanitarian crises where deaths are not caused by the state or its agents. Of course, any state’s decision to use armed force to protect foreign civilians in an unconsenting state is ultimately a matter of its own domestic law and policy choice, but international law does not prohibit such a choice in the face of mass killings, even absent UN Security Council authorization or self-defence.