Journal Article

The Natural Right to Intervene

Richard V. Meyer and Mark David ‘Max’ Maxwell

in Journal of International Criminal Justice

Volume 7, issue 3, pages 555-573
Published in print July 2009 | ISSN: 1478-1387
Published online July 2009 | e-ISSN: 1478-1395 | DOI: http://dx.doi.org/10.1093/jicj/mqp048
The Natural Right to Intervene

Show Summary Details

Preview

One can draw a parallel between the restrictions states place on their soldiers’ use of force and the manner in which the United Nations restricts a state's use of force under Article 2(4) of the Charter. This parallel is useful in showing how both the ‘sovereigns’ limitations on the use of force are, in turn, limited by rule of law principles of natural justice that go beyond self-defence and into the realm of the defence of duress, necessity and coercion, giving rise to a justification or an excuse. The United Nations' absolute restriction on the use of force, therefore, should be limited by more than just the self-defence provision of Article 51 and would potentially allow unilateral humanitarian intervention in extreme circumstances. The US military courts, in dicta, have implied a balancing test in which the order to not use force can be trumped by the imminence and severity of the threat to the innocent; therefore, continued obedience would no longer be mandated. This conclusion, as highlighted by George Fletcher and Jens Ohlin in their book, Defending Humanity, is rooted in the evolution of both law and philosophy.

Journal Article.  9042 words. 

Subjects: Criminal Law ; International Law

Full text: subscription required

How to subscribe Recommend to my Librarian

Users without a subscription are not able to see the full content. Please, subscribe or login to access all content.