The legitimacy of the United Nations’ use of armed force in defence of the fundamental human rights on nationals

This thesis explores the constitutional legitimacy of the United Nations’ use of armed force to protect nationals from governmental violation of their human rights. The viability of the use of armed force is also considered. The thesis does not purport to be concerned with United Nations military intervention in cases, which, though being threats to international peace and security, do not arise from or turn on governmental violations of the fundamental human rights of nationals. It is advanced herein that the constitutional legitimacy of the United Nations use of armed force to protect nationals from governmental violations of their human rights primarily turns on the violations creating a threat to international peace. It is argued that consequences of extensive, deliberate and persistent governmental violation of nationals’ human rights could constitute a threat to international peace. It is further argued that, notwithstanding the existence of a threat to the peace, where the use of armed force may impact negatively on the maintenance of international peace it may not be legitimate in constitutional terms for the United Nations to apply armed force. Even where the constitutional grounds for the United Nations resort to armed force are met, the view is expressed herein that the raison d’etre for the resort to armed force in any particular situation must not be ignored. Where the raison d’etre is the need to protect nationals against a government violating their human rights, the probable impact of the United Nations’ use of armed force must be a major consideration in the decision whether or not to apply armed force. It is argued that there exists a real probability of high civilian casualties where armed force is applied against a target government in areas where the target government is intermingled with the local population. Consequently, it is suggested herein that, armed force not be used. Were one to discount the fear of high civilian casualties consequent on the use of armed force, the point is made in the thesis that, despite the end of the cold war, most United Nations member states lack the political will, resources, and national tolerance levels necessary to equip the United Nations to carry out prompt, strong and sustainable military action in defence of nationals from governmental violation of their rights. Against this background, but more particularly, the probability that the use of armed force may impact negatively on the human rights of the nationals sought to be protected, it is suggested herein, as an alternative to the use of armed force, the early imposition of target-government-focused-sanctions by the United Nations. The position is taken that imposing such sanctions during the early days of governmental repression may help preempt the escalation of the human rights violations, and perhaps significantly reduce, if not eliminate the violations altogether. To facilitate the early imposition of these sanctions, it is suggested, inter alia, that a Security Council Resolution be adopted expressly incorporating in the Security Council’s interpretation of matters which constitute threats to international peace, “extensive and persistent” governmental violations of human rights. The interpretation of “extensive and persistent” will be left to a specialised United Nations’ department advocated herein, to wit the “Governmental Sanctions Department.” This Department, in its determination of “extensive and persistent” human rights violations, will rely not on the strict grammatical meaning of the phrase “extensive and persistent,” but rather, on the urgency to first, preempt the escalation of the governmental human rights violations, and second, to forestall the outbreak of local armed rebellion or unilateral foreign interventions which may be consequential on large scale and prolonged governmental human rights abuses. Reducing the probability of the eruption of armed hostilities within the target state may also reduce pressure on the United Nations to intervene militarily, in defence of the rights of nationals as the need for such intervention may be eliminated.Law, Peter A. Allard School ofGraduat