HUMANITY AND NATIONAL SECURITY: THE LAW OF MASS ATROCITY RESPONSE OPERATIONS Keith A. Petty∗ At the point when you decide to punish, you have already failed.1 Introduction ................................................................................................................... 102 I. History of Mass Atrocities: Preventative and Response Measures ......................................................................................................... 105 A. History of Violence: Atrocity Crimes Through the Centuries ............................................................................ 106 B. Global Failure to Prevent Mass Atrocities .......................... 110 C. Modern Developments in Atrocity Prevention and Response ............................................................................ 117 1. Humanitarian Intervention ............................................. 118 2. Responsibility to Protect ................................................ 121 D. The United States and Mass Atrocity Prevention & Response Operations ......................................................... 124 1. Full Spectrum Approach ................................................ 126 2. Military Preparedness .................................................... 127 E. Atrocities in Syria ................................................................. 131 II. The Legality of Atrocity Response When the United Nations Fails to Act ...................................................................................................................... 133 A. Jus ad Bellum & Atrocity Response ..................................... 134 1. Law and the Use of Force: Article 2(4) in Context ........ 136 B. The Emergence of Contingent Sovereignty .......................... 148 ∗ LL.M., 2012, The Judge Advocate General’s Legal Center and School; LL.M. with distinction 2008, Georgetown University Law Center; J.D., 2002, Case Western Reserve University, School of Law; B.A., 1999, Indiana University. Currently a Major in the U.S. Army Judge Advocate General’s Corps, the author serves as the Senior Defense Counsel at Joint Base Lewis-McChord, WA. Previously assigned as a legal advisor to battlefield commanders in Iraq, focusing on targeting, detention, and rule of law issues. Served as a prosecutor at the Guantánamo Bay Office of Military Commissions on several cases, including U.S. v. Khadr. Clerked for a judge at the Trial Chambers of the International Criminal Tribunal for the former Yugoslavia. The views expressed in this Article are those of the author and do not reflect the official policy or position of the U.S. Army, Department of Defense, or U.S. Government. The author is indebted to the advice and assistance gratiously provided by Lieutenant Colonel Richard DiMeglio, Lieutenant Colonel Gary Johnson, Major Keirsten Kennedy, Professor John N. Moore, Professor Sean Murphy, Professor Eric Jensen, Professor Gregory McNeal, and the extraordinary editing team at the Michigan Journal of International Law. Any errors are my own. 1. Benjamin B. Ferencz, Commentary, Origins of the Genocide Convention, 40 CASE W. RES. J. INT’L L. 13, 26 (2008). 101 102 Michigan Journal of International Law [Vol. NNppp C. Nonlegal Considerations: Morality and Justification ......... 153 D. Syria and Unilateral Intervention ........................................ 156 III. Developing a Legal Norm for Atrocity Response .............................. 157 A. Norm Development Through Action and Discourse ............ 158 B. Leadership: The Will to Act ................................................. 163 C. Mass Atrocity Response Is a National & Global Security Interest ............................................................................... 167 D. Overcoming Pretext ............................................................. 169 IV. Proposed Threshold for Unilateral Atrocity Response Operations172 A. Objective Threat of Atrocity Crimes .................................... 173 B. Intervention Is Necessary ..................................................... 174 C. Proportionate Response ....................................................... 177 D. Regional and Coalition Coordination ................................. 177 E. Intervening States’ Reports to the UNSC ............................. 178 F. Intervening States’ Jus Post Bellum Planning ..................... 179 G. MARO Threshold Applied to Syria ...................................... 180 Conclusion ....................................................................................................................... 184 Introduction Among the greatest threats to global security is the slaughter of civilians. This is due to the inconsistent reaction of the international community to genocide and other atrocity crimes. Whether it was the slaughter of hundreds of thousands of Armenians in Turkey in 19152 or Rwandan Tutsis in 1994,3 mass murderers act with impunity when there is not a forceful response. Contrast these situations to Vietnam’s intervention in Cambodia in 1978 that put an end to the Khmer Rouge’s nightmarish killing fields, 4 or the North Atlantic Treaty Organization’s (NATO) intervention in Kosovo in 1999 that protected ethnic Albanians from Serb brutality.5 Even though atrocities like these have been the hallmark of oppressive regimes throughout recorded history, they continue today in places like Syria partly as a result of the uncertain legality of the use of force to respond to these crimes. Strict interpretation of state sovereignty and the United Nation’s monopoly on authorizing force significantly limit effective response measures, allowing grotesque human rights violations to continue. In order to break the atrocity cycle, states must have the authority to use force to prevent and respond to atrocity crimes when the United 2. See discussion infra note 36. 3. See discussion infra note 50. 4. See discussion infra note 45. 5. See discussion infra notes 49, 122 and accompanying text. Season 201x] Humanity and National Security 103 Nations fails to act. A new strategy, led by the United States, is emerging in response to atrocity crimes. 6 The doctrine of Mass Atrocity Response Operations (MARO)7 is developing as a result of several high-level reports and strategic publications highlighting the urgent need for more effective measures.8 Further support came on August 4, 2011, when President Barack Obama issued a presidential directive to create an interagency “Atrocities Prevention Board.”9 This interagency body is tasked with coordinating a government wide approach to preventing mass atrocities.10 Of the many possible actions that can be taken to prevent atrocity crimes, military action—noncombat or outright intervention—must be included as a key element to deter and suppress violence. Still, due to the uncertain legality of intervention to halt atrocities, the new U.S. strategy could have a short life span largely due to inflexible interpretations of the U.N. Charter’s prohibition on the use of force and traditional notions of state sovereignty. Until now, scholarship has failed to address the application of MARO when there is no U.N. authorization. This article proposes that the United States take the lead in developing a new norm allowing states to intervene to protect civilians from atrocity crimes when multilateral institutions fail to act. This can be accomplished in two complimentary ways. First, the United States should engage the world community—the United Nations, states, nongovernmental organizations (NGOs), the public, and the media—in a discursive process challenging the failure of the status quo to effectively stop the next Rwanda. Highlighting the institutional and practical ineffectiveness of the current legal regime will demonstrate that atrocity prevention is a global and state priority in need of a new normative standard. Second, during the interpretive phase of a positive norm, like-minded states should work together to respond to mass atrocities with force if necessary and use the developing norm as the basis for intervention. Instead of waiting for global consensus on the positive law, which may never occur, 6. See SARAH SEWALL ET AL., MASS ATROCITY RESPONSE OPERATIONS: A MILITARY PLANNING HANDBOOK 97 (2010) [hereinafter MARO HANDBOOK]. 7. Mass Atrocity Response Operations (MARO) are the future of U.S. military initiatives to halt mass murders. The military intervention of MARO is a subset of atrocity response measures falling under the full spectrum of Mass Atrocity Prevention and Response Operations (MAPRO), which include diplomacy, intelligence gathering, economic, and other measures to prevent and respond to atrocity crimes. See id. 8. See MADELEINE K. ALBRIGHT & WILLIAM S. COHEN, PREVENTING GENOCIDE: A BLUEPRINT FOR U.S. POLICYMAKERS (2008) [hereinafter GENOCIDE REPORT]; MARO HANDBOOK, supra note 6, at 23. 9. Directive on Creation of an Interagency Atrocities Prevention Board and Corresponding Interagency Review, 2011 DAILY COMP. PRES. DOC. 1 (Aug. 4, 2011) [hereinafter Presidential Directive]. The Atrocities Prevention Board was formally activated in April 2012. See President Obama Announces Creation of Atrocities Prevention Board, HUM. RTS. FIRST (Apr. 23, 2012), http://www.humanrightsfirst.org/2012/04/23/president-obama- announces-creation-of-atrocities-prevention-board/. 10. Presidential Directive, supra note 9. 104 Michigan Journal of International Law [Vol. NNppp this approach contributes to the gradual development of a customary norm—even when violating